Non Fatal Offences

R v Mowatt [1968] 1 QB 421. The defendant was convicted under s20 following an attack he had carried out on a police officer, during which he had rained blows on the officer's face and pushed him roughly to the ground. Regarding the term 'maliciously' Lord Diplock stated: "In the offence under section 20 the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, ie a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result."

R v Constanza [1997] Crim LR 576 The defendant was convicted of occasioning actual bodily harm. The victim was a female ex-colleague. Between October 1993 and June 1995 he followed her home from work, made numerous silent telephone calls, sent over 800 letters, repeatedly drove past her home, visited her against her expressed wishes, and on three occasions wrote offensive words on her front door. In June 1995 the victim received two further letters which she

interpreted as clear threats. She believed that he had "flipped" and that he might do something to her at any time. In July she was diagnosed as suffering from clinical depression and anxiety. It was the doctor's view that the defendant's actions had caused this harm. The Court of Appeal held that the issue before the Court was whether it was enough if the Crown have proved a fear of violence at some time not excluding the immediate future. In the Court's view it was. It was an important factor that the defendant lived near the victim and she thought that something could happen at any time. The judge was entitled to leave to the jury the question whether or not she had a fear of immediate violence, and the jury were entitled to find that she did. The Court rejected the defence submission that a person cannot have a fear of immediate violence unless they can see the potential perpetrator. It rejected a further submission that an assault could not be committed by words alone without a physical action. The indictment made it clear that the assault relied on was that constituted by the last letter.

DPP v Parmenter [1991]. The defendant had caused injury to his young baby by tossing him about in a way which would have been acceptable with an older child, but not with one so young. He did not realise that he might cause harm by this action. The House of Lords held that he could not be liable under s20 as he had not foreseen the risk of any harm. It was not necessary under s20 that he foresee the grievous bodily harm which must be caused, but the defendant must foresee that he might cause some harm. An alternative verdict under s47 was substituted.

Collins v Wilcock [1984] 3 All ER 374

A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty. Held: The police woman's actions amounted to a battery. The defendant's action was therefore in self defence and her conviction was quashed. Goff LJ stated that implied consent existed where there was jostling in crowded places, handshakes, back slapping, tapping to gain attention provided no more force was used than is reasonably necessary in the circumstances. There was no consent given for the grabbing of the arm.

R v Lamb [1967] 2 QB 981 Two boys were playing with a revolver. There were two bullets in the chamber but neither were opposite the barrel. The two boys believed that this meant it would not fire. One of the boys pointed the gun at the other and fired. As he pulled the trigger the chamber turned and the gun went off killing the boy. The other was charged with unlawful act manslaughter. Held: There was no unlawful act as no assault had been committed as the victim did not believe the gun would go off therefore he did not apprehend immediate unlawful personal violence.

Tuberville v Savage (1669) 1 Mod Rep 3 King's Bench Division

The defendant put his hand on his sword and stated, 'if it were not assize-time, I would not take such language from you'. Assize-time is when the judges were in the town for court sessions.

It was held that this did not amount to an assault as the words indicated that no violence would ensue.

Threats of future violence will not amount to an assault. Smith and Hogan's Criminal Law (4th ed.), p.351 states, "There can be no assault if it is obvious the complainant the defendant is unable to carry out his threat, as where D shakes his fist at P who is safely locked inside his car." However, the courts have adopted a more liberal approach to the requirement of immediacy:

Indecent Assault - Women consented through deceit to nature not quality of act R v Tabassum (2000) The Times, May 26, Court of Appeal

It was the prosecution case that Tabassum had asked several women to take part in a breast cancer survey he was carrying out in order to prepare a database software package to sell to doctors. The three complainants consented to Tabassum showing them how to carry out a breast self- examination, which

involved taking off their bras and allowing Tabassum to feel their breasts. Tabassum had no medical qualifications or training and each of the complainants said that they had only consented because they thought he was so qualified. There was no evidence of a sexual motive. Counsel for Tabassum had made an application at the trial that the case should be discontinued on the basis that the complainants had undoubtedly consented and such consent was not negatived by deception, except where identity was in issue and the nature and quality of the act done was different from that for which consent was given. He referred to R v Linekar [1995] QB 250, R v Richardson (Diane) [1999] QB 444 and R v Clarence (1888) 22 QBD 23. Counsel for Tabassum submitted that the lack of medical qualifications on the part of Tabassum did not change the nature and quality of the act, which was exactly what the complainants had consented to. The judge ruled against that submission and Tabassum was subsequently convicted. On appeal, Counsel for Tabassum submitted that the judges ruling was wrong. In the Court's judgment the authorities could be analysed in this way: the wife in Clarence and the prostitute in Linekar both consented to sexual intercourse knowing both the nature and quality of that act. The additional unexpected consequences of infection in one case and non-payment in the other were irrelevant and did not detract from the womens consent to sexual intercourse. In Richardson the case proceeded solely on the question of identity; the nature and quality of the act was not relied on. In the present case the judge was entitled to follow a passage from the judgment of Mr Justice Stephen in R v Clarence (at p44) which he cited in his ruling: "There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should prefer myself to say that consent in such cases did not exist at all because the act consented to is not the act done. Consent to a surgical operation or examination is not a consent to a sexual connection or indecent behaviour." The nature and quality of the defendants acts in touching these womens breasts was indecent unless the complainants had consented to that touching. On the evidence, the complainants were consenting to being touched for medical purposes not for any other reason. They were consenting to the nature of the act

but not to its quality. There was no true consent. It followed that the judges ruling was correct.

The Decision A woman who consented to the touching of her breasts, because she mistakenly believed the defendant was medically qualified, was only consenting to the nature of the act, not to its quality. In the absence of genuine consent the defendant would be guilty of indecent assault. The Court of Appeal, Criminal Division, so held in dismissing an appeal by Tabassum against his conviction at Crown Court of three counts of indecent assault for which he was sentenced to concurrent terms of nine months imprisonment.

Comment It is clear in this case that no true consent was given - as the court found; consent to a surgical operation or examination is not a consent to sexual connection. (Linekar) referred to in the judgment was a case of fraud affecting consent in Rape and it was a question of payment - a prostitute consented to sexual intercourse and thereafter it was a question of "making off without payment". The prostitute said she would never have consented if she knew the service would not be paid for, clearly she knew the nature and the quality of the act. Clarence was a case of a man knowing he had Gonorrhoea having connection with his wife, who did not know it and, as a result he infected her. Is he guilty of an offence under ss 20 or 24 of The Offences Against the Person Act 1861? The court the wife's consent was as full and conscious as consent could be. Sexual Intercourse was not obtained by any fraud either as to the nature of the act or the identity of the agent. 9 Judges of the Court of Crown Cases Reserved held it was not an offence under either section. The concept of true consent is the similar in the offence of rape. SEE R v Williams [1923] 1 KB 340 where a teacher told a victim that sexual Intercourse was a technique to improve the singing voice, this is fraud as to the nature of the act.