Indirect force sufficient to constitute offence of battery
Haystead v Director of Public Prosecutions
[2000] 3 ALL ER 850; (2000) The Times, June 2, QUEEN'S BENCH DIVISIONAL COURTThe Statute
s.39 Criminal Justice Act 1988.
Common Assault and Battery shall be a summary offence and a person guilty of either of them shall be liable to a fine. Triable summarily, Six Months' Imprisonment.
Common assault was deemed by the legislators to be one of those offences where it was necessary to increase the maximum penalty available to the courts if it was committed under racially aggravated circumstances (see the Crime and Disorder Act 1998, s. 29(1)(c). A further effect of the racially aggravated offence is that it can be tried on indictment without having to be included alongside another indictable offence as is the case with common assaults generally (see the Criminal Justice Act 1988, s. 40).
Cases referred to in judgments
DPP v K (a minor)[1990] 1 WLR 1067, DC.
Fagan v Metropolitan Police Comr [1968] 3 All ER 442, [1969] 1 QB 439,[1968] 3 WLR 1120, DC.
R v Cunningham [1957] 2 All ER 412,[1957] 2 QB 396,[1957] 3 WLR 76, CCA.
R v Ireland, R v Burstow [1997] 4 All ER 225,[1998] AC 147,[1997] 3 WLR 534, HL; affg [1997] 1 All ER 112,[1997] QB 114,[1996] 3 WLR 650, CA.
R v Martin (1881) 8 QBD 54,[1881–5] All ER Rep 699, CCR.
R v Salisbury [1976] VR 452, Vic SC.
R v Wilson (Clarence), R v Jenkins (Edward John)[1983] 3 All ER 448,[1984] AC 242,[1983] 3 WLR 686, HL.
Scott v Shepherd (1773) 2 Wm Bl 892,[1558–1774] All ER Rep 295, 96 ER 525, CP.
The Facts
The defendant Haystead had punched W twice in the face while W was holding her child, and as a direct result of that the child fell from her arms and hit his head on the floor.
Counsel for the defendant submitted that in order to have committed the actus reus of battery in the offence of assault against the child by beating, the defendant had to have used force directly to the child’s person, that a direct application of force required the defendant to have had direct physical contact with the complainant either through his body, for example, a punch, or through a medium controlled by his actions, for example, a weapon, and that was not made out.
The court considered that the right approach was set out in Smith and Hogan, Criminal Law (9th edition (1999) p406), where it was said:
"Most batteries are directly inflicted, as by D striking P with his fist or an instrument, or by a missile thrown by him, or by spitting upon P. But it is not essential that the violence should have been so directly inflicted".
Thus Stephen and Wills JJ thought there would be a battery where D digs a pit for P to fall into, or as in Martin (1881) 8 QBD 54, he caused P to rush into an obstruction.
"It is submitted that it would undoubtedly be a battery to set a dog on another. If D beat O’s horse causing it to run down P, this would be battery by D.
"No doubt the famous civil case of Scott v Shepherd (1773) 3 Wils 403; (1773) 96 ER 525 is equally good for the criminal law. D throws a squib into a market house. First E and then F flings the squib away in order to save himself from injury. It explodes and injures P.
"The acts of E and F are not ‘fully voluntary’ intervening acts which break the chain of causation. This is battery by D." The court said that approach was right subject to the qualification that there might be some cases which could be explained because they were in truth an infliction of grievous bodily harm without an assault.
But it was not necessary to find a dividing line between cases where physical harm was inflicted by assault and where it was not, because even if counsel for the defendant’s definition of battery was correct, that test was made out on the facts of the case. W’s movements letting go of the child was a direct result of the defendant punching her. There was no difference between where he used her as a medium and where a weapon was used as a medium, save that in the latter case the offence involved intention, whereas in this case the defendant was reckless.
Therefore the offence was made out and the appeal would be dismissed.
The Decision
An act by an assailant could constitute battery where it indirectly, through the medium of a third party, caused injury to the victim.
The Queen’s Bench Divisional Court so held when dismissing an appeal by Haystead by way of case stated by Justices against their decision to convict him of an assault by beating, contrary to section 39 of the Criminal Justice Act 1988.
COMMENT
"Assault", includes "Battery", R v Lynsey (1995) The Times, 4 April.
The CPS has laid down Guidelines in the case of Common Assault.
Crown Prosecution Service Charging Standards and Casework Guidelines
Common assault, contrary to section 39 Criminal Justice Act 1988
4.1 An offence of common assault is committed when a person either assaults or inflicts a battery upon another person.
4.2 An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.
4.3 A battery is committed when a person intentionally or recklessly inflicts unlawful force upon another.
4.4 It is a summary only offence which carries a maximum penalty of six months' imprisonment and/or a fine not exceeding the statutory maximum.
In that case, two separate appeals, the questions arose whether the offences of common assault and battery were statutory offences and how a charge of common assault should be formulated. In the first case the Crown Prosecution Service preferred an information against the respondent alleging that he had assaulted a named person contrary to s 39 of the Criminal Justice Act 1988. The justices dismissed the information on the ground that they had no jurisdiction to hear it because the person named as the victim had neither authorised nor laid the information. In the second case the Crown Prosecution Service preferred an information against the respondent alleging that he had assaulted and battered a named person contrary to s 39 of the 1988 Act and common law. The justices dismissed the information on the ground that it was bad for duplicity within the meaning of r 12 of the Magistrates’ Courts Rules 1981 because s 39 had retained the distinct offences of common assault and of battery, which therefore could not be charged together in the same information. The Crown Prosecution Service appealed against the dismissal of both informations.
Held – Common assault and battery were, and had been since the enactment of the Offences against the Person Act 1861, separate statutory offences which should be charged as being contrary to s 39 of the 1988 Act, since the 1861 Act had made statutory the previously existing common law offences of common assault and battery. Where there was actual as well as apprehended unlawful force the charge should be assault by beating rather than assault and battery since the latter form was duplicitous in that it alleged two different offences. Since the effect of s 39 was that all common assaults or batteries were triable summarily regardless of whether the information was laid by or on behalf of the victim the appeal in the first case would be allowed. However, since the information in the second case used the phrase ‘assault and batter’ it asserted two offences and was therefore duplicitous since ‘batter’ had to be taken as referring to the offence of battery. The appeal in the second case would therefore be dismissed.
4.6The only factor which distinguishes common assault from assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, is the degree of injury which results. Normally, aggravating factors which may be relevant to sentence and to mode of trial decisions are irrelevant when deciding whether the degree of injury justifies a charge under section 47.
4.7Where battery results in injury, a choice of charge is available. The Code for Crown Prosecutors recognises that there will be factors which may properly lead to a decision not to prefer or continue with the gravest possible charge. Thus, although any injury can be classified as actual bodily harm, the appropriate charge will be contrary to section 39 where injuries amount to no more than the following:
grazes;
scratches;
abrasions;
minor bruising;
swellings;
reddening of the skin;
superficial cuts;
a "black eye".
For an interesting discussion on theses charging standards, see, "The Metropolitan Police Assault -Charging Offences, Are they based on Law? John Woods 159 JPN 42; and the CPS reply, 159 JPN 148; plus also 159 JPN 203.
Counsel for the defence in this case tried to pinpoint what many would define as an assault; the more commonplace sort; but an assault can be committed in a variety of ways even if the victim was too frightened to escape, R v James (Anthony David) (1997) The Times, 2 Oct. In R v Ireland, supra, it was held a telephone call or series of Telephone calls, followed by silence could constitutes an assault occasioning Actual Bodily Harm. Contrast this with a case featured by The Times, October 24 1997 where a man who suffered from tinnitus determined to make his wife suffer the same, shouted in her ear. According to the report he succeeded, because she was said to have tinnitus at the court hearing.
Nor would seem, (according to the Lord Advocate's Reference No.2 of 1992) (1992) The Times, 23 Dec, is a joke a reliable defence to a charge of assault.
The Police Training Manual looks at a recent decision of the Divisional Court where it held that the words 'white man's arse licker' and 'brown Englishman' when used to accompany an assault on an Asian victim did not necessarily make the assault 'racially aggravated' and that the prosecution had not done enough to show that the assailants' behaviour fell under the definition set out in s. 28 of the 1998 Act DPP v Roshan Kumar Pal, unreported, 3 February 2000.
When the Victim prefers the charge.
Under certain circumstances the magistrates must issue a certificate of dismissal following the bringing of a charge of common assault (Offences Against the Person Act 1861, ss. 44 and 45). In order for a certificate of dismissal to be issued it must be shown that the party aggrieved (the victim) brought the charge or it was so preferred on the victim's behalf and the magistrates find:
• the offence not to have been proved or
• the assault to have been justified or
• the assault to be so trifling that it did not merit any punishment.
The certificate releases the defendant from all further proceedings, civil or criminal, arising from the same cause. Therefore, although such a certificate would absolve the defendant from further criminal or civil action in respect of the actus reus that amounted to the assault/battery), it would not protect him/her from further proceedings arising from some distinct but related matter (e.g. acts committed immediately before or after the assault/battery).
If the prosecution is not brought by or on behalf of the aggrieved party, the certificate will not be applicable.