UNIT 9 ASSAULT AND BATTERY

9.1 INTRODUCTION

The right to bodily integrity and autonomy is a fundamental right protected under common
law, the Zambian Constitution and the Universal Declaration of Human Rights. The
Constitution of Zambia, Bill of Rights provides for the protection of life, liberty and security of
the person which includes protection against inhuman or degrading treatment (Articles 11 –
15).

On the scale of non-fatal non-sexual offences against a person, assault and battery are the
most minor whilst wounding and causing grievous bodily harm with intent are the most
serious. The main distinction between an assault and a battery is that no contact is necessary
for an assault, whereas an offensive or harmful contact must occur for a battery.

9.2 DEFINITIONS

Section 4 of the Penal Code Act, Cap 87 of the Laws of Zambia provides for the following
definitions to non-fatal non-sexual offences against a person:
(i) Harm - means any bodily hurt, disease or disorder whether permanent or temporary.
(ii) Grevious harm - means any harm which endangers life or which amounts to a maim or
which seriously or permanently injures health or which is likely so to injure health, or
which extends to permanent disfigurement, or to any permanent or serious injury to
any external or internal organ, member or sense.
(iii) Maim - means the destruction or permanent disabling of any external or internal organ,
membrane or sense.
(iv) Offensive weapon - means any article made or adapted for use for causing or
threatening injury to the person, or intended by the person in question for such use,
and includes any knife, spear, arrow, stone, axe, axe handle, stick or similar article.

9.3 ASSAULT

Assault may be defined as the threat of immediate harm or any act that would arouse
reasonable apprehension of imminent harm. Therefore, assault involves the causing of
another to apprehend (expect) the possibility of imminent (immediate) application of unlawful
violence. Assault, as distinct from battery, can be committed by an act indicating an intention
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to use unlawful violence against the person of another – for example, an aimed punch that
fails to connect. In the case of R v Misalati [2017] EWCA 2226, the appellant spat towards the
complainant. The appeal court confirmed that although there was no actual violence, spitting
is an assault whether it makes contact with the victim or causes fear of immediate unlawful
physical contact.

Therefore, whilst every battery includes an assault, an assault does not necessarily require a
battery to complete it, i.e. it does not require physical contact.

(i) Actus Reus for Assault

An assault occurs where the defendant intentionally causes another to apprehend imminent
and unlawful force whether intentionally or recklessly and does not involve physical contact.
The elements of the Actus Reus are:
(a) Apprehension of force
(b) Imminent force
(c) Unlawful force

(a) Apprehension of Force

The actus reus is established by the causing of the apprehension of force even if the
defendant does not apply actual force on the victim. It also does not matter whether the actual
application of force was even possible, as long as the apprehension is caused. Therefore, any
apprehension of unlawful immediate force is an assault and does not need to be violent as
even an apprehension of being stroked or kissed can amount to an assault. This
apprehension of imminent and unlawful harm does not mean fear but the expectation of harm.

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, QBD

Fagan was sat in his car when he was approached by a police officer who told him to move
the vehicle. A policeman was directing the defendant to park his car. The defendant
accidentally drove onto the policeman's foot. The policeman shouted at him to get off at which
point Fagan swore at him. The defendant refused to move and turned the engine off. Fagan
was convicted of assaulting a police officer in the execution of his duty. Fagan appealed the
decision. The defendant argued at the time of the actus reus, the driving onto the foot, he
lacked the mens rea of any offence since it was purely accidental. When he formed the mens
rea, he lacked the actus reus as he did nothing.

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Held
The driving on to the foot and remaining there was part of a continuing act. Fagan’s crime was
not the refusal to move the car but that having driven on to the foot of the officer and decided
not to cease the act, he had established a continual act of battery. This meant that actus reus
and mens rea were present and as such, an assault was committed. Fagan’s conviction was
upheld.

However, just as words can cause an assault, the context and tone of such words can also
prevent a potential assault from occurring.

Tuberville v Savage [1669] EWHC KB J25

Having been infuriated by some comments directed towards him, the defendant placed his
hand on his sword as if to draw it. This would plainly cause the victim to fear the immediate
application of unlawful force and thus constitute an assault. However the defendant
accompanied his action with the words “if it were not assize time I would not take such
language.”

Held
No assault.

Therefore, there can be no assault where the victim does not apprehend (expect) immediate
force and as such there is no offence of attempted assault.

(1) Violence
Assault is committed by an act indicating an intention to use unlawful violence against the
person of another. The violence need not be actual violence and any touching will suffice.

R v Savage v Parmeter [1992] 1 AC 699

The defendant threw a pint of beer over the victim in a pub. The glass slipped out of her hand
and smashed and cut the victim's wrist. The victim was her husband's ex girlfriend and there
had been bad feeling between the two. The defendant maintained that it was never her
intention to throw the glass just to humiliate her by throwing the beer. She was convicted and
appealed.
Held
That it was not necessary to demonstrate the defendant had the mens rea in relation to level
of harm inflicted. It was sufficient that they intended or could foresee that some harm will
result.
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(2) Psychological Harm
Psychological harm which involves more than mere emotions such as fear, distress or panic
can amount to ABH. The court in the case of R v Chan-Fook [1993] EWCA Crim 1 held that
the phrase "actual bodily harm" can include psychiatric injury where this is proved by medical
evidence but it did not include emotions, such as fear or panic, nor states of mind that were
not themselves evidence of some identifiable clinical condition.

R v Ireland [1997] 2 Cr App Rep 492, CA

The Defendant in this case consistently called three separate women over the course of three
months. During each call he did not speak, but instead breathed heavily on the line. He was
prosecuted and convicted for assault occasioning actual bodily harm on the grounds of the
psychiatric injury suffered by the victims. The Defendant appealed his conviction and argued
that silence cannot amount to assault and further that psychiatric harm was not actual bodily
harm.

Held
That court held in the affirmative that silence causing psychiatric injury could constitute
assault occasioning ABH under s.47 OAPA 1861. Silence could act as a threat where it was
done in a way which could induce fear in the victim; where the victim is afraid that the threat
will be acted on in the near future, this could amount to an assault. That repeated phone calls
of this nature could be expected to cause a victim to apprehend immediate and unlawful
violence.

(3) Stroked or Kissed

It is an assault to kiss or stroke someone without their consent and it was said that “If any
man kissed a woman against her will it was an assault.”

Sheffield Evening Telegraph, 22 February 1888

The girl, named Bertha Bridges, was only fifteen years old. She worked in Williamson’s
confectionery shop and it was there that one night, while Miss Bridges remained late to fetch
his dinner, Williamson hemmed her into a corner and forcibly kissed her. After Williamson
stroked her face and kissed her, Miss Bridges demanded to know what Williamson meant by
such behavior. Williamson responded by assuring Miss Bridges that “he was single” and that

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his wife—when she had been alive—had been “a good wife to him.” Ralph Williamson was
charged and convicted with assault.

A-G’s (Ref No 1 of 2020) [2020] EWCA 1665), the defendant sat next to the complainant on a
busy train in Newcastle grabbed her and kissed her on the lips. He was charged with sexual
assault. He argued he had heard people mocking the complainant (who he did not know) and
he was trying to make her feel better. The Defendant said that he had not intended for the
kiss to be ‘sexual’.

(b) Imminent Force

The victim’s apprehension must be of imminent harm and not in the future. However, there is
not an exact definition of what ‘immediate’ or imminent has come to mean.

R v Constanza [1997] Crim LR 576

The defendant mounted a campaign of hate against an ex-work colleague. For a period of
almost two years, the man followed the women home from work, made numerous silent
phone calls, wrote her over 800 letters, drove past her house, visited her house without
consent, stole items from her washing line and wrote offensive words on her house’s door
three times. Following these actions, she received two additional letters with threatening
language. She was soon diagnosed by a doctor as suffering from clinical depression and
anxiety due to apprehended fear caused by the man’s actions and letters. He was convicted
of assault occasioning actual bodily harm (AOABH). He appealed contending that words
alone letters could not amount to an assault as there was no immediacy.

Held
That words alone can constitute an assault, without the presence of physical action, if they
cause the victim to apprehend a fear of immediate violence.
Therefore, what must be shown is that the victim apprehended an imminent attack and not
only that he was frightened or that he had an imminent fear of harm in the future.

Reference case: Smith v Superintendent of Woking Police Station (1983) 76 Cr App Rep 234

(c) Unlawful Force

This is an unwanted contact with a victim and as long as the defendant had no authority to
touch the victim, then the touching will be unlawful even if it is just a slight touch.

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(ii) Mens Rea for Assault

The mens rea is the defendant’s intention or recklessness as to the creation of apprehension
of imminent unlawful force. This means that the defendant foresaw by being reckless the
result of the victim apprehending imminent unlawful harm.

R v Venna [1975] 3 All ER 786, CA

The defendant with three others were causing a disturbance in the early hours of the morning
by singing shouting and bashing dust bin lids. The police were called and an officer tried to
reason with them and told them to go home quietly. The four continued in defiance. One of
them sat down and the officer went over to him and said you're all under arrest and pulled him
up. The other three tried to get the other from the grasp of the policeman. The officer called
for assistance and all three were taken forcibly to the police station. The defendant had fought
so violently, was kicking indiscriminately and deliberately brought his foot down on Police
Constable hand. The defendant contended that he had not heard that he had been arrested
and was hit on the chin and knocked to the ground and he kicked out in order to get to his
feet. He stated he did not know or suspect that an officer was close by.

Held
That “we see no reason in logic or in law why a person who recklessly applies physical force
to the person of another should be outside the criminal law of assault”.

Therefore, a person cannot accidentally assault another person, but it is enough to show that
an offender intended the actions which make up an assault. Moreover, intent to scare or
frighten a different person (other than the actual victim) can be enough to establish assault
charges, under the theory of transferred intent.

9.4 COMMON ASSAULT

The Penal Code Act section 247 provides that any person who unlawfully assaults another is
guilty of a misdemeanour and, if the assault is not committed in circumstances for which a
greater punishment is provided in this Code, is liable to imprisonment for one year.

Therefore, common assault could be broken down into:

(a) Technical or psychic assault which does not involve physical contact.
(b) Physical assault or battery.

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Technical or psychic assault is a common law offence which only requires that the
defendant’s act causes the victim to apprehend (expect) immediate application of unlawful
violence. For instance, raising a threatening fist at another and that other apprehending
immediate unlawful harm is an assault. This may also be said to include waving a knife, a gun
or other offensive weapon in a threatening manner.

R v Lamb [1967] 2 QB 981

Two boys were playing with a revolver. There were two bullets in the chamber but neither was
opposite the barrel. The 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.

9.5 ASSAULT OCCASIONING ACTUAL BODILY HARM (AOABH)

The Penal Code Act section 248 provides that “any person who commits an assault
occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for
five years”.

(i) Actus Reus of AOABH

The offence of AOABH arises where the defendant intentionally or recklessly commits an
assault or a battery which causes the victim to suffer actual bodily harm.
Elements of the AOABH Offence are that:
(i) There must be an assault or a battery.
(ii) The victim must suffer actual bodily harm (ABH).
(iii) The ABH must be occasioned by the common assault or battery.

(a) Occasioning
The word occasioning in criminal law has the same meaning as causing.

R v Roberts (1972) 56 Cr App R 95, CA

The Defendant made indecent proposals to a female passenger in his moving car. The
passenger was so frightened that she jumped out of the moving vehicle.
Held
The assault caused (occasioned) her to jump out of the car and suffer actual bodily harm.
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(b) Harm
The Penal Code Act section 4 defines harm as meaning any bodily hurt, disease or disorder
whether permanent or temporary. Burstow [1998] AC 147, HL

The defendant had a brief relationship with a woman. She ended the relationship and he
could not accept her decision and embarked on a campaign of harassment against her over a
period of 8 months. He made silent telephone calls, abusive telephone calls, he appeared at
her house, took photos of her, distributed offensive cards to her neighbours and hate mail. As
a result she suffered a severe depressive illness.

Held
That psychiatric injury did suffice to be considered ‘bodily harm. The word 'inflict' in s.20
simply means cause. There was thus no requirement that physical force is directly or
indirectly applied.

(c) Actual Bodily Harm (ABH)

Actual bodily harm is the level of harm greater than a mere touching hence must be
reasonably serious harm and not so trivial as to be wholly insignificant as the law does not
deal with trifles.

R v Chan-Fook [1994] 1 WLR 689

A French student was lodging at the house of Mrs Fox who was engaged to the appellant.
Mrs Fox's engagement ring went missing and the she accused the student of stealing it. The
appellant interrogated the student during which he struck him several times. He then locked
him in an upstairs room and threatened him with further violence if the ring was not returned.
The student attempted to escape by roping the curtains and sheets together and tying them
around the curtain pole. The curtain pole broke and the student fell to the ground and suffered
a fractured wrist and a dislocated hip. The appellant was charged with the offence of an
assault occasioning actual bodily harm under S.47 of the Offences Against the Person Act
1861. The prosecution based their case on the mental state of the victim (psychological
suffering) due to the fear and panic he suffered but no medical evidenced was produced to
support a finding of psychiatric injury.

Held
That to amount to actual bodily harm, the injury need not be permanent but should not be so
trivial as to be wholly insignificant. Feelings of fear and panic are emotions rather than an
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injury and without medical evidence to support recognised psychiatric condition a conviction
for ABH could not stand.

Therefore, actual bodily harm (ABH) may include bruising, grazes, causing tenderness of the
skin, temporal loss of consciousness, breaking of teeth or psychological injuries. This means
that an offence of AOABH will not be committed if there is no assault.

Reference cases: R v Smith [2006] EWHC 94 – Cutting of the Victim’s hair without his or her
consent.

(ii) Mens Rea of AOABH

The mens rea of the offence of AOABH is only that the defendant intended or was reckless
that the victim will suffer an assault or a battery.

9.6 ASSAULTS OCCASIONING GRIEVOUS BODILY HARM (AOGBH)

The Penal Code Act section 229 provides that “any person who unlawfully does grievous
harm to another is guilty of a felony and is liable to imprisonment for seven years”.

(i) Actus Reus of AOGBH

(a) Grievous Bodily Harm (GBH)

Grievous bodily harm means really serious bodily harm taking into consideration the totality of
the injuries inflicted on the victim.

Television Chibuye v The People (1978) Z.R. 43

The appellant head butted the complainant resulting in her losing two teeth. He was convicted
by the subordinate court of the second class for the Serenje District of doing grievous harm
and was sentenced to two and half years imprisonment with hard labour. The appellant
appealed to the high court for redress.
The issue to be decided was whether losing teeth satisfies the definition of grievous harm
according to section 4 of the Penal Code.

Held
That the loss of two teeth did not constitute ”permanent disfigurement” as such: cosmetically
the teeth could be replaced; that is why it was doubtful that such a loss constituted
”permanent or serious injury to any external or internal organ member or sense” as specified
in s. 4 of the Penal Code. Furthermore, once the teeth have fallen out, no permanent injury

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remains as envisaged in section 4 of the Penal Code. In any event, the legislature never
intended such a strained interpretation to be given to the term “grievous harm”.

Therefore, GBH means that there has to be a serious identifiable clinical condition which
according to the Penal Code must be either a wound or infliction of GBH.

Reference cases: R v Chan-Fook [1994] 1 WLR 689; Wood (1830) 1 Mood CC 278

(b) Infliction of GBH

To inflict is to bring about or to cause an unpleasant consequence on the victim.

R v Dica [2004] 3 ALL ER 593, CA

The defendant was diagnosed as being HIV positive. He thereafter had consensual
unprotected sexual intercourse with two women. With the first woman he insisted that the
intercourse was without protection having told her he had had a vasectomy. With the second
he had used protection initially but later in the relationship had unprotected sex. The
defendant claimed that both women were aware of his condition and had consented to
unprotected intercourse with full knowledge of the risk. The women disputed this.

Held
That those who, knowing that they are suffering HIV or some other serious sexual disease,
recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm
on a person from whom the risk is concealed and who is not consenting to it will be liable. If
however, the victim does in fact consent to the risk, this will provide a defence under s.20.

(ii) Mens Rea of AOGBH

Mens rea of AOGBH is the defendant’s intention or recklessness to foresee that he may
cause some kind of harm.

Reference cases: R v Savage; R v Parmenter [1992] 1 AC 699, HL; Rushmore (1992) 95

Crim App R 252, CA; DPP v A [2001] Crim LR 140, DC

9.7 CONSENT TO ASSAULT OR BATTERY

Common assault or battery cannot be committed if there is a valid consent by a person who is
mentally capable although a victim cannot lawfully consent to his own death at the hands of
another.
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R v Cuddy (1843) 1 Car & Kir 210 – Right to a fair fight. (fight sports)

Held
That where two persons go out to fight a deliberate duel, and death ensues, all persons who
are present, encouraging and promoting that death, will be guilty of murder. And the person
who acted as the second of the deceased person in such a duel may be convicted of murder,
on an indictment charging him with being present, aiding and abetting the person by whose
act the death of his principal was occasioned.

Therefore, a medical doctor would have committed an offence against the person where he
performs the treatment on a patient who has refused to consent to medical treatment even
though the refusal might lead to the patient’s death.

St George’s Healthcare NHS Trust v S [1999] Fam 26, CA

S was 36 weeks pregnant when diagnosed with severe pre-eclampsia, a life-threatening

condition of pregnancy characterized by high blood pressure and with moderate depression.
She was advised that her health and her life, and that of her baby, were in real danger and
that she needed to be admitted immediately to hospital for an induced delivery. S fully
understood the potential risks but rejected the advice on the grounds that she wanted her
baby to be born naturally. On the application of C, a social worker, S was admitted to a mental
hospital against her will for assessment under section 2 of the Act as it was feared that her
mental state was compromising her ability to make decisions. S was immediately transferred
again against her will to St. George’s Hospital, which then applied ex parte for a declaration
dispensing with her consent to treatment. Inadvertently misled into thinking that S had been in
labor for 24 hours, a High Court judge granted the declaration, and S’s baby was born by
Cesarean section. S returned to the mental hospital, discharging herself two days later. S
appealed against the High Court order and sought judicial review of C’s decision to admit and
detain her under the Act.

Held
That S had the right to refuse medical treatment even if it would endanger her life and that of
foetus. An adult of sound mind is entitled to refuse medical treatment because each individual
has the right to autonomy and self-determination. That while pregnancy increases the
personal responsibilities of a woman, it does not diminish her entitlement to decide whether or
not to undergo medical treatment nor is her right reduced or diminished merely because her

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decision to exercise it may appear morally repugnant. An unborn child, although human and
protected by the law in a number of different ways, is not a separate person from its mother.
Its need for medical assistance does not prevail over the mother's rights and she is entitled
not to be forced to submit to an invasion of her body against her will. That the removal of S’s
baby from within her body under physical compulsion constituted an infringement of her
autonomy which was not justified by the perceived needs of the fetus. The Cesarean section
performed on her, and accompanying medical procedures, also amounted to trespass. In the
circumstances, S’s detention, treatment and transfer were unlawful.

(i) Validity of Consent to Actual Bodily Harm

The general rule and a matter of public policy is that a person’s consent is irrelevant and
cannot prevent criminal liability for an offence, if assault occasioning actual bodily harm
(OABH) was intended and/or caused where OABH means an injury which is not trivial.

A-G Ref No. 6 of 1980 [1981] QB 715

Two people engaged in a fist fight in a street. The younger of the two sustained a bleeding
nose and bruises and the elder was charged with assault. The trial judge directed the jury that
an agreement to fight was sufficient basis to find an acquittal provided the defendant used
reasonable force. The defendant was acquitted whereupon pursuant to s.36 of the Criminal
Justice Act 1972, the case was referred to the Court of Appeal on the question "Where two
persons fight (otherwise than in the course of sport) in a public place, can it be a defence for
one of those persons to a charge of assault arising out of the fight that the other consented to
fight?"

Held
The answer is "no" as wherever the assault occurred, the combatants would have been guilty
of assault if they intended to and/or did cause actual bodily harm.
Lord Lane C.J., Phillips and Drake J.J. stated at 1059 "The answer to this question,· in our
judgement, is that it is not in the public interest that people should try to cause or should
cause each other actual bodily harm for no good reason. Minor struggles are another matter.
So, in our judgement, it is immaterial whether the act occurs in private or in public; it is an
assault if actual bodily harm is intended and/or caused. This means that most fights will be
unlawful regardless of consent. Nothing which we have said is intended to cast doubt on the
accepted legality of properly conducted games and sports, lawful chastisement or correction,
reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can

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be justified as involving the exercise of a legal right, in the case of chastisement or correction,
or as needed in the public interest, in the other cases."

Therefore, where two people willingly engage in a fist fight, their consent to being harmed (at
a level greater than assault and battery) by their opponent will not be recognised in law.

R v Coney (1882) 8 QBD 534, CCR

The defendants were engaged in prize fighting. The indictment charged a person, named
Munro, with the wiltul murder of David and the defendant and two others, Gulliver and Grant,
were charged with being present, aiding and abetting Munro in the act. The death of the
deceased was shown to have occurred in a duel. Munro was one of the principals and the
defendant was said to have acted as the second of the deceased.

Held
That the question is, whether the defendant was at the spot at the time, and whether he took
such a part as amounts, in the language of this indictment, to an aiding and abetting of the
principal offender. I am bound to tell you, as a matter about which my learned brother and
myself have no doubt that, where two persons go out to fight a deliberate duel, and death
ensues, all persons who are present on the occasion, encouraging or promoting that death,
will be guilty of abetting the principal offender. “Therefore the consent of the parties to the
blows which they mutually receive does not prevent those blows from being assaults." Per
Stephens J.

(ii) No Consent to Being Harmed for Sexual Pleasure (‘rough sex defence’)
Rough sex, including sadomasochistic sexual activity (getting sexual pleasure from sadism),
can involve the infliction of pain or violence, simulated or otherwise, with the aim of providing
sexual gratification for the parties involved. This type of activity (BDSM – bondage, discipline,
submission and sadomasochism) can encompass a wide range of behaviours such as being
assaulted, choked, slapped, gagged or spat on and, although it may occur in private and be
consensual, the law states that the infliction of serious harm which results in actual bodily
harm (ABH) or other more serious injury or death, will make a perpetrator liable to prosecution
whether consent had been given by the victim or not.

R v Brown [1993] 2 All ER 75 HL

The five appellants were convicted on various counts of ABH and wounding. The injuries were
inflicted during consensual homosexual sadomasochist activities. The trial judge ruled that the
consent of the victim conferred no defence and the appellants appealed.
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Held
That "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived
from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified
question in the negative and dismiss the appeals of the appellants against conviction." Per
Lord Templeman.

However, in a dissenting view, Lord Mustill said that "The issue before the House is not
whether the appellants' conduct is morally right…….. What I do say is that these are
questions of private morality; that the standards by which they fall to be judged are not those
of the criminal law; and that if these standards are to be upheld the individual must enforce
them upon himself according to his own moral standards, or have them enforced against him
by moral pressures exerted by whatever religious or other community to whose ethical ideals
he responds.”

Regina v Emmett: CACD 18 Jun 1999

The defendant was involved in sexual activity which he said was not intended to cause harm
and were said to be consensual but clearly did risk harm. On the first occasion he tied a
plastic bag over the head of his partner. On the second, he poured lighter fluid over the victim
and set it alight.

Held
That these were not acts to which she could give lawful consent. “Where the evidence looked
at objectively reveals a realistic risk of a more than transient or trivial injury, it is plain, in our
judgment, that the activities engaged in by this appellant and his partner went well beyond
that line where consent becomes immaterial.”

9.8 EXCEPTIONS WHERE CONSENT TO ABH IS A VALID DEFENCE

There are exceptional cases where a person may validly consent to ABH being inflicted on
them as follows:

(i) Public interest

The participation in contact sports such as football, rugby, cricket or boxing has implicitly and
validly consented to the risk of accidental ABH.

R v Barnes [2005] 2 All ER 113, CA

The appellant was an amateur footballer. He was playing a football match, went in for a tackle
and seriously injured his opponent’s leg. He was charged with inflicting grievous bodily harm
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under section 20 of the Offences Against the Person Act 1861. The issue which arose was to
establish when it is appropriate for criminal proceedings to be brought after an injury occurs in
the course of sport, by one to another?

Held
That participation in a sport such as football gives rise to implicit consent to a risk of injury and
even grievous bodily harm. If an injury or act occurs that cannot reasonably be considered to
be acceptable when playing sport, then there is no implicit consent and the conduct will not be
covered by a defence.
In the present circumstances, the judge held that the actions of the appellant could not
reasonably be considered to have gone beyond what is acceptable in sport and did not
require criminal intervene. The court found that as most sports have their own disciplinary
procedures and rules, such conduct is usually dealt with appropriately within the sporting
context. The court need only intervene when the conduct that has occurred is extreme or
seriously grave and can be properly categorised as criminal.
Therefore, the appeal was allowed and the conviction quashed.

However, the players in these contact sports do not consent to the risk of harm which cannot
be reasonably expected such as consent to being deliberately punched, kicked or even bitten.

R v Billinghurst [1978] Crim LR 553

A rugby player punched another player during a match in an unprovoked attack. Whilst the
defendant argued that punching was common place during rugby matches.

Held
That it was outside the rules of the game to punch an opponent and thus the victim could not
be said to have consented to being punched.

(ii) Reasonable Surgical Interference

This is the surgical interference performed for therapeutic reasons. However, a medical doctor
who treats a patient without consent may incur criminal liability. Therefore, lawful surgery
must be both consensual and reasonable without the medical exception as it involves
intentional wounding as defined under sections 4 and 224 of the Penal Code Act.
Ref: (a) Ian Paterson’s harmful surgery mutilating many patients over more than a
decade claiming breast cancer treatment.
(b) Simon Bramhall branded his initials on patient’s livers during transplant surgery.

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(iii) Cosmetic Enhancements of Tattooing, Branding and Body-Piercing
Body art is a form of human expression that has existed in various cultures of the world for
thousands of years. These include tattooing and the common piercings associated with the
face (ear, nose, mouth, eyebrow), nipple and navel. Other forms of piercing include genital
piercing in both male and female, scarification which is the cutting of skin to encourage
formation of scar tissue, tongue splitting, branding, clitordectomy and labia removal and male
circumcision

R v Wilson [1996] Crim LR 573, CA

The appellant branded his initials on his wife’s buttocks with a hot knife. She had asked him to
do so. Her skin became infected and she sought medical treatment from her doctor. The
doctor reported the matter to the police and the husband was charged with ABH under s.47
Offences Against the Person Act 1861.

Held
The wife’s consent was valid. The branding was more akin to tattooing and cosmetic
enhancement rather than infliction of pain for sexual gratification. The court further held that
consensual activity between husband and wife in the privacy of the matrimonial home was not
a matter for the courts.

(iv) Rough and Undisciplined Horseplay

Harm by rough and horseplay which is not intended to cause injury prevents the conduct from
being unlawful as the participant has given implied consent to run the risk.

R v Jones [1987] Crim LR 123, CA

The appellants were schoolboys. They were convicted of inflicting GBH on two fellow school
mates having thrown them into the air with the intention of catching them. Unfortunately they
had dropped them resulting in serious injury including a ruptured spleen. Evidence was
produced that the boys had engaged in the activity before without injury and that it was taken
by all as a joke with no intention to cause injury. The trial judge would not allow the defence of
consent to go to the jury.
Held
That consent to rough and undisciplined horseplay is a defence and even if there was no
actual consent, if the appellants had a genuine belief in consent they should be allowed the
defence. There was no requirement that the belief be reasonably held, provided it was
genuine. Appeal allowed. The convictions were quashed.
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(v) Consent to Intimate Acts with Risk of HIV Infection
A person can give valid consent to run the risk of infection where they are aware of the risk.

R v Konzani [2005] 2 Cr App Rep 198, CA

Feston Konzani was HIV positive and aware of his condition. He had unprotected sexual
intercourse with three complainants without informing them of his condition. Consequently,
the three complainants contracted HIV. Konzani was charged with three counts of inflicting
grievous bodily harm contrary to the Offences Against the Person Act 1861. The question was
whether there was a reasonable or genuine belief by Konzani that the complainants were
aware of his HIV positive status and thus, consented to the risk of contracting HIV through
unprotected sexual intercourse.

Held
That Konzani had the honest belief that the complainants had consented to unprotected
sexual intercourse, knowing that they were exposing themselves specifically to the risk of
contracting HIV. However, Konzani had knowingly concealed the fact that he had HIV from his
sexual partners who could not have given proper consent as they were not honestly informed.

(vi) Religious Flagellation

This is the act or practice of causing harm to oneself by way of whipping of self or by
someone else including self-crucification. The law recognises this activity as having some
value to society.

(vii) Implied Consent

A person impliedly consents to the risk of accidental bodily contact in ordinary activities of
daily life such as on queues, on public transport, handshakes, and so on. Some touching is
necessary and part of everyday life and therefore will not be considered as unlawful.

Cole v Turner (1704) 6 Mod Rep 149

The claimants were husband and wife who claimed they had been battered by the defendant.
The issue was whether jostling the claimants to get past them in a narrow street constituted
battery.

Held
That “the least touching of another in anger is a battery. If two or more meet in a narrow
passage, and without any violence or design of harm, the one touches the other gently, it is
no battery. If any of them use violence against the other, to force his way in a rude inordinate
17
manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a
battery”. For a touching of another’s person to amount to a battery, it had to be a touching ‘in
anger’. Per Holt CJ

Also, touching a person on the arm or shoulder with a view of engaging his attention is
acceptable as long as there is no greater degree than reasonably necessary.

Collins v Wilcock [1984] 3 All ER 374

A police officer wished to question a woman in relation to her alleged activity as a prostitute.
The woman decided to walk away, but the police officer was intent on stopping her and in
order to do so, grabbed her arm in order to prevent her from walking away. Under the Street
Offences Act 1959 c.57, the police officer had no power to detain the woman. The woman
struggled with the police officer and scratched him. She was charged with assaulting a police
officer in the course of his duty.
The issue was whether the conviction for assaulting a police officer was lawful given the lack
of legal authority on the part of the police office to restrain the woman.

Held
That the police officer was acting outside the scope of his powers as he had no power to
arrest the woman in that situation and therefore, was acting outside of the scope of his duties
as a police officer. There was no question therefore of assaulting a police officer in the course
of his duty. It was held further that the grabbing on the part of the police officer, without the
power to make an arrest, amounted to an unlawful assault (a battery). The woman had been
entitled to resist as an action of self-defence. Her conviction was therefore quashed. The
court took the opportunity to clarify the meaning of battery as a touching of another with
hostile intent or in other words any intentional touching outside of the scope of what normally
acceptable.

However, what is reasonably necessary physical contact is based on the objective or

reasonable-man test and depends on the circumstances of each individual case.

Mepstead v DPP (1995) 160 JP 475, DC

A police officer had taken hold of the defendant to calm him without arresting him. The
defendant then struck the police officer.

Held

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That a police officer who took hold of a man's arm in such a situation not intending to detain or
arrest him but in order to draw his attention to what was being said could be seen as acting in
the execution of his duty. It was for the tribunal of fact to decide whether physical contact went
beyond what was acceptable by the ordinary standards of everyday life. That the touching
should, however, be for no longer than was necessary to attract attention.

Lord Lane CJ defined unlawful physical force Faulkner v Talbot [1981] 3 All ER 468
as "any intentional [or reckless] touching of another person without the consent of that person
and without lawful excuse. It need not necessarily be hostile, rude, or aggressive.”

9.9 OTHER ASSAULT CRIMES

(i) Assault with Intent to Steal

The Penal Code Act section 293 provides that any person who assaults any person with
intent to steal anything is guilty of a felony and is liable on conviction to imprisonment for
seven years.

The People v Kawanda & another [2017] ZMHC

The Accused persons stood charged with the offence of aggravated robbery contrary to
section 294 of the Penal Code Chapter 87 of the Laws of Zambia. Boyd Kawanda and
Munengo Siamachila on 26th February, 2016 at Lusaka jointly and whilst acting together with
other persons unknown grabbed the victim and stole one pair of shoes, a Samsung phone
and K470.00 cash. At or immediately before or immediately after the time of such stealing the
accused did use or threatened to stab and use actual violence on the victim by being bitten on
a finger.

Held
That the accused persons were guilty of the offence of robbery and were convict accordingly.

Reference case: The People v Samukonga [2016] ZMHC 227

(ii) Aggravated Assault with Intent to Steal

The Penal Code Act section 295 provides that any person who, being armed with any
offensive weapon or instrument, or being together with one person or more, assaults any
person with intent to steal anything, is guilty of a felony and is liable on conviction to
imprisonment for a period (notwithstanding subsection (2) of section twenty-six) of not less
than ten years and not exceeding twenty years.

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(iii) Assault with Intent to Resist Arrest
The Penal Code Act section 250 (b) provides that any person who assaults, resists or wilfully
obstructs any police officer in the due execution of his duty is guilty of a misdemeanour and is
liable to imprisonment for five years.

9.10 BATTERY

Battery is the intentional offensive or harmful touching of another person without their
consent. Therefore, a battery is the intentional act of making contact with another person in a
harmful or offensive manner. A battery will arise even where the defendant touches the
clothes of the victim who need not feel the touching.

R v Thomas (1985) 81 Cr App R 331, CA

The defendant, a school caretaker, was convicted of indecent assault of several minors. One
of the convictions was for taking hold of and rubbing the hem of a 12-year-old’s skirt before
she pushed him away. Appealing his conviction, the appellant argued that what he did was
merely assault, not indecent assault.

Held
That clothes a person is wearing are regarded as so intimately connected with the person that
to touch the clothes is regarded as touching the person. The touching of the hem of a girl’s
skirt was merely assault, not indecent assault.
Ackner LJ clarified that touching a person’s clothes while they are wearing them is equivalent
to touching the person for the purposes of criminal offences which require touching.

(i) Actus Reus for a Battery

For an offence of battery to arise, the following requires to be fulfilled:
(a) Intentional touching;
(b) The touching must be harmful or offensive;
(c) Without the consent from the victim.

Therefore, a battery is based on the non-consensual or unlawful physical contact applied

directly by the defendant on the victim or indirectly by use of an object.

R v Haystead [2000] Crim LR 758

The defendant had punched a woman twice in the face while she was holding her child in her
arms. The force was sufficient to cause her to drop the child from the women’s arms and hit

20
his head on the floor causing injury to the child. The man was convicted of an offence of
assault by beating of the child. He appealed against a conviction for beating the child.

Held
That a battery could be inflicted even though the force actually used was used only indirectly.
There was no difference in principle between the use of a weapon to hit the child causing the
injury through the mother. The only difference here was as to the presence of recklessness
rather than intent. The appeal fails.

Reference case: Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

A battery will also arise where the defendant spits on the victim or pours alcohol or any liquid
on the victim.

DPP v K (a minor) [1990] 1 WLR 1067

A 15 year old school boy took some acid from a science lesson. However, when he was in the
boys' toilets and heard somebody coming, he panicked and poured it in the hot air hand dryer
intending to clean it later. Another pupil came into the toilet and used the hand drier. The
nozzle was pointing upwards and acid was squirted into his face causing permanent scars.
The defendant was charged assault under s.47 OAPA 1867.
The issue was whether lack of intention to harm, could amount to assault.

Held
That there can be a battery even if the application of force is not directly applied and even if
there is a delay between the defendant’s actions and force being applied to the victim.

(ii) Mens Rea for a Battery

For there to be a battery, the defendant must intentionally or recklessly touch the victim. The
test for recklessness is the Cunningham Recklessness as established in the case of R
v Cunningham [1957] 2 QB 396, a subjective test that “the accused has foreseen that the
particular kind of harm might be done and yet has gone on to take the risk of it”.

(a) Intent Requirement

A person need only have an intention to make or cause contact with another by either acting
recklessly or negligently.
(b) Reckless or negligent touching
The criminal act required for battery boils down to an offensive or harmful contact. This can
range anywhere from the obvious battery where a physical attack such as a punch or kick is
21
involved, to even minimal contact in some cases. Generally, a victim does not need to be
injured or harmed for a battery to have occurred, so long as an offensive contact is involved.

9.11 WOUNDING

The Penal Code Act section 4 defines a "wound" as meaning “any incision or puncture which
divides or pierces any exterior membrane of the body”.
An exterior membrane is that which can be touched without dividing or piercing any other
membrane of the body.

(i) Wounding with Intent

Wounding with intent means that the defendant intended to unlawfully wound or cause
Grievous Bodily Harm to any person or causing the same effect when the defendant intends
to resist or prevent a lawful arrest.

The Penal Code Act section 224 provides that “any person who, with intent to maim, disfigure
or disable any person, or to do some grievous harm to any person, or to resist or prevent the
lawful arrest or detention of any person is liable if he does the following acts-
(a) Unlawfully wounds or does any grievous harm to any person by any means
whatever; or
(b) Unlawfully attempts in any manner to strike any person with any kind of projectile
or with a spear, sword, knife, or other dangerous or offensive weapon; or
(c) Unlawfully causes any explosive substance to explode; or
(d) Sends or delivers any explosive substance or other dangerous or noxious thing to
any person; or
(e) Causes any such substance or thing to be taken or received by any person; or
(f) Puts any corrosive fluid or any destructive or explosive substance in any place; or
(g) Unlawfully casts or throws any such fluid or substance at or upon any person, or
otherwise applies any such fluid or substance to the person of any person.

This is an indictable offence only to be dealt with by the High Court and the defendant on
conviction liable to imprisonment for life.

The prosecution must prove that:

 The defendant used force against another person,
 That the force used was unlawful, and
 That the defendant intentionally caused grievous bodily harm
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Grievous bodily harm is really serious harm depicted by deep cuts, stab wounds or broken
bones requiring medical treatment.

In Mulowa v People (S.C.Z. Judgment 12 of 1979) [1979] ZMSC 10, the appellant accused
the victim of having bewitched his dog. He then rushed towards the victim's house with a
muzzle-loading gun and shot him and wounded him severely. He was charged for attempted
murder to which he pleaded not guilty but later the charge was amended to wounding with
intent to cause grievous harm and he pleaded guilty. He was then convicted and sentenced to
four years.

Actions Which Might Constitute Wounding With Intent

1. Stabbing someone multiple times
2. Repeated or Planned attack on the victim
3. Deliberate selection of a weapon
4. Prior threats on the victim

(ii) Unlawful or Malicious Wounding

The Penal Code Act section 232 provides that any person who unlawfully wounds another is
guilty of a felony and is liable to imprisonment for three years.

Malicious wounding occurs where the defendant unlawfully either:

(a) Wounds the victim
(b) Inflicts grievous bodily harm to the victim.

The mens rea for malicious wounding is that the defendant foresaw that the victim might
suffer harm. (Note that the defendant need not have intended that the victim will suffer GBH.)

(a) Unlawfully
The term unlawful in the Act means that the defendant acted without lawful justification.

(b) Wounds
The term wounds in the Act means a significant break in the continuity of the whole of the skin
and not a break that is trivial..

C v Eisenhower [1984] QB 331, DC

The defendant, a minor, shot multiple rounds from an air gun at a group of people, of which
one air gun pellet hit the victim, also a minor, in the face and which ruptured internal blood

23
vessels near the victim’s eye, causing bruising and swelling. Did the defendant’s actions
amount to a wounding under s. 18 of the Offences Against the Person Act.

Held
That the defendant was not guilty of wounding as in determining that a charge under s. 18
required that there be a break in ‘the continuity of the skin’, that is the whole skin and not
merely a scratch to the outer layer of the skin. That “it is not enough that there has been a
rupturing of a blood vessel or vessels internally for there to be a wound under the statute
because it is impossible for a court to conclude from that evidence alone that there has been
a break in the continuity of the whole skin”, per Goff LJ.

Therefore, the breaking of just the outer skin is insufficient to be classed as a wound, eg a
scratch.

9.12 DEFENCES TO ASSAULT AND BATTERY

(i) Self-Defense
In order to establish self-defense, an accused must generally show that:
(a) There was a threat of unlawful force or harm against them.
(b) There was a real, honest perceived fear of harm to themselves.
(c) There was no harm or provocation on the defendant’s part.
(d) There was no reasonable chance of retreating or escaping the situation.

(ii) Defense of Person or Property

A defendant in an assault/battery case may be able to claim that they acted only in defense of
their property against being invaded or illegally withheld.

The Penal Code Act section 17 provides that it shall be a defence for the defendant to claim
that he used reasonable force under the circumstances in repelling an unlawful attack upon
his person or property or other person or property of that other person.

(a) Reasonable force

A person is not expected to make fine judgments over the level of force to use in the heat of
the moment so long as he only does what he honestly and instinctively believes is necessary
in the heat of the moment. This is still the case if a person uses something to hand as a
weapon. As a general rule, the more extreme the circumstances and the fear felt, the more
force one can lawfully use in self-defence.

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(b) Disproportionate force
Where a person is defending himself or others from intruders in their home, it might still be
reasonable in the circumstances for one to use a degree of force that is subsequently
considered to be disproportionate where he perhaps is acting in extreme circumstances in the
heat of the moment and does not have a chance to think about exactly how much force would
be necessary to repel the intruder. The law will give the defendant a benefit of the doubt in
these circumstances. This only applies if you were acting in self-defence or to protect others
in your home and the force you used was disproportionate.

(iii) Consent
Where a claimant has consented to the assault or battery inflicted on him, his action for
battery or assault cannot succeed. This is encapsulated in the maxim “violenti non fit injuria“.

Simms v Leigh Rugby Football Club (1969) 2 All ER 923 - rugby tackle during the game.

(iv) Lawful Authority

A police officer person who is purported to have committed a battery or assault under lawful
authority cannot be held liable as long as the use of such force was necessary in carrying out
their duty.
Therefore, the Penal Code Act section 18 authorises a police officer to use reasonable force
to arrest a person who forcibly resists such arrest or attempts to evade being arrested.

Collins v Wilcock [1984] 3 All ER 374

A policewoman gripped the claimant’s arm to stop her from 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
That the police woman's actions amounted to a battery as it was beyond reasonable force to
be used in such situations and thus, beyond the scope of her powers.

(v) Necessity
Where it is necessary to prevent harm then trespass to persons can be allowed.

F v West Berkshire Health Authority (1990) 2 AC 1

F was a 36 year old woman who due to her mental condition had the capacity of a small child.
She formed a sexual relationship with a male patient which if leading to pregnancy, would be

25
disastrous to her mental health. Her mother sought a declaration from the court to the effect
that it would be lawful to sterilize her daughter even though she is unable to consent to the
operation due to her mental age. She was thus sterilized, with the consent of her mother.

Held
That the sterilization was lawful as it was of necessity and in the best interests of the
daughter. That it is not necessary for a doctor to seek a declaration of legality before carrying
out a sterilization in similar circumstances, but that a doctor should in practice seek such a
declaration.

(vi) Parental Authority

A parent would not be held liable for battery or assault for inflicting punishment on their child
provided that the force used is reasonable and proportionate to the wrong committed by the
child. The Child must also understand the reason for his punishment.

The Children’s Code Act, 2022 defines “corporal punishment” as that punishment in which
physical force is used on a child and therefore, section 22 prohibits a person from imposing
corporal punishment on a child.

9.13 POISONING

The Penal Code Act section 231 provides that “any person who unlawfully and with intent to
injure or annoy another, causes any poison or noxious thing to be administered to, or taken
by, any person, and thereby endangers his life, or does him some grievous harm, is guilty of a
felony and is liable to imprisonment for fourteen years. Further, section 232 provides that any
person who unlawfully and with intent to injure or annoy any person, causes any poison or
other noxious thing to be administered to, or taken by, any person is guilty of a felony and is
liable to imprisonment for three years.

Both sections 231 and 232 have the same basic elements but different aggravating features
as the former looks at the effect (outcome) of the poisoning which must be foreseen, that is,
“endangers the life or does the victim GBH whilst the later looks at the intent to injure or
annoy the victim.

(i) Actus Reus for the Offence of Poisoning

The actus reus of the offence of poisoning is that the defendant recklessly administered to or
caused to be administered to or taken by the victim a poison, noxious substance or

26
destructive thing which endangered the life of the victim or inflicted grievous bodily harm
(GBH) on the victim.
The Penal Code Act section 231 provides that any person who unlawfully, and with intent to
injure or annoy another, causes any poison or noxious thing to be administered to, or taken
by, any person, and thereby endangers his life, or does him some grievous harm, is guilty of a
felony. The defendant on conviction is liable to imprisonment for up to fourteen years.

Further, section 232 of the Act provides that the defendant is guilty of the offence of poisoning
even if the victim’s life is not endangered as long as the defendant intended to or was
reckless to the outcome.

The defendant on conviction on of a felony and is liable to imprisonment for up to three years.

(ii) Mens Rea for the Offence of Poisoning

Section 231 provides for the mens rea as the defendant’s intentional or recklessness to injure
or annoy another person or to endanger life or cause grievous harm whilst section 232
provides for the defendant’s mens rea of intention for unlawfully wounding.

9.14 POISON OR NOXIOUS SUBSTANCE

The Penal Code Act does not define a poison or noxious substance but are defined at
common law as substances which are hurtful, unwholesome or objectionable such as which
are:
(a) In their nature poisoning and noxious no matter the quantity used such as cyanide,
arsenic, heroin and so on.
Marcus [1981] 2 All ER 833, CA; Cramp (1880) 5 QBD 307; Cato [1976] 1 All ER 260
(b) In their nature not harmful unless administered in larger quantities.
Marlow (1964) 49 Cr App R 49, CA

(i) Maliciously
Common law interprets maliciously as meaning recklessness as the defendant foresaw that
his act will cause the poison to be administered or be taken by any person.

(ii) Administered to or taken by any person

This is the defendant’s act of administering a poison or causing the victim to take the poison
unaided.

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R. v. Kennedy [2007] UKHL 38
The appellant lived in a hostel in which Marco Bosque and Andrew Cody, who shared a room,
also lived. On 10 September 1996 the appellant visited the room which Bosque and Cody
shared. Bosque was drinking with Cody. According to Cody, Bosque told the appellant that he
wanted "a bit to make him sleep" and the appellant told Bosque to take care that he did not go
to sleep permanently. The appellant prepared a dose of heroin for the deceased and gave
him a syringe ready for injection. The deceased then injected himself and returned the empty
syringe to the appellant, who left the room. Bosque then appeared to stop breathing. An
ambulance was called and he was taken to hospital, where he was pronounced dead. The
cause of death was inhalation of gastric contents while acutely intoxicated by opiates and
alcohol.
The appellant was convicted of manslaughter and of supplying a class A drug (heroin).

Held
That the appellant supplied the drug to the deceased, who then had a choice, knowing the
facts, whether to inject himself or not. The heroin was self-administered and not jointly
administered. The appellant did not administer the drug not did he cause the drug to be
administered to or taken by the deceased. The appellant's conviction for manslaughter
quashed.

However, the administering of a poison does not need that it enters the victim’s body but may
also be by contact with the victim’s body.

R v Gillard (1988) 87 Cr App R 189, CA

The defendant sprayed CS gas in doorman's face.

Held
The defendant was guilty of an offence of administering a poison where he sprayed it directly
in the victim’s face. Administration is the 'bringing the noxious thing into contact with his body'
which can be direct/indirect and there is no need for ingestion.

(iii) With intent to injure or annoy any person

The words injure or annoy are not defined by the Act and should therefore be given their
natural meaning.
R v Hill (1986) 83 CAR 386, HL

(iv) Endangers life or does some grievous harm

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