The Criminal Justice Act 1988, s.39 provides that assault is a summary offence with a maximum sentence on conviction of six months' imprisonment or a fine.

• The other offences of David being involved in a clash of heads, and David challenging Martin will be dealt with later in ‘the defence of consent’ in properly conducted games and sports.

BATTERY: The difference between assault and battery is as follows;

• an assault is committed where the victim believes that he is likely to be subjected to some sort of harm (in the case of Sanjay this does not suffice as he was unaware that he was going to get punched)
• a battery does not take place until the force is applied.

The actus reus of battery consists of unlawful physical force on another, as confirmed by Ireland 1997.  Lord Justice Goff affirmed in the case of Collins v Wilcock 1984 (whereby a policewoman had inflicted a battery when she took hold of the arm of the defendant she believed to be soliciting in order to detain her but without the intention to effect an arrest), that ‘The fundamental principle, plain and incontestable is that every person’s body is inviolate’.  He went on to quote with approval, the statement in Cole v Turner 1704, that ‘the least touching of another in anger is a battery’.  From these quotes it can be seen that the degree of physical force need not be high.

The mens rea of battery is satisfied where the defendant intends to do such an act or is reckless about whether such force will be applied.  A battery may start off as innocent, accidental act but may later become a battery during a sequence of events among which the mens rea of the offence is formed.  This was the position in the case of Fagan v Metropolitan Police Comissioner (where force was applied by running over the policeman’s foot in a car).  The defendant had also argued that he did not have the necessary mens rea for the offence.  The Divisional Court held that ‘there was an act constituting a battery which at its inception was not criminal because there was no element of intention, but became criminal from the moment the intention was formed’.  The conviction therefore was upheld.  

This can be related to David’s case whereby he punched Sanjay, it could be said that David was in a dazed condition and as a result believed the referee is about to attack him therefore punched him.  However even so he had the correct actus reus and men reus to commit a battery on Sanjay.  Besides even if David thought he was going to be punched it is not within the rules of football to punch anyone in the game, especially the referee, which brings me to my next point.

• The defence of consent in properly conducted games and sports:

With many games and sports there is always a risk of some bodily harm occurring.  The most obvious is boxing, where, by the very nature of the sport, the participants intend to cause harm to the other.  It was clearly affirmed by the House of Lords in the case of Brown 1994, that the sport of boxing is a lawful activity.  ‘Cudgels, foils and wrestling’ were other examples which came under the heading of ‘manly diversions’ which were said ‘to give strength, skill and activity, and may fit people for defence, public as well as personal, in time of need’.  With regard to these ‘manly diversions’, which include related sports like football, rugby and hockey, the victim is said to consent to harm that occurs within the rules of the game, provided that the defendant did not intend to cause serious injury.  If he did have such an intention, then it would be irrelevant that he was playing within the rules.  

In the case of David, the accidental clash of heads whilst jumping for the ball with Martin cannot be said to be an assault of battery, as it comes within the rules of the games and neither of the players intended to cause serious injury.  The other offence of David jumping wildly into a late challenge on Martin cannot be classed as an assault of battery as tackling is part of the game, and as long as David had not intention of causing serious harm he can not be charged under the OAPA 1861.  A case which contravenes this is the case of Roy Keane of Manchester United, when he intentionally jumped into a late tackle with the intention of retribution in causing serious harm to another player.  As stated before the act of David punching Sanjay is totally out of the rules of football and therefore can be charged under The Criminal Justice Act 1988, s. 39 with a battery, as he intentionally and recklessly applied unlawful force upon Sanjay.

Offences Against the Person Act 1861, s. 47

According to s. 47:  Whoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable....

Section 47 of the Offences Against the Person Act 1861 provides that it is an offence to commit ‘any assault occasioning actual bodily harm’.  This offence is commonly known as ABH.  The crime is triable either way and if found guilty the defendant is liable to a maximum sentence of five years’ imprisonment.

Actus reus:  Despite the fact that the act uses the term ‘assault’ for this offence, s. 47 has been interpreted as being committed with either assault or battery.  The first requirement is, therefore, to prove the actus reus of assault or battery, as defined above.  In addition, the prosecution must show that the assault of battery cause ABH.  Both Ireland and Constanza, discussed in the context of assault, were concerned with this offence as the issue of assault arose in the context of the actus reus of a s. 47 crime.  Actual bodily harm has been given a wide interpretation.  In Miller 1954, the court stated: ‘Actual bodily harm includes hurt or injury calculated to interfere with health of comfort.’ Thus ABH can occur simply where discomfort to the person is caused.  However in R v Chan-Fook 1994, where Hobhouse LJ said in the Court of Appeal: ‘The word “actual” indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant.’

Mens rea:  The mens rea of assault occasioning ABH is the same as for assault or battery.  No additional mens rea is required in relation to the actual bodily harm, as the case of R v Roberts 1978 shows.  (Late at night, the defendant gave a lift in his car to a girl. Dring the journey he made unwanted sexual advances, touching the girl’s clothes.  Frightened that he was going to rape her, she jumped out of the moving car, injuring herself).  It was held that the defendant committed the actus reus of a s. 47 offence by touching the girl’s clothes – sufficient for the actus reus of battery – and this act had caused her to suffer actual bodily harm.  The defendant tried to argue that he lacked the mens rea for the offence, as he neither intended to cause her actual bodily harm, nor did he see any risk of her suffering actual bodily harm as a result of his advances.  This argument was rejected: the court held that the mens rea for battery was sufficient in itself, and there was no need for any extra mens rea regarding the actual bodily harm.  

Referring to David’s latter offence, it is clear that his actions suffice both the actus reus and mens rea for a s. 47 offence and therefore is likely to be charges with ABH.  

Offences Against the Person Act 1861, s. 20

Actus reus:  This consists of an unlawful wounding or the unlawful infliction of grievous bodily harm.  Wounding requires a breaking in the skin, so there will normally be bleeding, though a graze will be sufficient.   In C (a minor) v Eisenhower 1984 the defendant fired an air pistol, hitting the victim in the eye with a pellet.  This ruptured a blood vessel in the eye, causing internal bleeding, but the injury was not sufficient to constitute a wounding, as the shin had not broken.  In DPP v Smith 1961  the House of Lords emphasized that grievous bodily harm (GBH) is a phrase that should be given its ordinary and natural meaning, which is simply ‘really serious harm’.  This was confirmed in Saunders 1985 where the Court of Appeal said that there was no real difference between the terms ‘serious’ and ‘really serious’.

Mens rea:  The wounding or infliction of grievous bodily harm must be done ‘maliciously’ (intentionally).  The defendant must have shown to have intended to inflict harm or have been reckless as to whether such harm would occur.  It was decides that the defendant would only be liable if he had actually foreseen his actions would cause grievous bodily harm, i.e. really serious harm. Currently the defendant can be convicted more easily.  It was decided by the Court of Appeal in Mowatt 1968, that foresight of such a high degree of harm need not be proved. It is enough for the prosecution to show that some harm would result.  The House of Lords in Savage and Parmenter 1992 approved of this diluting of the mens rea for grievous bodily harm under s. 20.

I feel that the nose bleed that Sanjay suffered is serious not serious enough to fall under the category of GBH, also it does not fall under the category of wounding as the bleeding was internal. Although David maliciously inflicted some form of bodily harm it is not serious enough to suffice s. 20 of the OAPA 1861.  Another point is that the actus reus can not be proved therefore he can not be convicted of a s. 20 offence, therefore is unable to be convicted of the more serious (and more so similar) s.18 of the OAPA 1861, which only differs in the context that it includes the word ‘cause’ rather than ‘inflict’. Cause is where any actions could lead up to the other being seriously harmed whereas inflict is usually where the other has been primarily harmed by ones direct actions

Concluding from this I feel that David will be convicted of a battery under the Criminal Justice Act 1988, s. 39 and also be convicted under the Offences Against the Person Act, s. 47.  This type of offence is totally outside the rules of football, therefore he has no defence which he can use.