Assaulting our Common Sense – The Impact of DPP v K

Published date01 July 1990
Date01 July 1990
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb02833.x
CASES
Assaulting our
Common Sense
-
The
Impact
of
DPP
v
K
Kate
Harrison
and
Berni Bell*
The recent decision in
DPP
v
K’
has changed the law of assault. The effect of the
decision is that assault can now be committed with
Culdwel12
recklessness, by indirect
application of force and by failure to remedy an existing dangerous situation created by
the defendant. This in turn means that liability for assault occasioning actual bodily harm
under section
473
of the Offences against the Person Act
1861
(the
1861
Act) can be
established if it is proved that the defendant recklessly caused bodily harm, by act or
omission, a result which extends the meaning of section
47
beyond recognition. If the
decision is followed it could mean that leaving a rake on the garden path could be one
step (literally) on the way to conviction for assault. The gardener realises that the rake
presents a hazard and intends to put the rake away. Before she does and on a dark winter’s
morning, the milkman trips over it.
Is
the gardener guilty of assault? If the milkman is
bruised, is the gardener guilty of assault occasioning actual bodily harm under section
47
of the
1861
Act? Suppose that the ‘milkman’ in the example is replaced by a policeman
on his way to report an accident.
Is
the gardener guilty of assaulting a constable in the
execution of his duty under section
51
of the Police Act
1964?
DPP
v
K
The respondent, a schoolboy of
15,
had been attending a chemistry lesson. The experiment
which was being conducted used, among other things, sulphuric acid. The need for care
and the dangers of working with acid were pointed out in the lesson.
K
splashed some
acid onto his hand and was given permission to go to the lavatory to wash.
K
secretly
took a boiling tube of sulphuric acid with him and conducted his own experiment, using
acid on toilet paper. He then heard footsteps, panicked and poured the remaining acid
into the upturned nozzle of the hot air hand and face drier. Hearing the footsteps go away,
K
left the lavatory and returned to his classroom. He intended to return later to wash out
the drier. But before he did (and the report of the case does not say how much later) another
pupil turned on the drier. Acid was ejected from the machine onto his face, causing a
permanent scar.
K
was originally charged with unlawfully and maliciously inflicting grievous bodily
harm contrary to section
20,4
and with assault occasioning actual bodily harm contrary
to section
47
of
the
1861
Act. The magistrates acquitted
K
of both offences.
~
*Bristol Polytechnic.
1
ri99oi
1
~ii
ER
331.
2
3
4
518
ii982j
AC
341.
Section 47, as amended, provides ‘Whosoever shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable
. .
.
to
a term of imprisonment not exceeding five years.’
Section 20
of
the Offences against the Person Act 1861, as amended, provides ‘Whosoever shall unlawfully
and maliciously wound
or
inflict any grievous bodily harm upon any other person either with
or
without
any weapon or instrument shall
be
guilty
of
an offence, and being convicted thereof shall be liable
. .
.
to
a term of imprisonment not exceeding five years.’
me
Modern
Law
Review
53:4 July 1990 0026-7961

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