Non-fatal offences is an area of the law that has attracted much criticism and it is unanimously accepted that it is in need of reform.
Defendant was being held for shoplifting and spat in a police officer's eye.
.. Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free... [Offences Against the Person Act 1861 is] yet another example of how bad laws cost money and clog up the courts with better things to do...
The Offences Against the Person Act 1861 (OAPA 1861) aimed to bring together existing common law into a statute and was never written as a logical and consistent set of rules. Many issues surrounding non-fatal offences arise from the fact the OAPA 1861 lacks basic explanation and clarity.
The OAPA 1861 lacks definitions of key words and phrases and therefore the meaning must be developed through case law, which is a less finite way to create definitions. Terms are constantly being argued and redefined in appeals leading to a lack of clear decision making.
maliciouslyis used in both S20 and S18 but is not defined in the OAPA 1861.
Maliciouslyhas been interpreted to mean
recklessly(Cunningham (1957)) which is clearly an extension of its ordinary modern meaning, which would simply imply bad motive.
maliciouslyis used to infer mens rea but under S18 it is unnecessary as mens rea is defined as
batteryare elements of many offences against the person their definition is particularly important but remains unclear.
Confusion surrounds the precise meaning of
assaultand is compounded by the use of the term
common assault, which is commonly agreed can refer to the offences of
assaulthas been used in different ways in different statues and even within the same statute has been given different meanings. S39 of the Criminal Justice Act 1988 (CJA 1988) refers to
common assault and batterybut S40 refers to
a common assault.
Assaulthas not been clearly defined in legislation, although the length of sentence and offence classification for
common assault and batterywas set out in S39 of CJA 1998.
‘Inflict’ and ‘cause’
S20 defines the offence by the phrase
inflict any grievous bodily harmcompared to S18 which states
cause any grievous bodily harm.
Originally it was understood that
inflicthad a narrower meaning than
causeand required an assault or battery. However, it has now been established that neither are required and
causehave the same meaning (Burstow (1997)).
This wider interpretation has been criticised for permitting liability under S20 where there is insufficient fault on the defendant’s behalf to justify such a serious conviction. Perversely, a defendant could be held liable for a S20 offence with mens rea of subjective recklessness more easily than be liable for the lesser offence under S47 which does require an assault.
The OAPA 1861 does not define the term
wound. It is through case law that breaking of the skin has developed as the key factor in wounding (JCC v Eisenhower (1994)).
This definition developed in case law does not follow the normal understanding of the word
Theoretically, it allows for an injury caused by pin prick to be counted as a S20 wounding offence. The CPS Charging Standards recommend more minor injuries are charged under S47 but these are only guidelines and not legally binding. Once a charge has been brought it will be decided in relation to case law and statute.
The offence under S39 of the CJA 1998 and the offences under S47, S20 and S18 of the OAPA 1861 were not designed as a logical hierarchy and this causes inherent problems with non-fatal offences against the person.
There are conflicting ideas about what is sufficient mens rea.
S47 offence has the same mens rea as the lesser offence of assault or battery (Roberts (1971)). It can argued this is unjust as it does not even require the defendant to realise that there is a risk of any injury.
Liability for grievous bodily harm will occur where a defendant intended minor harm or was reckless as to causing some harm (Mowatt (1976)).
These requirements for mens rea can be criticised as the punishment fails to meet the culpability of the defendant and are therefore unfair.
Inconsistencies exist in the maximum sentences available for each offence.
For an offence of assault or battery under S39 of the CJA 1998 there is a maximum 6 month prison sentence. For a S47 offence under the OAPA 1861 there is a maximum 5 year prison sentence. The mens rea is the same for the two offences and so it can be argued the variance in potential sentence produces an unjust result.
Under the OAPA 1861, both a S20 and S47 offence have a maximum 5 year prison sentence. However, both offences require the same mens rea but a S20 offence causes a much more serious injury.
Commenting on the problem of illogical sentencing, the legal philosopher HLA Hart wrote:
.. [it] might bring the law into disrepute.. [as] principles of justice or fairness between different offenders require morally distinguishable offences to be treated differently and morally similar offences to be treated alike....
It can be argued that the OAPA 1861 fails to reflect the social issues and concerns relevant today. These problems can help strengthen the demand for updated legislation in this area to expressly cover new circumstances.
Since 1861, there have been vast changes in the way in which we communicate and so there are many issues raised by the modern use of telephones and emails etc. Leaving judges to interpret the law in relation to completely new technologies.
bodily harmis used in S47, S20 and S18 and did not recognise the possibility of psychiatric illness caused through fear. This has required judges to develop case law alongside greater medical knowledge (Ireland (1997)).
Lord Steyn noted:
.. the Victorian legislator... would not have in mind psychiatric illness...(Burstow (1997)). His comments clearly raise concerns that the law does not reflect the developments there have been in understanding mental health issues.
Knowledge about transmission of disease has also developed. Defendants can now be liable for infecting others with diseases such as HIV (Dica (2004)).
Proposals for reform
Criminal Law Revision Committee
The Criminal Law Revision Committee (1981) was set up to look at the need for reform as there was such widespread criticism of the current legislation. It published findings which lead to the Law Commission undertaking research in the area.
Law Commission published a report
Legislating the Criminal Code: Offences Against the Person and General Principles in 1993. The report described the OAPA 1861 and the law of common assault as
... inefficient as a vehicle for controlling violence... many aspects of the law are still obscure and its application erratic...
The Report also contained a draft bill addressing some of the problems but it has not been considered in Parliament.
In 1998, the Home Office published a consultation paper
Violence: Reforming the Offences against the Person Act 1861 which included a Draft Bill.
The Bill was largely based on the Law Commission proposals. The Bill set out the offences in a more logical structure, replacing the offences under the OAPA 1861.
Assault and battery
Statutory definitions for these offences.
An offence of intentionally or recklessly causing injury to another.
To carry a maximum sentence of five years imprisonment.
Not necessary to prove the injury was caused by an assault or battery.
An offence of recklessly causing a serious injury to another.
To carry a maximum sentence of seven years.
inflictand replaced with
No reference to wounding.
An offence of intentionally causing a serious injury to another.
To carry a maximum sentence of life.
No reference to wounding.
Injurydefined to mean
physical injury(including pain, unconsciousness and any impairment to physical condition) and
mental injury(including any impairment of a person’s mental health).
The harm intended or foreseen must relate to the offence committed (contrary to Mowatt (1976) and Roberts (1971)).
Intention and recklessness are expressly defined.
The Draft Bill has received much criticism which has led to a lack of progress in its introduction and means it has not been enacted.
There is also concern that the proposals have still not been adopted and the law remains unsatisfactory.
It has been argued that the proposed new S47 offence of intentionally or recklessly causing injury to another should be split into two offences, intentionally causing injury to another and recklessly causing injury to another. This would bring the offences in line with those replacing S20 and S18 offences.
The new definition of
injuryhas been criticised for failing to make a clear distinction between what is sufficient for an injury and what would be charged as the lesser offence of assault.
assaultcontinues to mean both an assault and battery.