Published On: 10th October, 2024
Authored By: Mehak Mustafa
City St Georges University of London
Abstract
The focus of this article is on evaluating non-fatal offences against the person, examining the issues within the current legal framework that have led to confusion and uncertainty. Specifically, it addresses the outdated and problematic aspects of the law governing non-fatal offences, such as those found in the Offences Against the Person Act 1861 and discusses the need for comprehensive reform. The article finds that the urgent need for thorough revisions to bring the legislation into compliance with modern legal norms and social expectations.
Background
Although it has long been a pillar of criminal law, the legal framework for dealing with non-fatal offences against the person is becoming more and more out of date and in need of revision. The Offences Against the Person Act of 1861 (OAPA 1861), which is the basic law covering serious offences including assault, battery, and grievous bodily injury, is the cornerstone of this framework despite its antiquity. A product of its day, the OAPA 1861 was created to meet the legal and social demands of the 19th century. Nonetheless, the fact that it is still in use today has brought to light a number of flaws, such as its antiquated wording, imprecise meanings, and uneven sentencing guidelines.
Introduction
Non-fatal offences against the person, as the term suggests, are crimes that result in harm or injury to the victim but do not cause death.[1] These offences are divided into two categories: common law offences and statutory offences.[2] There are five key offences in total. Under common law, the offences are assault and battery, which are collectively referred to as “common assault.” Despite their common law origins, these offences are charged under Section 39 of the Criminal Justice Act 1988. The statutory offences, on the other hand, are governed by the Offences Against the Person Act (OAPA) 1861. These include assault occasioning actual bodily harm under Section 47, malicious wounding or inflicting grievous bodily harm under Section 20, and malicious wounding or inflicting grievous bodily harm with intent to cause serious harm under Section 18 of the OAPA 1861
Overview of Non-Fatal Offences Against the Person and Their Current Legal Framework
As we move up the hierarchy of non-fatal offences, the severity of harm and the type of injury inflicted become more serious, as reflected in their legal definitions. Each offence is characterized by specific elements of actus reus (the guilty act) and mens rea (the guilty mind).
Assault, which is the least serious of the non-fatal offences, does not involve any physical contact. Common law defines assault as “an act which causes the victim to apprehend the infliction of immediate, unlawful force.” The actus reus of assault consists of two key elements: an act, and the causation of the victim’s apprehension of immediate unlawful force.
To constitute an assault, there must be a positive act—mere omissions or failures to act do not satisfy this requirement.[3] The act itself can take various forms, including verbal or written words[4], spitting[5], or even silent telephone calls[6]. It is important that the act in question be unlawful; a lawful act cannot form the basis of an assault charge.
The interpretation of “immediate” in the context of assault has been clarified through case law. It was held that “immediate” does not mean “instantaneous” but rather “imminent.”[7] Thus, an assault can occur even if the threatened harm does not happen straight away, as long as the victim fears that force might be applied imminently. Additionally, if words are used to indicate that there will be no violence, this can negate the act of assault, as it prevents the victim from reasonably apprehending immediate unlawful force. The men’s rea of assault is either the intent to cause the victim to fear immediate unlawful physical violence or subjective recklessness regarding whether such fear is caused.
Battery is defined as “the application of unlawful force to another person.” The actus reus involves the application of unlawful physical force, no matter how slight, to another individual. The term “force” can be misleading, as even the slightest touch can constitute a battery if it is unlawful. However, as established in Collins v Wilcock[8], a slight degree of force is acceptable as long as it is reasonable under the circumstances. The mens rea requires either an intention to apply unlawful force or subjective recklessness regarding whether such force is applied.
Under the Offences Against the Person Act 1861 (OAPA 1861), there are several statutory offences related to non-fatal harm, with Section 47, Section 20, and Section 18 arranged in ascending order of severity.
Section 47 addresses offences where the victim suffers actual bodily harm (ABH). The statute states that “whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable to imprisonment for five years.” To establish the actus reus for a Section 47 offence, three elements must be proven:
- Assault: This includes either an assault or a battery, and all elements of these offences must be established.
- Occasioning: This means “causing,” so it must be shown that the assault or battery directly led to the harm.
- Actual Bodily Harm: The victim must have suffered harm that is more than trivial but less serious than grievous bodily harm.
In R v Chan Fook[9], the court determined that ABH is not restricted to physical injuries but also includes identifiable psychiatric harm.
Section 47 OAPA 1861 does not specify a particular mens rea requirement for the offence. Consequently, the courts have ruled that the mens rea for the underlying assault or battery is sufficient for a conviction under this section.
Section 20 deals with malicious wounding or the infliction of GBH. Under this section it states that ‘whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without a weapon or instrument shall be guilty of an offence and shall be liable to imprisonment for not more than five years.’ The elements of the actus reus include unlawful, wounding and GBH.
The act in question must be unlawful, and issues often arise around the concept of consent. For instance, in R v Melin[10], a doctor administered Botox to a patient, resulting in physical harm. Although the patient had consented to the procedure, the consent was deemed invalid because the doctor had misled her about being medically qualified. Consent is a key issue under s 47, as seen in R v Brown[11] and R v BM[12]. The court held that consent does not provide a defence if it is given without a good reason, meaning that even if the victim consents to the harm, it may not be valid in the eyes of the law.
A wound is defined as an injury involving a ‘cut or break’ in the continuity of the skin. However, internal bleeding without an accompanying break in the skin does not qualify as a wound, as established in JJC v Eisenhower[13]. A wound is said to be evidenced by visible bleeding.
Grievous Bodily Harm (GBH) is defined as extremely serious harm, which can include severe physical injury, significant psychiatric damage, or the deliberate transmission of a serious disease.
In R v Cunningham[14], the term ‘maliciously’ was understood to mean either intending to cause the specific harm that occurred or being reckless about whether such harm would result. This interpretation was upheld by the House of Lords in R v Parmenter[15], which confirmed that offences using the term ‘maliciously’ should be understood according to the Cunningham standard of recklessness. Consequently, for an offence under Section 20, the prosecution must demonstrate that the defendant either intended to inflict some harm or was subjectively reckless as to whether some harm would be caused. There is no requirement for the defendant to foresee the exact nature of the injury that ultimately occurred.
Section 18 of the 1861 act represents the most severe category of non-fatal offences, as reflected in its maximum penalty of life imprisonment compared to the five-year maximum for Section 20.
Section 18 states: “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of an offence.”
The actus reus for s18 can be established in two ways: by either wounding or causing grievous bodily harm. These definitions align with those found in Section 20, with the term “cause” being interpreted broadly. It is sufficient to demonstrate that the defendant’s actions were a substantial cause of the grievous bodily harm.
Given that Section 18 is classified as a specific intent offence, mere recklessness is insufficient for the mens rea. The prosecution must prove that the defendant had the specific intention either to inflict grievous bodily harm or to resist or prevent the lawful apprehension or detention of another person. Although the term “maliciously” appears in Section 18, it does not alter the mens rea requirements for this offence.
Criticisms and Challenges of the Current Legal Framework for Non-Fatal Offences
There are numerous criticisms of the current legal framework for non-fatal offences[16], highlighting several areas where the law is seen as outdated, inconsistent, and unclear.
The current legal framework for non-fatal offences, established 163 years ago in 1861, is significantly outdated. At the time, there was a limited understanding of mental health issues, which is reflected in the law’s initial focus solely on physical harm. It wasn’t until the case of R v Chan-Fook[17] that the courts began to recognize psychiatric harm as a form of actual bodily harm, and not until R v Dica[18] and R v Golding[19] that the transmission of sexually transmitted diseases was considered under the scope of grievous bodily harm.
Additionally, the language used in the Offences Against the Person Act 1861 is antiquated and not commonly understood today. Terms like “grievous” are rarely used in modern English, and the Act also includes vague terminology that lacks precise definition, such as “maliciously,” in sections 20 and 18 which can be interpreted differently depending on the context. Even fundamental terms like “assault” have varied meanings, further contributing to the confusion and inconsistency in the law’s application.
This highlights the need for modern, simplified language in the legal framework. For instance, Section 20 of the Offences Against the Person Act 1861 uses the term “maliciously.” In today’s English, “maliciously” generally suggests a deliberate intent to cause harm or acting with ill will. However, within the context of the 1861 Act, “maliciously” in Section 20 was interpreted to mean that the defendant either intended to cause some harm or was subjectively reckless as to whether harm would occur. Additionally, the use of the term “maliciously” in Section 18 has no specific meaning, further complicating its interpretation.
Another issue arises with the use of the terms “inflict” in Section 20 and “cause” in Section 18. Initially, there was confusion over whether “inflict” implied a technical assault, but this was clarified in the case of R v Burstow[20]. The court ruled that “inflict” in Section 20 does not require a technical assault, and it effectively means the same as “cause” in Section 18.
The term “assault” has been used in various contexts to convey different meanings. For example, there is the specific common law offence of assault, the phrase “assault and battery” as used in “common assault,” and the underlying offences of assault and battery in the context of Section 47 of the Offences Against the Person Act 1861. Each of these uses creates potential confusion due to the different legal interpretations attached to the term “assault.”
Such discrepancies and ambiguities demonstrate the need for clearer, more consistent terminology in legal statutes.
The Act has many inconsistencies, one of which is evident in the disparities between the maximum sentences for different offences. For example, the maximum penalty for assault or battery is six months’ imprisonment. However, an offence under Section 47, which is based on assault or battery causing actual bodily harm, carries a much harsher maximum sentence of five years’ imprisonment. This discrepancy seems unfair, given that Section 47 offences are rooted in the same foundational acts as assault and battery.
Additionally, there’s a puzzling overlap in sentencing between Section 47 and Section 20 offences. Both carry a maximum sentence of five years’ imprisonment, despite the fact that Section 20 offences are far more severe. Section 20 requires either a wound, defined as a cut or break in the skin, or grievous bodily harm (GBH), which is far more serious than the harm required for a Section 47 offence. This overlap fails to account for the varying degrees of severity between these offences.
Moreover, the distinction between different levels of injury is often blurred. A minor wound, such as a pinprick that draws blood, could elevate a charge from Section 47 to Section 20 simply because it meets the technical definition of a wound. This reliance on subtle distinctions leaves it up to the prosecution to select an appropriate charge and the court to impose a fitting sentence, which can lead to inconsistency and unpredictability in sentencing outcomes.
Section 18 of the 1861 Act is the only provision that truly aligns the severity of the offence with the level of harm inflicted on the victim, as it carries a maximum sentence of life imprisonment. However, there remains a significant disparity between the penalties for Section 20 and Section 18 offences, with the maximum sentence jumping dramatically from five years for Section 20 to life imprisonment for Section 18.
One positive aspect of the 1861 Act is its “ladder of offences” model, which, despite its issues, does reflect the progression of common law principles. This tiered structure for categorizing offences based on their seriousness is also aligned with the approach historically favoured by the Home Office, offering a clear hierarchy for different levels of harm.
Proposed Reforms for the Offences Against the Person Act
As highlighted throughout this article, it is evident that the Offences Against the Person Act urgently requires reform, both in its structure and its outdated language. Several attempts have already been made to address these issues; since the 1980s, there have been six efforts to propose changes through government documents, including a Law Commission consultation paper in 1992.[21] Most people, including members of the judiciary, police, and legal practitioners, believe that reform would lead to greater efficiency.[22] The Law Commission gathered input from various professionals within the criminal justice system to evaluate the overall support for reform and 88% of people agreed that OAPA needs reform.
In 1998 the home office issued a consultation document ‘violence, reforming the offences against the person act 1861.[23] The reform of the Offences Against the Person Act (OAPA) is centred around modernizing and clarifying the existing laws to better reflect contemporary understanding of violence and harm. The proposed changes aim to replace the outdated sections 18, 20, and 47 of the OAPA, which have historically created procedural and interpretive challenges due to their vague and archaic language.
A key aspect of the reform is the introduction of clearer and more precise definitions of offenses.[24] For example, the proposed changes suggest creating distinct offenses for causing serious injury and for causing minor injury, each with a different level of culpability and corresponding maximum sentence. The proposed new offense of “recklessly causing serious injury” will have a maximum sentence of seven years[25], clearly distinguishing it from offenses involving less serious harm. This differentiation allows for a more proportionate response to various levels of harm and better aligns with modern legal principles.
Discussion
The non-fatal offences governed by the offences Against the Person Act 1861 (OAPA 1861) are heavily criticised for being antiquated and uneven. Words like “maliciously” and “grievous” are examples of outdated, ambiguous terminology that can cause misunderstandings and differing meanings. Inconsistencies in sentencing, such as the comparable punishments for essentially distinct acts under Sections 20 and 47, further demonstrate the Act’s disconnection from contemporary legal thought. These problems highlight how urgently thorough change is needed to make sure the legislation is understandable, uniform, and up to date.
Conclusion
In conclusion, the Offences Against the Person Act 1861 stands as a historic but increasingly outdated piece of legislation that fails to adequately address the complexities of modern criminal behavior and societal expectations. The existing framework, established over a century and a half ago, has proven to be both inconsistent and insufficient in its treatment of non-fatal offenses. This has led to confusion, disparity in sentencing, and a lack of clarity in legal definitions.
References
Clarkson C, Understanding Criminal Law (4th edn Sweet & Maxwell 2005) 180.
Demetriou S, ‘Not Giving Up the Fight: A review of the Law Commission’s Scoping Report on Non-fatal offences Against the Person’, (2016) 80(3) 188,191.
Eugenicos A, “Should We Reform the Offences Against the Person Act 1861?” The Journal of Criminal Law 81(1) (2017).
Horder J, ‘Rethinking Non-Fatal Offences against the Person’ (1994) 14(3) Oxford Journal of Legal Studies 335,335.
Jefferson M, ‘Offences against the Person: Into the 21st Century’, (2012) 76(6) Offences against the Person: Into the 21st Century 472,490.
Reed A, ‘Offences Against The Person: The Need For Reform’ (1995) Journal of Criminal Law 187,187.
Smith J.C, ‘Liability for omissions in the Criminal Law’ (1984) Legal Studies 4 Legal Stud 88,99.
[1] Jeremy Horder, ‘Rethinking Non-Fatal Offences against the Person’ (1994) 14(3) Oxford Journal of Legal Studies 335,335.
[2] Christopher M.V. Clarkson, Understanding Criminal Law (4th edn Sweet & Maxwell 2005) 180.
[3] J.C. Smith, ‘Liability for omissions in the Criminal Law’ (1984) Legal Studies 4 Legal Stud 88,99.
[4] R v Constanza [1997] Crim LR 576.
[5] R v Misalati [2017] EWCA Crim 2226.
[6] R v Ireland [1997] 3 WLR 534.
[7] Smith c Chief Superintendent of Working Police Station [1983] Crim LR 323.
[8] [1984] 1 W.L.R. 1172 (DC) 1177.
[9] [1994] 1 WLR 689.
[10] [2019] EWCA Crim 557.
[11] [1993] 2 All ER 75.
[12] [2018] EWCA Crim 560.
[13] [1984] Q.B. 331.
[14] [1957] 2 QB 396.
[15] [1991] 94 Cr App R 193.
[16] Alan Reed, ‘Offences Against The Person: The Need For Reform’ (1995) Journal of Criminal Law 187,187.
[17] [1994] 1 WLR 689.
[18] [2004] EWCA Crim 1103.
[19] [2014] EWCA Crim 889.
[20] [1997] 3 WLR 534 [1998] AC 147.
[21] Alexandra-Maria Eugenicos, ‘Should We Reform the Offences Against the Person Act 1861?’ (2017) 81(1) The Journal of Criminal Law 26,27.
[22] Alexandra-Maria Eugenicos (n17) 26.
[23] Michael Jefferson, ‘Offences against the Person: Into the 21st Century’, (2012) 76(6) Offences against the Person: Into the 21st Century 472,490.
[24] Stavros Demetriou, ‘Not Giving Up the Fight: A review of the Law Commission’s Scoping Report on Non-fatal offences Against the Person’, (2016) 80(3) 188,191.
[25] Alexandra-Maria Eugenicos (n17) 26.
