Non-Fatal Offences Against the Person
Non-Fatal Offences Against the Person
Non-fatal offences range from common assault to grievous bodily harm (GBH). They are governed primarily by the Offences Against the Person Act 1861 (OAPA 1861) — a Victorian statute widely criticised as outdated and incoherent — and the Criminal Justice Act 1988.
The Hierarchy of Offences
| Offence | Source | Mens Rea | Maximum Sentence |
|---|---|---|---|
| Assault | Common law / CJA 1988, s.39 | Intention or recklessness as to causing V to apprehend immediate unlawful force | 6 months |
| Battery | Common law / CJA 1988, s.39 | Intention or recklessness as to applying unlawful force | 6 months |
| ABH (s.47) | OAPA 1861, s.47 | Intention or recklessness as to assault or battery (no need to foresee harm) | 5 years |
| GBH/Wounding (s.20) | OAPA 1861, s.20 | Intention or recklessness as to some harm | 5 years |
| GBH/Wounding with intent (s.18) | OAPA 1861, s.18 | Intention to cause GBH (or to resist arrest) | Life |
Assault
Actus reus: causing the victim to apprehend immediate unlawful personal violence.
- No physical contact is required — assault is about the victim's fear or anticipation
- Words alone can constitute an assault — R v Constanza [1997] (stalker's letters); R v Ireland [1998] (silent telephone calls — the House of Lords held these could amount to assault)
- Words can also negate an assault — Tuberville v Savage [1669]: "If it were not assize time, I would not take such language from you" (while placing his hand on his sword) — the conditional words negatived the threat
- Immediacy is interpreted broadly — in Smith v Chief Superintendent of Woking [1983], a man looking through the victim's window at night was held to have committed an assault, as the victim feared what he might do next
Mens rea: intention or subjective recklessness (Cunningham recklessness) as to causing the victim to apprehend immediate unlawful force.
Battery
Actus reus: the application of unlawful physical force to another person. Any touching suffices — it need not cause pain or injury.
- The force can be indirect — DPP v K [1990]: a schoolboy put acid in a hand dryer; another pupil used it and was burned. Fagan v MPC [1969]: driving onto a police officer's foot (continuing act)
- Thomas v NUM [1986] — touching someone's clothes can be a battery
- Implied consent for everyday physical contact (e.g. jostling on public transport) means not every touch is a battery — Collins v Wilcock [1984]
Mens rea: intention or subjective recklessness as to applying unlawful force.
Actual Bodily Harm — s.47 OAPA 1861
Actus reus: an assault or battery causing actual bodily harm. ABH is defined as "any hurt or injury calculated to interfere with the health or comfort of the victim" (R v Miller [1954]), provided it is not merely transient or trifling.
- A bruise, graze, or scratch can suffice
- Psychiatric injury amounts to ABH — R v Chan-Fook [1994] and R v Ireland [1998] confirmed this, but mere emotions (fear, distress, panic) do not
- Cutting hair can be ABH — DPP v Smith (Michael) [2006]
Mens rea: the prosecution need only prove the mens rea for assault or battery — there is no need to prove foresight of any harm (R v Savage; R v Parmenter [1992]). This makes s.47 a constructive offence and is a key point of criticism.
Grievous Bodily Harm / Wounding — s.20 OAPA 1861
"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..."
Actus reus: wounding or inflicting GBH.
- Wounding = a break in the continuity of the whole skin (both layers — dermis and epidermis): JCC v Eisenhower [1984] — a ruptured blood vessel in the eye was not a wound as the skin was not broken
- GBH = "really serious harm" (DPP v Smith [1961]) — though in R v Saunders [1985], the Court of Appeal held that "serious harm" suffices (the word "really" is not essential)
- GBH includes psychiatric injury (R v Burstow [1998]) and can include the transmission of disease (R v Dica [2004] — reckless transmission of HIV)
- "Inflict" no longer requires a direct application of force — R v Ireland; R v Burstow [1998] confirmed that s.20 does not require an assault
Mens rea: intention or Cunningham recklessness as to causing some physical harm (R v Mowatt [1968]) — the defendant need not foresee serious harm, only some harm. "Maliciously" means intentionally or recklessly (R v Cunningham [1957]).
Grievous Bodily Harm with Intent — s.18 OAPA 1861
"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 detaining of any person..."
Actus reus: wounding or causing GBH (same physical elements as s.20, though s.18 uses "cause" rather than "inflict" — a slightly broader term).
Mens rea: specific intent to:
- Cause GBH, or
- Resist or prevent lawful arrest (with intent to cause some harm)
This is a specific intent offence — recklessness is not sufficient (unlike s.20). Oblique intention under Woollin may apply. The maximum sentence is life imprisonment, reflecting the seriousness of intentional violence.
Distinguishing s.18 and s.20
| Feature | s.20 | s.18 |
|---|---|---|
| Maximum sentence | 5 years | Life |
| Mens rea | Intent/recklessness as to some harm | Intent to cause GBH |
| Specific intent? | No (basic intent) | Yes |
| Intoxication defence? | No (Majewski) | Yes (negating specific intent) |
Criticism and Reform
The OAPA 1861 has been heavily criticised:
- Archaic language — "maliciously," "grievous," "whosoever" — is unclear and outdated
- Inconsistency — s.47 (ABH) and s.20 (GBH/wounding) carry the same maximum sentence (5 years) despite covering very different levels of harm
- Constructive liability — s.47 requires only the mens rea for assault/battery, not for the harm actually caused
- The mens rea for s.20 is too low — only foresight of "some harm" for a serious offence
- No logical progression — the hierarchy of offences is not coherent in terms of actus reus, mens rea, and sentencing
The Law Commission Draft Criminal Law Bill (1998) proposed replacing the current offences with a clear hierarchy:
1. Intentionally causing serious injury (replacing s.18) — max life
2. Recklessly causing serious injury (replacing s.20) — max 7 years
3. Intentionally or recklessly causing injury (replacing s.47) — max 5 years
4. Assault (common assault/battery) — max 6 months
These reforms have not been implemented.
Exam tips:
- Always identify the correct offence by matching the level of harm to the mens rea
- Compare s.18 and s.20 explicitly — the mens rea distinction is a favourite exam question
- Criticise the 1861 Act and discuss reform proposals
- Remember: s.47 is constructive — no foresight of harm needed
- Use R v Ireland; R v Burstow for psychiatric harm across the hierarchy