Criminal Law - Non Fatal Offences Against The Person

Question 1

What does s47 of the OAPA deal with?

Answer 1

Assault occasioning actual bodily harm.

Question 2

When was the Offences against the person Act passed?

Answer 2

1861.

Question 3

What type of offence is actual bodily harm?

Answer 3

It is a triable-either-way offence.

Question 4

Does s47 define itself?

Answer 4

There is no definition of ‘assault’ or ‘actual bodily harm’ nor is there any reference to the level of mens rea required for the offence. Therefore, it is necessary to look at case law.

Question 5

What is the definition of assault occasioning actual bodily harm?

Answer 5

It is an assault or battery which causes actual bodily harm. It must be done with the intention of causing the victim to fear unlawful force, or with the intention of subjecting the victim to unlawful force, or being subjectively reckless as to whether the victim fears or is subjected to unlawful force.

Question 6

What is the actus reus of s47?

Answer 6

it is necessary to prove that there was an assault or battery and that this caused actual bodily harm.

Question 7

Based on case examples what is actual bodily harm and what can fall under it?

Answer 7

In Miller it was said that actual bodily harm is ‘any hurt or injury calculated to interfere with the health or comfort of the victim’.

In T v DPP loss of consciousness, even momentarily, was held to be actual bodily harm.

In DPP v Smith it was decided that the cutting of a substantial bit of hair can equate to actual bodily harm. The court held that physical pain was not as necessity but as the hair was attached to the body it comes under actual bodily harm.

Question 8

What is actual bodily harm?

Answer 8

s47 can be charged when there is any injury. Bruising, grazes and scratches all come within this offence.

Question 9

How does actual bodily harm work in conjunction with psychiatric injury?

Answer 9

Psychiatric injury does fall under actual bodily harm as decided in R v Chan Fook, however, it was pointed out that actual bodily harm does not include “mere emotions such as fear, distress or panic” nor does it include “states of mind that are not themselves evidence of some identifiable clinical condition”.

Question 10

What did the House of Lords say about psychiatric injury as bodily harm?

Answer 10

The decision made by the Court of Appeal in R v Chan Fook was approved and they said that ‘bodily harm’ in s18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness.

Question 11

What section of the OAPA 1861 does assault occasioning actual bodily harm fall under?

Answer 11

s47

Question 12

What is the mens rea for s47?

Answer 12

The section in the Act makes no reference to mens rea but as assault or battery are the main elements the courts have decided:

• The underlying mens rea for the assault or battery is sufficient.
• Where actual bodily harm occurs, there is no need for D to intend to be reckless as to whether actual bodily harm could occur. Assault or battery recklessness will suffice.

All in all the D could have intended to cause actual bodily harm or just intended to inflict an assault or battery but actual bodily harm was caused.

Question 13

What 2 cases demonstrate the mens rea for s47?

Answer 13

• R v Roberts.

- R v Savage.

Question 14

What happened in R v Roberts and what is the legal point?

Answer 14

A girl jumped out of a moving car after D tried to take her coat off as she got scared he was going to commit a more serious assault. D was found guilty under s47 even though he had not intended any injury or realised there was a risk of injury. He intended to apply unlawful force when he touched her, this satisfied the mens rea for a common assault so he was guilty.

Question 15

What happened in R v Savage and what is the legal point?

Answer 15

The fact that D intended to throw beer over V meant she had the intention to apply unlawful force, despite the fact tat she did not intend to drop the bottle causing an injury and this was sufficient for the mens rea of s47.

Question 16

What is the textbook definition of assault occasioning actual bodily harm?

Answer 16

An assault which causes V actual bodily harm and D intends or is subjectively reckless as to whether the V fears unlawful force or is actually subjected to unlawful force.

Question 17

What type of offence is s20?

Answer 17

It is a triable-either-way offence.

Question 18

What is the max sentence for s20?

Answer 18

The max sentence is 5 years (the same as s47).

Question 19

What is the AR of s20?

Answer 19

The D either wounded the V or inflicted grievous bodily harm.

Question 20

What is the MR of s20?

Answer 20

D intended to cause some injury (but not serious) or was being reckless as to whether any injury was inflicted.

Question 21

What is a wound?

Answer 21

It’s a break in the continuity of the whole skin (a cut of the internal skin will suffice). Internal bleeding is not a wound (JJC v Eisenhower) and broken bones are not a wound unless there is a break in the skin (R v Wood).

Question 22

What is grievous bodily harm (GBH) and how has the definition adapted?

Answer 22

It is really serious harm which can be physical, psychiatric (R v Burstow) or the deliberate infection of a serious disease (R v Dica, HIV). The harm does not have to be life threatening.

DPP v Smith - GBH means ‘really serious harm’.
Saunders - A jury can be directed by saying ‘serious harm’ (no need for the word ‘really’).
R v Bollom - The V’s age and health can be used to assess the severity of the injuries.

Question 23

What does “inflicting” GBH mean for the AR of s20?

Answer 23

It was originally interpreted that a technical assault/battery had to occur (still wide interpretation seen). In R v Burstow it was decided that it had to be proved that D’s actions have led to the consequence of the V suffering GBH. This definition is similar to the AR of s18.

Question 24

What is the MR of s20 in more detail (case decisions)?

Answer 24

Cunningham - “maliciously” meant intention to do the harm that was done or recklessness as to whether such harm should occur or not.
R v Parmenter - H of L accepted the Cunningham definition of recklessness but said there is no need for the D to foresee serious injury just the intent to cause some harm is needed.

Question 25

What is the max life sentence for s18?

Answer 25

Life imprisonment.

Question 26

What does s18 deal with?

Answer 26

Wounding or causing GBH with intent.

Question 27

What type of offence is s18?

Answer 27

It is an indictable offence.

Question 28

What is the AR of s18?

Answer 28

Same as s20 but the word ‘cause’ means it must be proved that D’s act was a substantial cause in the harm occurring.

Question 29

What is the MR of s18?

Answer 29

D must be proved to have intended to:

• Do some GBH. OR
• Resist or prevent lawful apprehension [plus recklessness as to causing injury (R v Morrison)].

Intent to wound is not enough (R v Taylor) and as it is a specific intent offence recklessness is not enough either.

Question 30

How can all the offences be committed?

Answer 30

Through a direct act, an indirect act or omission.

Question 31

Why has the reform of the OAPA been long in the waiting?

Answer 31

It is a very old Act and many reports on this area of law have been published. 4 reports from the Law Commission and other bodies have been published.

Question 32

Why is the OAPA out of date?

Answer 32

As it is a very old Act when it came out there was:

• Little understanding on mental health problems so the Act only referred to ‘bodily’ harm. R v Chan Fook and R v Burstow had to amend this.
• Limited understanding of how diseases were transmitted so it did not include this as harm either. R v Dica had to amend this.

Question 33

How is inconsistency between offences present in the OAPA?

Answer 33

• There is inconsistency between the MRs. e.g. s47 has the same MR as assault or battery and the D does not have to even realise the risk of injury. The max sentence for assault/battery is 6 months imprisonment but s47 had a max of 5 years.
• Person who causes a small cut can be charged under s20. Some wounds do not equate to GBH.
• Max sentence for s47 and 20 are the same but the levels of blameworthiness and the seriousness of the offence differs greatly.
• 2015 report says there is no clear hierarchy of offences.
• A D who intends or foresees the risk of minor injury can be convicted of s18 if serious injury occurs when he intends to resist arrest. Does not seem fair compared to other offenders charged under the same section.

Question 34

How is the correspondence principle not present in the OAPA?

Answer 34

The principle states that the results which the D must intend or foresee should match the result which actually occur. In s20 the D may not intend to cause serious harm only some harm and in s47 they may not intend to cause any harm.

Question 35

Why is modern, simplified language needed in the OAPA?

Answer 35

S20 uses the word ‘maliciously’, the meaning of this word has changed over the years so it was hard to decipher the true meaning of it. The Law Commission recommended the word ‘reckless’.

In s20 the word ‘inflict’ is used, yet for s18 the word ‘cause’ is used. This led to debate as to whether a technical assault had to take place in s20. R v Burstow had to resolve this.

Question 36

How did the 1998 draft Bill attempt to reform the OAPA?

Answer 36

The Home Office issued a Consultation Document which included a draft Bill of four main offences:

Clause 1 - Intentional serious injury.
Clause 2 - Reckless serious injury.
Clause 3 - Intentional or reckless injury.
Clause 4 - Assault (combined assault and battery and made it an either or AR).

In each offence the level of injury and MR required is made clear. It also defined the word ‘injury’ making it clear that both physical and mental injury were included.

Question 37

How did the Law Commission Report of 2015 attempt to reform the OAPA?

Answer 37

It wanted the OAPA to be replaced by ‘comprehensive modern statute’ which:
- should provide a clear hierarchy of offences form most to least serious. The place of each offence should reflect harm caused, culpability of the D and max penalty should be in proportion.

• Each offence should provide a clear and accurate label for the conduct in question and should be defined in language that is easy to understand.
• Each ‘ingredient’ of an offence should be set out (AR, MR).
  It also recommended that the new statute should follow the recommendations of the 1998 draft Bill but added a few modifications.

Question 38

What does clause 1 of the Law Commission’s 2015 report state?

Answer 38

It would become the most serious offence (replacing s18). The word ‘wounding’ is not used and would only be included if the wound caused a serious injury. Max sentence would be life imprisonment.

Question 39

What does clause 2 of the Law Commissions 2015 report state?

Answer 39

It would replace s20. The normal principles of recklessness would apply so the D would only be guilty if he was aware, in the circumstances as he knew or believed them to be, that there was a risk of serious injury. The max sentence would be 7 years imprisonment (justified by the higher level of MR).

Question 40

What does clause 3 of the Law Commission’s 2015 report state?

Answer 40

It replaces s47. The D would be guilty if he intentionally or recklessly caused an injury to another person. The injury need not be serious. Max sentence would be 5 years imprisonment.

Question 41

What is also mentioned in the Law Commissions 2015 report about the clauses?

Answer 41

Injury would include both physical and mental injury, mental injury would have the same limits as the existing law (recognised psychiatric conditions) and disease would still be considered a physical injury.

Question 42

What is Aggravated assault mentioned in the Law Commission’s 2015 report?

Answer 42

It is a offence that could be used to cover low-level injuries such as superficial cuts, scratches, minor bruising, grazes and swellings. The CPS usually charge these cases as common assault not ABH so this offence recognises that Vs can feel aggrieved when their case is only charged as common assault. The MR would be the same as the current common assault but it would have a max sentence of 12 months imprisonment.

Question 43

What is Physical assault mentioned in the Law Commission’s 2015 report?

Answer 43

It would replace battery but would not be used for low-level injury as this would be covered in aggravated assault. It would be where there is unwanted and unjustifiable touching of the V, either direct physical contact between D and V or by D causing some object to come into contact with V. The MR would be the same as the current offence. It would carry a max sentence of 6 months imprisonment (same as current battery).

Question 44

What is Threatened assault mentioned in the Law Commission’s 2015 report?

Answer 44

Would replace the current assault. The MR would be the same and the max sentence would be 6 months (also the same).

Question 45

Describe the proposal of the offence: Causing serious harm intending to resist arrest.

Answer 45

This offence is currently in s18 but the 1998 draft Bill proposed a separate offence where D caused serious harm intending to resist arrest, prevent or terminate the lawful arrest or detention of himself or a third party. It was also thought that there should be a lower max penalty because MR is lower than for s18.

Question 46

Describe the proposal of the offence: Assault intending to resist arrest.

Answer 46

1998 draft Bill also included a lower level of assault where D intends to resist arrest, prevent or terminate the lawful arrest or detention of himself or a third party. This would be charged were no serious harm was caused. The proposed max sentence would be 2 years imprisonment. The 2015 report supports this proposal.

Question 47

What are the overall comments on the Law Commission’s 2015 Report (want did it fix/improve overall)?

Answer 47

• Coherent set of offences in clear hierarchy.
• No overlap/inconsistencies between the offences.
• AR and MR for offences are clearly laid out.
• Offences conform to the ‘correspondence principle’.
• Law strengthened.
• New offence aggravated assault would carry higher max penalty than common assault giving Vs greater protection.