Law-Non-fatal offences (A2)

Question 1

Where are the main non-fatal offences against the person set out?

Answer 1

In the Offences Against the Person Act 1861

Question 2

What are the main non-fatal offences against the person?

Answer 2

Assault (s39 Criminal Justice Act 1988), Battery (s39 Criminal Justice Act 1988), Assault occasioning actual bodily harm (s47 OAPA 1861), Malicious wounding or inflicting grievous bodily harm (s20 OAPA 1861), Wounding or causing grievous bodily harm with intent (s18 OAPA 1861)

Question 3

What is common assault?

Answer 3

Assault and battery

Question 4

What type of offences are assault and battery?

Answer 4

They are common law offences. There is no statutory definition for either assault or battery. However statue law recognises their existence, as both of these offences are charged under s39 Criminal Justice Act 1988 which sets out their maximum punishment

Question 5

What is the maximum punishment for common assault?

Answer 5

Six months’ imprisonment or a fine of £5,000, or both

Question 6

What is the difference between assault and battery?

Answer 6

The act involved is different. For assault there is no touch, only the fear of immediate, unlawful force. For battery there must be actual force. There are often situations though where there is both assault and battery

Question 7

What are other terms used for assault?

Answer 7

Technical assault or a psychic assault

Question 8

What are the actus reus elements of assault?

Answer 8

Act, apprehend immediate force, unlawfulness of the force

Question 9

What is the ‘act’ actus reus element of assault?

Answer 9

Assault requires some act or words. An omission is not sufficient. However, words are sufficient. These can be verbal or written. In Constanza the Court of Appeal held that letters could be an assault (defendant had written 800 letters and made a number of phone calls to the victim who interpreted the last two letters as clear threats-Court of Appeal said there was an assault as there was a ‘fear of violence at some time, not excluding the immediate future’. In Ireland it was also held that even silent phone calls can be an assault-depending on the facts of the case

Question 10

What is the ‘apprehend immediate force’ actus reus element of assault?

Answer 10

The act/words must cause victim to apprehend immediate force being used against them. No assault if it is obvious no force can be used against them, eg shouting a threat from a passing train

Question 11

What was decided in the case of Lamb?

Answer 11

That pointing an unloaded gun at someone who knows it is unloaded cannot be an assault. This is because the other person does not dear immediate force. However if the other person thought the gun was loaded then this could be an assault

Question 12

What is the ‘immediate’ element of assault?

Answer 12

Fear of immediate force is necessary; immediate does not mean instantaneous, but ‘imminent’, so an assault can be through a closed window, as in Smith v Chief Superintendent of Woking Police Station

Question 13

What happened in Smith v Chief Superintendent of Woking Police Station?

Answer 13

Defendant broken into a garden and looked through vicim’s bedroom window on ground floor at 11pm. Victim was terrified and thought he was about to enter the room. Although defendant was outside and no attack could be made at that immediate moment, court held victim was frightened by his conduct. The basis of the fear was she didn’t know what he was going to do next, but it was likely to be of a violent nature. Fear of what he might do next was sufficiently immediate for the purposes of the offence

Question 14

In what other case was the point that immediate does not mean instantaneous seen?

Answer 14

Ireland-defendant made several silent phone calls to three women. All of them suffered psychiatric illness as a result. He was convicted under s47 OAPA 1861. It is necessary to prove assault for this offence. House of Lords held silent phone calls could be assault, and pointed that a victim of the calls may fear the caller was about to arrive at their home, so could fear the possibility of immediate personal violence

Question 15

How is the case of Ireland relevant to modern times?

Answer 15

The use of mobile phones today makes it even more likely that such a caller could be just outside the victim’s house. The fear of immediate personal violence is a very real threat in such situations

Question 16

How can words prevent an act from being an assault?

Answer 16

Words indicating there will be no violence can prevent an assault. This principle comes from Tuberville v Savage where the defendant placed one hand on his sword and said, ‘if it were not assize time, I would not take such language from you’. It was held not to be assault because what he said showed he was not going to do anything

Question 17

What are some other examples of assault?

Answer 17

Fear of any unwanted touching is sufficient: the force or unlawful personal violence which is feared need not be serious. It can be raising a fist as though about to hit the victim, throwing a stone at the victim which just misses, pointing a loaded gun at someone within range, making a threat by saying ‘I am going to hit you’

Question 18

What is the ‘unlawfulness of the force’ element of assault?

Answer 18

The force which is threatened must be unlawful. If it is lawful, there is no offence of common assault

Question 19

What is the actus reus of battery?

Answer 19

It is the application of unlawful force to another person

Question 20

How is force explained for battery?

Answer 20

Force is a slightly misleading words as it can include the slightest touching, as shown by Collins v Wilcock, Wood (Fraser) v DPP, and Thomas

Question 21

What happened in the case of Collins v Wilcock?

Answer 21

Two police officers saw two women apparently soliciting for prostitution. They asked appellant to get in police car for questioning but she refused and walked away. She wasn’t known to the police so one officer walked after her to find her identity but she refused to speak and walked away. Officer took hold of her arm to stop her leaving but she became abusive and scratched the officer’s arm. She was convicted of assault a police officer in the execution of his duty. She appealed on the basis that the officer was unlawfully holding her as she wasn’t under arrest

Question 22

What was decided in the case of Collins v Wilcock?

Answer 22

The court held the officer had committed battery and the defendant was entitled to free herself. The court point out that touching a person to get their attention was acceptable provided that no greater degree of physical contact was used than was necessary, but that physical restraint was not

Question 23

What happened in the case of Wood (Fraser) v DPP?

Answer 23

Police received report that a man named Fraser had been disruptive in a public house and thrown an ashtray at another person, which had missed but caused the tray to smash. Three police went to the scene. They saw a man who fitted the description leave the public house. One officer took him by the arm to prevent him leaving and asked if he was Fraser, but he denied this and tried to pull away. Another officer then took his arm and he was charged with assaulting two officers while acting in the execution of their duty. Officer who first caught him said he had done this to detain him but wasn’t arresting him

Question 24

What was decided in the case of Wood (Fraser) v DPP?

Answer 24

It was held that as the officer had not arrested Wood before he struggled and assault the police, then thee was a technical assault (battery) by the police officers, meaning Wood was entitled to struggle and wasn’t guilty of any offence of assault against the police

Question 25

What happened in the case of Thomas?

Answer 25

Even touching the victim’s clothing can be sufficient to form a battery. The defendant touched the bottom of a woman’s skirt. The Court of Appeal said, obiter, ‘there could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him’

Question 26

How can battery be committed through a continuing act?

Answer 26

As in Fagan v Metropolitan Police Commissioner (car and police officer case)

Question 27

How can battery be committed through an indirect act?

Answer 27

In this situation the defendant causes force to be applied, even though he does not personally touch the victim, as in Martin, DPP v K, and Haystead v Chief Constable of Derbyshire

Question 28

What happened in the case of Martin?

Answer 28

Defendant placed an iron bar across the doorway of a theatre. He switched off the lights. In the panic which followed several of the audience were injured when they were trapped and unable to open the door. Martin was convicted of an offence under s20 OAPA 1861

Question 29

What happened in the case of DPP v K?

Answer 29

Defendant was 15 year old schoolboy who took sulphuric acid from science lesson without permission to try its reaction on toilet paper. When in the toilet he hear footsteps in the corridor, panicked and put the acid into a hot hand drier to hide it. Returned to class intending to remove the acid later. Before he could, another pupil used the drier and was sprayed by the acid. Defendant charged with ABH. Magistrates acquitted him as he hadn’t intended to hurt anyone. Prosecution appealed by way of case stated to QBD court which held common assault could be committed by an indirect act

Question 30

What happened in the case of Haystead v Chief Constable of Derbyshire?

Answer 30

Defendant caused a small child to fall to the floor by punching a woman holding the child. Defendant was found guilty because he was reckless as to whether or not his acts would injure the child-the conviction could also be justified by the principle of transferred malice

Question 31

Can battery occur due to an omission?

Answer 31

Criminal liability can arise by way of an omission, but only if the defendant is under a duty to act. This can arise out of a contract, relationship, or assumption of care for another. As the actus reus for battery is the application of unlawful force, it is difficult to think how examples could arise out of these duty situations, though an example may be where defendant has created a dangerous situation which may lead to force being applied to the victim (Miller)

Question 32

How can force be lawful?

Answer 32

If victim gives genuine consent. Also where used in self defence or prevention of crime if reasonable for the situation believed by the defendant. Also lawful in correction of a child by a parent (However in A v UK it is not lawful if it results in any injury)

Question 33

How can battery be used in self-defence or defence of another?

Answer 33

Where reasonable force is used to defend oneself (or another) against attack, then this is lawful. Eg Wood (Fraser) v DPP where defendant tried to pull away from police who were holding him, defendant’s use of force was lawful. This meant he was not guilty of any assault against the police as they had not legally detained him, so he was entitled to use reasonable force

Question 34

Can there be a battery without an assault?

Answer 34

It is possible. This can occur where the victim is unaware that unlawful force is about to be used on them, such as where the attacker comes up unseen behind the victim’s back. The first thing the victim knows is when he is struck-battery without assault

Question 35

What is the mens rea of assault?

Answer 35

The mens rea for an assault is either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused

Question 36

What is the mens rea of battery?

Answer 36

The mens rea for battery is either an intention to apply unlawful physical force to another or recklessness as to whether unlawful force is applied

Question 37

What is the test for recklessness for assault?

Answer 37

It is subjective-the defendant must realise there is a risk that his acts or words could cause another to fear unlawful personal violence

Question 38

What is the test for recklessness for battery?

Answer 38

It is subjective-the defendant must realise there is a risk that his act or omission could cause unlawful force to be applied to another

Question 39

What type of intent crime are assault and battery?

Answer 39

They are classed as offences of basic intent. This means that if the defendant is intoxicated when he does the relevant actus reus, he is considered as doing it recklessly. This was stated by the House of Lords in DPP v Makewski

Question 40

Why has the ruling in Majewski been criticised?

Answer 40

The point at which the drink or drugs is taken is a quite separate time to the point when the actus reus for the offence is committed. It is difficult to see how there is coincidence of the two. It is reasonable to say the defendant is reckless when he takes drinks or other intoxicating substances, but this doesn’t necessarily mean when he commits an assault/battery three or four hours later that he is reckless for the purposes of the offence. The decision can be viewed as a public policy decision

Question 41

What is assault occasioning actual bodily harm?

Answer 41

It is the lowest level in the 1861 Act, under s47

Question 42

What does s47 of the Offences Against the Person Act 1861 state?

Answer 42

It states the offence is triable wither way, and ‘whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable…to imprisonment for five years’. There is no definition of ‘assault’ or ‘actual bodily harm’, or any reference to level of mens rea required. For all these points it is necessary to look at case law

Question 43

What is the actus reus of section 47?

Answer 43

Necessary to prove assault or battery and that this caused actual bodily harm. This means there must be the actus reus of either assault or battery. Eg in Ireland the defendant was charged with s47 offence after committing an assault, though it is more usual for s47 to be charged when there has been a battery

Question 44

What is the difference between common assault and a s47 offence?

Answer 44

The difference is that the victim suffers actual bodily harm as a result of the assault or battery

Question 45

What cases help to define actual bodily harm?

Answer 45

Chan Fook, R(T) v DPP, DPP v Smith (Michael), and Burstown

Question 46

What was decided in Chan Fook?

Answer 46

It was held the words ‘actual bodily harm’ were ordinary words. Harm means injury, hurt or damage. Actual means there must be more than merely trivial hurt or injury. The harm must not be so trivial as to be effectively without significance

Question 47

What was decided in R(T) v DPP?

Answer 47

Loss of consciousness, even momentarily, was held to be actual bodily harm

Question 48

What was decided in DPP v Smith (Michael)?

Answer 48

Defendant cut off ex-girlfriend’s pony tail with kitchen scissors without consent. Divisional court held that cutting hair was ABH. Even though scientifically the hair above the surface of a person’s head is dead tissue, it remains part of the body and is intrinsic to each individual. For this reason the act could amount to an assault occasioning actual bodily harm

Question 49

What injuries count as actual bodily harm?

Answer 49

Bruising, grazes and scratches. Psychiatric injury is also classed as ‘actual bodily harm’. This was decided in 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 50

Was decided in Burstow?

Answer 50

The decision in Chan Fook was approved, where it was said that ‘bodily harm’ in ss18, 20 and 47 Offences against the Person Act 1861 must be interpreted so as to include recognisable psychiatric illness

Question 51

What is the mens rea of section 47?

Answer 51

The section in the Act makes no reference to mens rea, but as the essential element is common assault, the courts held mens rea for common assault is sufficient for mens rea of s47 offences. This means either intention or recklessness as to whether the victim fears or is subjected to unlawful force-this is the mens rea for assault or battery and there is no need for the defendant to intend or be reckless as to whether actual bodily harm is caused

Question 52

What is an example of where the defendant was reckless as to whether the victim feared unlawful force?

Answer 52

Roberts-the defendant was driving a car and made advances to the girl in the passenger seat and tried to take her coat off. She feared he was going to commit a more serious assault and jumped from the moving car (30mph). She was slightly injured because of this. He was found guilty of ABH even though he didn’t intend or realise risk of injury. HE intended to apply unlawful force when he touched her and tried to remove her coat, which satisfied mens rea for common assault and so he was guilty of an offence under s47

Question 53

What case confirmed the decision in Roberts?

Answer 53

The decision in Roberts was confirmed by the House of Lords in the combined appeals of Savage and Parmenter

Question 54

What happened in the case of Savage?

Answer 54

Woman in a pub threw beer over another woman but glass slipped from her hand and cut victim’s hand by the glass. Defendant said she only intended to throw the beer, she didn’t intend or realise the risk of injury. She was convicted of s20 offence but court of appeal quashed it and substituted it for s47. She appealed but the appeal was dismissed. She intended to throw beer over the woman so she intended to apply unlawful force which is sufficient for the mens rea of s47

Question 55

What does s 20 Offences Against the Person Act 1861 state?

Answer 55

“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”

Question 56

What type of offence is s20 OAPA 1861?

Answer 56

It is triable either way and the maximum sentence is five years, which is the same as s27 despite the fact that s20 is seen as a more serious offence and requires both a higher degree of injury and mens rea as to an injury

Question 57

What has to be proved for s20 OAPA 1861?

Answer 57

The defendant wounded; or inflicted grievous bodily harm, and that they did this intending some injury to be caused; or being reckless as to whether grievous bodily harm was inflicted

Question 58

What does the term ‘wound’ mean?

Answer 58

It means a cut or a break in the continuity of the whole skin. A cut of internal skin, such as in the cheek, is sufficient, but internal bleeding where is no cur of the skin is not sufficient (as seen in JCC v Eisenhower). A broken bone is not considered a wound unless the skin is broken as well (shown by Wood)

Question 59

What happened in the case of JCC v Eisenhower?

Answer 59

Victim was hit in the eye by a shotgun pellet. This did not penetrate the eye but did cause severe bleeding under the surface. As there was no cut, it was held that this was not a wound. The cut must be of the whole skin, so that a scratch is not considered a wound

Question 60

What happened in the case of Wood?

Answer 60

Victim’s collar bone was broken, but as the skin was intact it was held there was no wound

Question 61

What cases define grievous bodily harm?

Answer 61

DPP v Smith, Saunders, Bollom, Burstow, and Dica

Question 62

What was decided in DPP v Smith?

Answer 62

It was held that grievous bodily harm means ‘really serious harm’. The harm doesn’t have to be life threatening

Question 63

What was decided in Saunders?

Answer 63

It was held that it was permissible to direct a jury that there need to be ‘serious harm’ and not include the word ‘really’

Question 64

What was decided in Bollom?

Answer 64

It was held that the severity of the injuries should be assessed according to the victim’s age and health

Question 65

What happened in the case of Bollom?

Answer 65

A 17 month old child had bruising to her abdomen, both arms and left leg. Defendant was convicted of causing GBH. Court of appeal quashed the conviction and substituted a conviction for ABH. However the court stated that bruising could amount to GBH. Bruising of this severity would be less serious to an adult in full health than on a very young child

Question 66

What happened in Burstow?

Answer 66

The victim of a stalker suffered a severe depressive illness as a result of the stalker’s conduct, so it was decided that serious psychiatric injury can be GBH

Question 67

What happened in the case of Dica?

Answer 67

There was the first ever confiction for causing GBH through infecting the victims with HIV (biological GBH)

Question 68

What does the term ‘inflict’ mean?

Answer 68

Originally this was taken as meaning there had to be a technical assault or battery. Even so it allowed the section to be interpreted quite widely, as shown in Lewis

Question 69

What happened in the case of Lewis?

Answer 69

Defendant shouted threats at his wife through a closed door in a second floor flat and tried to break his way through the door. The wife was so frightened she jumped from the window and broke both legs. Lewis was convicted of a s20 offence. The threats could be considered as a technical assault

Question 70

What was decided about the term ‘inflict’ in the case of Burstow?

Answer 70

It was decided that ‘inflict’ doesn’t require a technical assault or battery. This means it need only be shown that the defendant’s actions have led to consequence of victim suffering GBH. The decision also means there now appears to be little, if any, difference in the actus reus of offences under s20 and s18 which uses the word cause. In fact, in Burstow Lord Hope said that for all practical purposes there was no difference between the words

Question 71

What word is used for the mens rea of s20?

Answer 71

The word used in this section is ‘maliciously’

Question 72

What was decided in Cunningham?

Answer 72

Held that ‘maliciously’ did not require any illwill towards the person injured. It simply meant either, an intention to do the particular kind of harm that was in fact done; or recklessness as to whether such harm should occur or not (i.e. the accused had foreseen that the particular kind of harm might be done, and yet gone on to take the risk of it

Question 73

What happened in the case of Cunningham?

Answer 73

Defendant tore a gas meter from the wall of empty house to steal money in it. Caused gas to seep into house next door where a woman was affected by it. Defendant not guilty of maliciously administering a noxious thing as he didn’t realise the risk of gas escaping into the next door house

Question 74

What case confirmed Cunningham?

Answer 74

In Parmenter, the House of Lords confirmed that the Cunningham meaning of recklessness applies to all offences in which the statutory definition uses the word ‘maliciously’

Question 75

What is the overall mens rea of s20?

Answer 75

Intent to cause another person some harm, or subjective recklessness as to whether another person suffered some harm. It isn’t necessary to prove intention of serious harm or reckless about whether serious harm was caused. This means there is a difference between level of injury for actus reus of s20 and level for mens rea of s20 which only requires intention or recklessness as to some harm

Question 76

What was decided in the case of Parmenter?

Answer 76

The House of Lords decided that, although the actus reus of s20 requires a wound or GVH, there is no need for the defendant to foresee this level of serious injury

Question 77

What happened in the case of Parmenter?

Answer 77

Defendant injured his three month old baby when he threw them in the air and caught them. Defendant often did this with slightly older children and didn’t realise there was a risk of injury. He was convicted under s20. Conviction was quashed as there was no evidence he foresaw any injury. They did, however, substitute a conviction for s47

Question 78

What is s18 OAPA 1861?

Answer 78

It is considered much more serious than s20 (seen by difference in maximum punishment which for s20 is five years, but for s18 is life). Also s20 is triable either way whereas s18 is an indictable offence

Question 79

What is the definition of s18 in the OAPA 1861?

Answer 79

“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”

Question 80

What are the ways that section 18 can be committed?

Answer 80

Wounding (same meaning as s20), or causing grievous bodily harm

Question 81

What does ‘cause’ mean, for the actus reus of s18?

Answer 81

It is very wide so that it is only necessary to prove that the defendant’s act was a substantial cause of the wound or grievous bodily harm

Question 82

What is the mens rea for s18?

Answer 82

It is a specific intent offence. The defendant must be proved to have intended to: do some grievous bodily harm; or resist or prevent the lawful apprehension or detainer of any person

Question 83

What was stated in the case of Taylor?

Answer 83

That an intention to wound is not enough for the mens rea of s18, there has to be intention of serious harm (GBH)

Question 84

What does ‘maliciously’ mean for s18?

Answer 84

The word ‘maliciously’ appears in s18 but it has been held that this adds nothing to the mens rea of this section where grievous bodily harm is intended. The important point is that s18 is a specific intent crime. Intention must be proved; recklessness is not enough for the mens rea of s18

Question 85

When does the issue of intention occur with s18?

Answer 85

There is usually no problem proving intention, but some situations cause problems where the defendant’s aim or purpose is something quite different but in the course of carrying out that purpose someone is seriously injured-and so foresight of consequences is important here

Question 86

Where is the law on foresight of consequences stated?

Answer 86

In a series of cases on murder, but they apply to s18. The first point was decided in Moloney and is that foresight of consequences is not intention; it is only evidence from which intention can be inferred or found

Question 87

What was stated in the cases of Nedrick and Woolin which followed Moloney?

Answer 87

Intention cannot be found unless the harm caused was a virtual certainty as a result of the defendant’s actions and the defendant realised this was so

Question 88

What is resisting or preventing arrest?

Answer 88

Where defendant is trying to resist or present arrest or detention, then the level of intention regarding the injury is lower. The prosecution must prove that he had specific intention to resist or prevent attest, but so far as the injury they need only prove that he was reckless as to whether his actions would cause a wound or injury. This was decided in Morrison

Question 89

What happened in the case of Morrison?

Answer 89

Police officer seized hold of defendant and told him he was arresting him. He dived through a window, dragging her with him as far as the window so her face was cut badly by the glass. Court of Appeal held as the word ‘maliciously’ is used in respect of this part of the section, it must have the same meaning as in Cunningham. This means the prosecution must prove defendant either intended injury or realised there was a risk of injury and took that risk

Question 90

How is it decided what offence the defendant should be charged with?

Answer 90

By looking at the type of injury. The Crown Prosecution Service has guidelines (CPS Charging Guidelines) about what offence should normally be charged for certain types of injury. These are only guidelines though and they do not always match the law accurately. This is because they are intended to ensure convictions and make efficient use of resources

Question 91

What injuries are stated by the CPS charging guidelines for actual bodily harm (s47)?

Answer 91

Loss/breaking of tooth/teeth, temporary loss of sensory functions (may include loss of consciousness), extensive/multiple bruising, displaced broken nose, minor fractions, minor but not superficial cuts of a sort probably requiring medical treatment (eg stitches), psychiatric injury more than mere emotions such as fear/distress/panic. However, according to decided cases, some of these injuries are more serious than ABH such as a cut requiring stitches, or extensive bruising to a child, in the case of Bollom

Question 92

What injuries are stated by the CPS charging guidelines for grievous bodily harm?

Answer 92

They stress GBH means serious bodily harm and is for jury to decide whether the harm is serious, however examples of what usually amounts to serious harm include: injury resulting in permanent disability/permanent loss of sensory function, injury which results in more than minor permanent visible disfigurement, broken/displaced limbs/bones including fractured skull, compound fractures/broken cheek bone/jaw/bibs etc, injuries causing substantial loss of blood usually necessitating a transfusion, injuries resulting in lengthy treatment/incapacity, and psychiatric injury

Question 93

Why is the law on the non-fatal offences in need of reform?

Answer 93

Recommendations have been made for reform by both the Criminal Law Revision Committee and the Law Commission. The Law Commission point out three main problems with OAPA 1861: it uses complicated, obscure and old-fashioned language eg ‘maliciously’ and ‘grievous’. The structure of the Act is complicated. Non-lawyers find the Act completely unintelligible

Question 94

How have some of the problems of the OAPA 1861 been resolved already without reform?

Answer 94

By judges in case decisions. Eg there was considerable debate as to whether the word ‘inflict’ in s20 meant a technical assault had to take place. This was resolved by case of Burstow in which the House of Lords ruled it did not. Also the courts have extended meaning of ‘bodily harm’ to include injury to mental health so defendants causing such injury can also be convicted

Question 95

What is the problem of inconsistency between offences?

Answer 95

There are inconsistencies in the Act, especially with regard to mens rea required for each offence. In particular, s47 has same mens rea as for assault/battery. It does not require defendant to intend or even realise there is a risk of injury

Question 96

How is the inconsistency between offences shown by s20 and s47?

Answer 96

It is unjust that a person who causes a small cut can be charged with the more serious offence of s20 instead of ‘occasioning actual bodily harm’ under s47. This is because s20 refers to ‘wound or grievous bodily harm’. Yet clearly there are different levels of wound and many of them do not equate to grievous bodily harm

Question 97

How is the inconsistency between offences shown by s18 and resisting arrest?

Answer 97

Inconsistent that a defendant who only intends/foresees risk of minor injury can be convicted of very serious offence of s18 if serious injury then occurs when he intends to resist arrest. This is the effect of the decision in Morrison. Is it right that the fact that the defendant intends to resist arrest makes him liable for the same offence as someone who intended to cause very serious injury? The situation can be even more unfair as someone who intends to resist arrest can be charged with s19 even though they only caused a small wound tot he victim. This means such a defendant can be guilty of same offence as defendant who intended and did cause very severe injuries

Question 98

How are the inconsistencies in the OAPA 1861 also reflected in sentencing?

Answer 98

By the maximum sentences for each level of offence. Assault and battery have maximum 6months imprisonment. S47 has maximum 5 years even though the mens rea is the same as for common assault. S20 also has a maximum of five years despite mens rea and level of injury being much more serious for s20

Question 99

What is the modern understanding of ‘bodily harm’?

Answer 99

When the Act was passed (nearly 150 years ago) medical knowledge was comparatively limited and psychiatric illness was not understood. Improvements in medical knowledge means we now know it is possible to cause psychiatric illness through putting someone in fear

Question 100

How has the modern understanding of ‘bodily harm’ been reflected in the law?

Answer 100

Judges had to develop the law in cases such as Burstow and Ireland to match modern knowledge/understanding/ It is only because of judicial development that psychiatric illness is now included. If judges had not included this, then the law would have failed to protect victims. However, it would be much more satisfactory if the law was re-written and made clearer

Question 101

What is another area of the OAPA 1861 where judges have had to adapt the law to modern knowledge?

Answer 101

In the transmission of disease. Defendant can now be liable for infecting others with diseases such as HIV (biological GBH). However, it would be more satisfactory if the law were re-written to cover such situations expressly

Question 102

What are the Law Commission’s proposals for reform of the OAPA 1861?

Answer 102

Law Commission proposed a new law to take its place but the Government did nothing until five years later when the Home Office issued a Consultation Document ‘Violence: Reforming the Offences Against the Person Act 1861’. This included a draft Bill which set out four main offences intended to replaced s18, s20, s47, assault and battery

Question 103

What are the four main offences in the draft Bill?

Answer 103

1.Intentional serious injury where a person would be guilty if he intentionally caused serious injury to another. 2.Reckless serious injury where a person would be guilty if he recklessly caused serious injury to another. 3.Intentional or reckless injury where a person would be guilty if he intentionally or recklessly cause injury to another. 4.Assault where a person would be guilty if he intentionally or recklessly (a) applied force to or caused an impact on the body of another, or (b) caused the other to believe that any such force or impact is imminent

Question 104

How are the four offences in the draft Bill clearer than the current offences?

Answer 104

The level of injury and required mens rea are made clear by the wording. It also defines the word ‘injury’ making it clear that physical and mental injury are included. The word ‘wounding’ is not used so a serious cut would be considered serious injury, while a small cut would be merely an injury-clearing up most problems of present law

Question 105

How did the draft Bill also affect sentencing?

Answer 105

It set out a new sentencing framework that matched the blameworthiness of the offence to the maximum sentence available in a more structured and sensible way than the current system

Question 106

How does the Law Commission, in the draft Bill, define physical and mental injury?

Answer 106

Physical injury was defined as including pain, unconsciousness and any other impairment of a person’s physical health. Mental injury was defined as any impairment of a person’s mental health

Question 107

What was also included as physical injury in the draft Bill?

Answer 107

Disease was also included as a physical injury for the purpose of the most serious offence. However, this meant it would be almost impossible to convict a defendant of infecting another person with HIV as the proposed most serious offence can only be committed where defendant intentionally caused serious injury. This would mean convictions for recklessly transmitting HIV (as in R v Dica) would not be possible

Question 108

What is the major problem with the draft Bill?

Answer 108

Although it was sent out for consultation in 1998, the Government did nothing more, and the law still remains in an unsatisfactory state