Introduction

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.

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.

Language

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.

• ‘Maliciously’

  The word maliciously is used in both S20 and S18 but is not defined in the OAPA 1861.

  Maliciously has been interpreted to mean recklessly (Cunningham (1957)) which is clearly an extension of its ordinary modern meaning, which would simply imply bad motive.

  Under S20, maliciously is used to infer mens rea but under S18 it is unnecessary as mens rea is defined as with intent.

• ‘Assault’

  As assault and battery are elements of many offences against the person their definition is particularly important but remains unclear.

  Confusion surrounds the precise meaning of assault and is compounded by the use of the term common assault, which is commonly agreed can refer to the offences of assault or battery.

  The word assault has 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 battery but S40 refers to a common assault.

  Assault has not been clearly defined in legislation, although the length of sentence and offence classification for common assault and battery was set out in S39 of CJA 1998.

• ‘Inflict’ and ‘cause’

  S20 defines the offence by the phrase inflict any grievous bodily harm compared to S18 which states cause any grievous bodily harm.

  Originally it was understood that inflict had a narrower meaning than cause and required an assault or battery. However, it has now been established that neither are required and inflict and cause have 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.

• ‘Wounding’

  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 wound.

  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.

Inconsistency

• Offences

  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.

• Mens rea

  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.

• Sentencing

  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....

Outdated

• Social

  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.

• Technological

  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.

• Medical

  The phrase bodily harm is 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