Law reform - non fatal offences against person
The law relating to non-fatal offences against the person is to be found in the Offences against the Person Act 1861.
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The law relating to non-fatal offences against the person is to be found in the Offences against the Person Act 1861. In order to consider whether the proposals for the reform of this area of the law are necessary, it is worth examining the present law along with some of the practical difficulties which arise, and then evaluating the proposals themselves.
An assault (sometimes referred to as common assault) is defined as intentionally or recklessly causing the victim to apprehend immediate and unlawful violence. There is no need for the use of force or contact and examples might include such conduct as shaking a fist or brandishing a knife or other weapon. In the past there have been doubts whether words alone would be sufficient. However in Constanza 1997 the Court of Appeal clearly held that an assault could be committed by the use of words alone. The case of Ireland 1998 is also helpful. This case involved the terrorising of women by silent phone calls. The House of Lords decided that this would also be enough to amount to an assault in certain circumstances.
As regards the immediacy of the threat, the courts have taken a broad interpretation of the word ‘immediate’ in order to be fair to the victim. This is illustrated in the case of Smith v Chief Superintendent of Woking Police Station (1983). This case involved an individual who was discovered standing next to a window outside the victim’s apartment and although there was no obvious means of entry this apparent threat was taken to be sufficient for the purposes of establishing an offence as it produced fear and anxiety in the mind of the victim.
Whilst the public may be confused from time to time as to whether an offence is an assault or a battery, they are two distinct crimes even though the word 'assault' is used when referring to both types of offence. In reality battery amounts to the intentional or reckless application of unlawful physical force on another. The least touching of another is sufficient Cole v Turner 1704 and that every persons' body is inviolate according to LJ Goff in Collins v Willcox 1984.
Doubts have been expressed as to whether assault and battery remained common law offences despite the fact that they were classified as indictable offences under Section 47 OAP 1861. Section 39 of the Criminal Justice Act 1888 stipulates that assault and battery are classified as summary offences. The Divisional Court in DPP v Taylor and DPP v Little 1992 has stated that these offences are to be treated as statutory offences, even though the original provision in Section 47 has now been repealed, and that a prosecution should be brought under Section 39 of the Criminal Justice Act 1988.
Whilst it seems settled now there was some doubt as to which form of recklessness was required for the mens rea of assault and battery. The question was which form was to be applied as there was two types of recklessness – Cunningham recklessness (i.e. subjective) and Caldwell recklessness (objective). The Court of Appeal preferred the subjective form in R v Spratt (1991) and this was confirmed in R v Parmenter (1991). Caldwell recklessness however was applied in cases of criminal damage and this remained the situation until 2003 when in R v G and another the House of Lords ruled that Cunningham recklessness (i.e. subjective recklessness applied to criminal damage as well. It is imprtant to appreciate that each form of recklessness required a careful and wordy direction to the jury on the form of recklessness that was being applied to the case.
As already noted in Constanza words alone can now form the basis of assault (but not necessarily a battery as physical force is required) and even silence since Ireland can amount to an assault but not a battery and that the causing of psychiatric injury by silent phone calls was not enough for a battery.
An assault occasioning actual bodily harm is a more serious or aggravated assault. Actual bodily harm is also an offence developed at common law and section 47 of the OAP 1861 describes the penalty. The maximum penalty is five years if found guilty on an Indictment.
There must be an assault or battery before the offence can arise and this must be established before considering whether the victim has suffered harm.
The cases of Miller 1954 and Chan-Fook 1994 are both helpful when considering what amounts to actual bodily harm.
In Miller 1954, the term was taken to mean 'any hurt or injury calculated to interfere with the health or comfort of the victim'.
In Chan-Fook 1994, the Court of Appeal took the view that the word 'Actual' means more than trivial. The word 'harm' amounts to injury and the words 'bodily harm' includes psychiatric injury.
However there are limits and it has been decided that the words do not extend to cover emotions such as distress, fear or panic.
The actus reus of actual bodily harm is relatively straightforward. It requires an assault causing harm which is significant and not trivial.
The mens rea is the same as for an assault or a battery. The prosecution only need to establish that the accused intended or was reckless about putting the victim in fear of immediate physical violence, or intended or was reckless about unlawful conduct. The law does not require the prosecution to go further and show that the accused intended or was reckless about causing actual bodily harm (Roberts 1971, and Savage and Parmeter 1992).
We now turn to malicious wounding or grievous bodily harm under Section 20 OAP 1861. This offence arises when someone unlawfully and maliciously wounds or inflicts any grievous harm either with or without a weapon or instrument. The maximum punishment for this offence is the same as for actual bodily harm (5 years imprisonment). This is surprising to many as most people consider this offence to be more serious and at least one reason why the law in this area needs modernising and to be brought up to date.
There are two aspects to this offence, the malicious wounding or the malicious infliction of grievous bodily harm. The importance of this distinction is illustrated by the case of JJ(a C minor) v Eisenhower 1984. In this case pellets from the defendant’s air gun caused an eye injury to the victim. This caused bruising and rupturing of internal blood vessels but there was no breaking of the skin. The Divisional Court found that wounding had occurred. Wounding amounted to a ‘break in the continuity of the whole skin’. This does not mean that such an injury needs to be serious. Many have argued that this interpretation of malicious wounding in this way is inconsistent with the higher level of harm required i.e. ‘grievous bodily harm’ – meaning 'serious harm' (DPP v Smith 1961; Saunders 1985).
Again this raises the issue that the law in this area is unnecessarily complicated and needs to be simplified by modernising and reforming.
The actus reus required under Section 20 consists of an unlawful wounding or unlawful infliction of grievous bodily harm. The word ‘inflict’has received the attention of the courts. In R v Dica (2004) and R v Konzani (2005) where the appellants had received an HIV positive diagnosis and had been advised by health professionals of the importance of desisting from unprotected sex and of disclosing their HIV status to sexual partners, the Court of Appeal overruled Clarence (1888) as being of no relevance in today's society and took the view that Section 20 criminal liability could arise in such circumstances even though there had not been any direct assault. Dica was later convicted at a retrial of grievous bodily harm. In Konzani the conviction on appeal was upheld on the basis that there had not been any willing and informed consent. This is yet another area of where the needs of society have moved on but that statutory provision has not and has to rely upon a piecemeal common law approach.
Turning now to malicious wounding or grievous bodily harm under Section 18, which many recognise as being one of the more serious assaults. At first sight there seems to be a striking resemblance between the two offences under Section 20 and offences under Section 18 but there are important differences. The wording ‘wounding’ and ‘grievous bodily harm’ have similar meanings and we have already noted the apparent inconsistency in the law in this area in terms of the level of harm required.
The maximum sentence under Section 18 is life imprisonment.
The actus reus happens where the defendant wounds or causes grievous bodily harm to the victim by any means. On the face of it, causes widens the actus reus – more so than Section 20 where the courts have at times had to give consideration to the meaning of the word 'inflicts'
The mens rea consists of the defendant intending to cause grievous bodily harm or intending to resist arrest or prevent an arrest.
Intention is to be applied in a similar manner as for murder. The courts have spent time considering what amounts to intention and the prosecution must show (in the absence of evidence of direct intention) that the defendant foresaw as a virtual certainty the consequence of his actions and that he realised the risk of serious harm (Woollin (1999)).
The problems with language with this piece of legislation are well documented and this area of the law has been reviewed by the Law Commission. As long ago as 1993 the Commission reported in detail and put forward draft legislation with the intention of modernising the law and incorporating practical suggestions for improvement.
The Law Commission saved its most severe criticisms for the Offences Against the Person Act 1861 in its report Legislating the Criminal Code Offences Against the Person and General Principles in November 1993.
In particular the structure of Sections 18, 20 and 47 were to came in for specific mention when the Commission were explaining the need for reform saying “the language of the Act is so complicated, obscure and old-fashioned; and the structure of the three sections (18,20 and 47) is so complicated and technical; that mistakes by lawyers and complete unintelligibility to the layman were eventually bound to result”.
The Law Commission put forward proposals which included:
the replacement of the 1861 Act by more comprehensible language;
that any reform such clear up many of inconsistencies so that juries and magistrates can properly use the definitions to decide cases. The Commission here referred to the unfortunate string of cases which included Mowatt (1968) in which the Court of Appeal suggested that in section 18 the word”maliciously” added nothing; Savage and Parmenter (1992) in which the House of Lords confirmed that the mens rea comprised of the word “maliciously”;
the reforms should put the law on the footing of statute law thus avoiding the inconsistency and complexity of the case law (common law) not to mention the time taken at trial to make sure no mistakes were made; the Law Commission put as their main argument for this was that it was wholly unsatisfactory that it was felt necessary for the terms of the Act to be translated, or actually replaced by more comprehensible language;
that it cannot be right that parts of a statute are so misleading that the sections cannot be safely be mentioned to the jury;
that such an important area of law intended to deal with violent offences should not be left to the common law because despite the work done by the judiciary it still rested upon such an outdated and unsatisfactory statute;
that the offences of assault and battery, actual bodily harm (S47), grievous bodily harm (S20), and grievous bodily harm with intent (S18) be replaced as follows:
Assault (one new offence)
Intentional or reckless injury replacing actual bodily harm
Reckless serious injury would replace Section 20 OAPA but with a maximum sentence of 7 years to reflect its real seriousness
Intentional serious injury would replace section 18 OAPA and the sentence would remain as life imprisonment.
The matter of consent would be incorporated into any definitions and intention and recklessness would form the appropriate mens rea except in the case of Section 18 which would be replaced by an offence of intentional serious injury.
These reforms remain to be implemented and are long overdue and would probably be welcomed by the various authorities involved – from law enforcement to the judiciary. They represent a considerable amount of work by the Law Commission and include detailed provisions and even a draft Bill.
The Law Commission have generally been supported by the senior judges and as recent as 2015 issued a scoping report following extensive consultations. The Commission claim that there is broad agreement that reform of the law is necessary.
The OAPA is in much use with over 26,000 prosecutions in cases of violence every year. These are not minor offences but relate to forms of behaviour which are completely unacceptable in today’s society yet success is dependent upon an archaic Act which is not only out of date and obsolete in some areas and does not deal with new ways of offending according to the former Lord Chief Justice, the Rt Hon the Lord Thomas.
The present archaic provisions in the eyes of the public provide too many opportunities for perpetrators to either escape liability or to plead to the less serious offence of common assault or section 47. Victims and members of the public need to feel that the law works for them and they are confident about the protection afforded. The Law Commission propose to deal with this issue with a new summary offence of aggravated assault which accurately labels the perpetrator's actions in causing injury so that the expensive option of Crown court trial for S47 offences can be avoided.
The present provisions mean that victims may feel that they have to justify the extent of their injuries in order for charges to be brought and one wonders whether this is right. At times victims may feel that instead of concentrating upon the harm and trauma that these types of offences can cause the provisions encourage the use of court time focusing upon the state of mind of the accused and reasons why he or she should not be convicted.
The present OAPA with all its faults may use up time including legal argument and lengthy directions to the jury. This is costly and may be counterproductive as on the face of it is contrary to modern trends of doing away with the need for lengthy comprehensive directions in criminal cases. In the case of theft for example it is generally regarded that the Theft Act 1968 is a good example of a modern statute meeting the needs of society today.
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The OAPA is Victorian legislation which contains a diverse set of offences and was never intended to be a consistent set of rules. As a result, there is no uniformity of language between the sections, and key words and phrases are not defined in the Act.
The Act uses complicated and obscure language such as 'maliciously' and 'grievous' which is difficult for non-lawyers to understand. There is no statutory definition of assault or battery. The terminology is also not the same throughout the Act ~ what difference is there between 'causing', 'inflicting', or 'occasioning' harm?
The Act contains offences which are no longer necessary in the 21st century, such as S17 "impeding a person endeavouring to save himself from a shipwreck", and S39 "assaults with intent to obstruct the sale of grain".
The law is outdated as the Act focuses on 'bodily harm' but does not mention psychological injury. Lord Steyn in R v Ireland commented that "the Victorian legislator (...) would not have in mind psychiatric illness", but mental illnesses are now better known and the law needs to reflect this.
The courts need to be creative in relation to stalking (R v Cox) and biological GBH (R v Dica).