Topic 5
Topic 5
Non-fatal
offences
Topic 5
Non-fatal offences: assault
Assault
Topic 5
Non-fatal offences: assault
Definition
Assault is not defined in an Act of Parliament, as it is a
common-law offence.
Section 39 of the Criminal Justice Act 1988 provides that
assault is a summary offence with a maximum sentence on
conviction of 6 months’ imprisonment or a fine.
R v Venna (1976) provided the accepted definition of assault
as ‘the intentional or reckless causing of an apprehension of
immediate unlawful personal violence’.
Topic 5
Non-fatal offences: assault
Actus reus
• The actus reus of assault is any act that makes the victim fear
that unlawful force is about to be used against him or her. No
force need actually be applied, and actions such as raising a fist,
pointing a gun or brandishing a sword will be sufficient.
• Words can amount to an assault (R v Wilson, 1955), as can a
silent telephone call.
• There is no assault if it is obvious to the victim that the
defendant cannot or will not carry out his or her threat of
violence.
• The victim must fear immediate threat of harm, not at some
time in the future.
Topic 5
Non-fatal offences: assault
Mens rea
The mens rea of assault is either:
• intention or
• Cunningham recklessness
The defendant must have either intended to cause the victim
to fear the infliction of immediate and unlawful force, or must
have seen the risk that such fear would be created.
Topic 5
Non-fatal offences: battery
Battery
Topic 5
Non-fatal offences: battery
Introduction
Section 39 of the Criminal Justice Act 1988 provides
that battery is a summary offence, punishable by up to 6
months’ imprisonment or a fine. Like assault, it is a
common-law offence.
Topic 5
Non-fatal offences: battery
Actus reus (1)
The actus reus of battery consists of the application of
unlawful force on another. Any unlawful physical contact
can amount to a battery. There is no need to prove harm
or pain – a mere touch can be sufficient.
Battery can be direct or indirect. Direct battery is force
applied directly by one person to another, e.g. a slap.
Indirect battery can be applied using an implement or
vehicle.
Topic 5
Non-fatal offences: battery
Actus reus (2)
The victim need not be aware that he or she is about to be
struck. Therefore, if someone is struck from behind this
will still constitute battery, and he or she need not have
seen it coming.
There can be a battery when there is no direct contact
with the victim’s body – touching his or her clothing may
be enough to constitute this offence (R v Thomas, 1985).
An omission can amount to the actus reus of battery (R v
Santana-Bermudez, 2003).
Topic 5
Non-fatal offences: battery
Mens rea
The mens rea of battery is intention or Cunningham
recklessness, i.e. intention or recklessness as to the
application of unlawful force.
Topic 5
Non-fatal offences: battery
Joint Charging Standards
Often, the offences of assault and battery occur at the
same time. This is known as common assault. The police
and Crown Prosecution Service have agreed the Joint
Charging Standards, which set out the types of injury that
will be regarded as common assault. Such injuries include:
• minor bruising
• grazing
• small cuts
• swelling
Topic 5
Non-fatal offences: actual bodily harm
Actual bodily harm
Topic 5
Non-fatal offences: actual bodily harm
Definition
Section 47 of the Offences Against the Person Act
1861 states that it is an offence to commit ‘any assault
occasioning actual bodily harm’. The offence is triable
either way and carries a maximum sentence of 5 years’
imprisonment.
Topic 5
Non-fatal offences: actual bodily harm
Actus reus
The actus reus of ABH has been interpreted as assault or battery
that causes ‘actual bodily harm’. This has been given the wide
definition of ‘any hurt or injury calculated to interfere with the
health or comfort of the victim’ (R v Miller, 1954). Thus, ABH
can occur where discomfort to the person is caused.
However, in R v Chan-Fook (1994), Lord Justice Hobhouse said
in the Court of Appeal that ‘the word “actual” indicates that the
injury (although there is no need for it to be permanent) should
not be so trivial as to be wholly insignificant’.
Topic 5
Non-fatal offences: actual bodily harm
Mens rea
The mens rea for ABH is the same as for assault and
battery. No additional mens rea is required (R v Roberts,
1978, and R v Savage, 1991).
Topic 5
Non-fatal offences: actual bodily harm
Joint Charging Standards
The police and Crown Prosecution Service have agreed the
Joint Charging Standards, which set out the types of injury
that will be regarded as ABH. Such injuries include:
• minor fractures
• severe bruising and small cuts that require stitches
• loss of consciousness
• psychiatric injury
Topic 5
Non-fatal offences: grievous bodily harm (s.20)
Grievous bodily
harm (s.20)
Topic 5
Non-fatal offences: grievous bodily harm (s.20)
Definition
According to s.20 of the Offences Against the Person
Act 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 of an offence triable either way and being convicted
thereof shall be liable to imprisonment for 5 years.’
Topic 5
Non-fatal offences: grievous bodily harm (s.20)
Actus reus
The actus reus of the s.20 offence is unlawfully and
maliciously wounding or inflicting grievous bodily harm.
The word ‘inflict’ has been interpreted to mean that the
grievous bodily harm must be caused by the direct
application of force, e.g. hitting, kicking or stabbing, but
not digging a hole for the victim to fall into. However, in
practice the courts have given a fairly wide interpretation
as to when force is direct.
Topic 5
Non-fatal offences: grievous bodily harm (s.20)
Mens rea
The mens rea of s.20 GBH is described by the word
‘maliciously’. In R v Cunningham (1957), it was stated that
for the purposes of the 1861 Act, ‘maliciously’ meant
‘intentionally or recklessly’.
There is no need to intend GBH or wounding, or to be
reckless as to whether GBH or wounding might be caused.
The defendant needs only to intend or be reckless that his
or her actions could cause some physical damage.
Topic 5
Non-fatal offences: grievous bodily harm (s.18)
Grievous bodily
harm (s.18)
Topic 5
Non-fatal offences: grievous bodily harm (s.18)
Definition
Section 18 of the Offences Against the Person Act
1861 states that:
‘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 triable only on indictment, and being convicted
thereof shall be liable to imprisonment for life.’
Topic 5
Non-fatal offences: grievous bodily harm (s.18)
Actus reus
The actus reus for s.18 is similar to that for s.20 and
requires proof of either GBH or wounding. The actus reus
of wounding and the actus reus of GBH have the same
meaning as under s.20.
Topic 5
Non-fatal offences: grievous bodily harm (s.18)
Mens rea
To satisfy the mens rea, the prosecution must prove
intention to cause GBH or intention to avoid arrest. The
crucial difference between s.20 and s.18 GBH is in the
mens rea; while recklessness can be sufficient for s.20,
intention is always required for s.18.
Topic 5
Non-fatal offences: evaluation
Evaluation
Topic 5
Non-fatal offences: evaluation
Evaluation
The non-fatal offences have been subject to much criticism
over the years:
• The wording of the statutory defences is inconsistent and
old-fashioned.
• Assault and battery are still common-law offences.
• The sentencing of the offences is inconsistent.
Topic 5
Non-fatal offences: evaluation
Wording
Many of the words used to define non-fatal offences have been
criticised as being out of date and ambiguous. For example:
• The use of the term ‘serious assault’ refers to grievous bodily
harm, rather than a fear of unlawful force as it legally means.
• Battery only requires the slightest touch by the defendant.
However, the modern use of the word suggests that there is a much
greater level of harm.
• Section 18 uses the words to ‘cause’ GBH, s.20 uses the words to
‘inflict’ GBH and s.47 uses the words to ‘occasion’ GBH. All of these
words have required the court to interpret them as meaning ‘cause’.
Topic 5
Non-fatal offences: evaluation
Sentencing
Assault and battery are summary offences, punishable by 6 months’
imprisonment. Such trials can be dealt with at the Magistrates’ Court,
and the expense of a Crown Court trial is avoided.
Both ABH and s.20 GBH carry the same sentencing guideline of 5 years’
imprisonment. It seems unnecessary to have two offences that have
the same penalty, even though GBH is supposed to be much more
serious than ABH.
Section 20 GBH gets 5 years’ imprisonment, whereas s.18 GBH affords
anything up to life imprisonment. The reason why the sentences are so
different is due to the defendant’s mens rea. There is no recognition of
the fact that the victim could be just as seriously hurt in both instances.
Topic 5
Non-fatal offences: evaluation
Inconsistency (1)
Charge
It is quite common for a person to be charged with a lesser
offence than the one that he or she has actually committed.
For example, a person who has committed GBH may be
charged with ABH that can be tried at the Magistrates’ Court.
This will save the court time and money, as a charge of GBH
would require an expensive Crown Court trial. It also makes
no difference whether a person is charged with s.20 GBH or
s.47 ABH, as both offences are punishable by a sentence of
up to 5 years’ imprisonment.
Topic 5
Non-fatal offences: evaluation
Inconsistency (2)
Plea bargaining
The prosecution may charge the defendant with a lesser
offence if he or she agrees to a guilty plea. This is known
as plea bargaining and saves the court time and money, as
it is not necessary to hold a trial and the defendant will be
given a more lenient sentence for an early guilty plea.
Topic 5
Non-fatal offences: evaluation
The basis for liability
Liability is based upon the level of injury. An alternative
would be to base it on the means of injury. Consider these
examples:
1. D is angry with V and pushes him. V falls, and by bad
luck fractures his skull. D is charged with GBH.
2. D lunges at V with a knife intending GBH, but V, by
good luck, is just scratched. D is charged with the less
serious ABH.
Is this fair?
Topic 5
Non-fatal offences: evaluation
Mens rea problems
There are difficulties in working out the mens rea for
several of the offences:
• For s.47 ABH, D only needs intent or recklessness as to
causing some physical harm – not necessarily ABH.
• For s.18 wounding with intent, if D has intent to resist or
prevent an arrest, the offence is committed even if he or
she is only reckless as to wounding/GBH or if he or she
intends only minor injury.
Topic 5
Non-fatal offences: evaluation
Actus reus problems
Assault
The requirement for V to fear an immediate battery leaves
a gap in the law – a threat to kill V next week is not an
assault.
Topic 5
Non-fatal offences: reform
Reform
Topic 5
Non-fatal offences: reform
Law Commission Report 1993
In 1993, the Law Commission produced a report entitled
‘Offences Against the Person and General Principles’. This
report redrafted the non-fatal offences and criticised the
current law for its:
• complicated, obscure and old-fashioned language
• complicated and technical structure
• complete unintelligibility to the layman
The Law Commission also produced the Draft Criminal Law
Bill, which redefined the offences. The recommendations of
this report have never been adopted.
Topic 5
Non-fatal offences: reform
Home Office Report 1998 (1)
The Labour government produced the Draft Offences
Against the Person Bill 1998, following the home office
report ‘Violence: Reforming the Offences against the
Person Act 1861’.
The new
Clause 1:
Clause 2:
Clause 3:
Clause 4:
offences
intentional serious injury (replaces s.18)
reckless serious injury (replaces s.20)
intentional or reckless injury (replaces s.47)
assault
Topic 5
Non-fatal offences: reform
Home Office Report 1998 (2)
The new sentences
The proposed sentences are the same, with the exception
of clause 2. This would replace s.20 GBH, which carries a
punishment of 5 years’ imprisonment. The new clause 2
would increase this to 7 years’ imprisonment.
Topic 5
Non-fatal offences: reform
Home Office Report 1998 (3)
Other changes
• Clauses 1 and 2 will include wounds that are considered
by the court to be ‘serious injury’.
• Clause 1 is the only offence that can be committed by
omission.
• Intentional serious injury caused by disease would be
allowed as a clause 1 offence. However, reckless injury
caused by disease (clause 2) would not be allowed. It
would be wrong to criminalise the transmission of minor
illnesses such as measles.
Topic 5
Non-fatal offences: reform
Home Office Report 1998 (4)
Other changes
• The mens rea of recklessness used in both clause 2 and clause
3 would require proof that the defendant saw a risk of the injury
that he or she actually caused. This changes the current law that
recklessness only requires the defendant to foresee some harm
(R v Roberts, R v Savage, R v Grimshaw).
Assault in clause 4 would be given the following statutory
definition:
(a) intentionally or recklessly applying force or causing an
impact on the body of another; or
(b) intentionally or recklessly causing the other to believe that
any such force or impact is imminent
Topic 5
Non-fatal offences: reform
Pause for thought
1. The draft bill was revealed in 1998 and yet the law has
not changed – why do you think this is?
2. Are the maximum sentences for clause 2 and clause 3
right? Should the gap between the two be wider?