Question number or Title: Non-fatal offences against the person, as set out in the Offences Against the Person Act 1861, represents “a ragbag of offences brought together form a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form” (Prof JC Smith, 1991).
Drawing on your knowledge of the general principles of criminal law, discuss the extent to which you agree with this statement. To what extent would the Law Commission’s proposals in relation to these offences improve the law?
Since the draft Criminal Code of 1989 proposed by the Law Commission it was established that before punishing a person for committing a wrongdoing act, the two general principles of criminal liability should be considered. These principles are the general action or conduct of the crime, called “actus reus” and the mental element of the criminal act or “mens rea”.
The actus reus is the objective requirement necessary to constitute the offence. When dealing with a particular crime, not only the circumstances should be considered but also the type of crime that has been committed. As Lord Diplock stated in Miller, there are two different types of crimes. The conduct crime where the external element of the offence is the prohibited conduct itself. Secondly, the result crime which ads proof that the conduct caused a prohibited consequence. For this reason, the actus reus is commonly defined as an “act”, which professor John Austin added that must be voluntary, committed in legally relevant situations and (for result crimes) causing the unlawful result.
On the other hand, if someone can properly acknowledge the misbehaviour of an act and commits it anyways, he will be held liable. The process of making this decision is a mental statement or cognition which became known as “mens rea”. More in detail, in Latin terms mens rea means a guilty mind or blameworthiness and at common law it usually means intention or recklessness which have been hard to distinguish.
Although Parliament has not defined them, intention is considered as whether the defendant intended the result. The Courts established two dominated views for intention. The direct intention where a consequence is intended due to the aim or the objective of the actor and the oblique intention where a consequence can also be intended when it is foreseen as a virtual or practical certainty. However, Lord Bridge stated in Moloney that this latter intention would only be necessary in “exceptional circumstances”.
Moreover, any degree of foresight less than the one required for intention will constitute recklessness which can be referred as ‘lacking caution or heedless of danger’. There were two species of recklessness under the criminal law until the landmark decision of G. The ‘subjective’ test where Cunningham is the major authority refers to whether the defendant foresaw the possibility of the consequence occurring and whether it was unjustifiable or not to take the risk. In contrast, in Cardwell the ‘objective test’ was applied and it meant that the defendant need not to realise that there were risks involved and Elliot v C followed that those risks should only be obvious to a reasonable person. At the present time the Cunningham test is usually applied in cases where the word ‘malice’ is used in a statute whereas Cardwell recklessness has been restricted to other areas of criminal law such as to whether property is destroyed or damaged.
Furthermore, an important rule in criminal law is the principle of correspondence which means that mens rea must exist in relation to the actus reus. In other words, that whatever the level of the actus reus is, it must be attributable to the mens rea.
In 1861, the Offences Against the Person Act (OAPA) was consolidated. This was the main statutory provision of the assault-related offences and they were ranked in some sort of hierarchy of seriousness in the terms of actus and mens rea. Nevertheless, it has been acknowledge that this area of the criminal law is in need of urgent reform because of the old wording that is used. To begin with, the least serious of all assault offences is known as “common assault” which the Criminal Justice Act s.39 divides as two separate crimes called “technical assault” and “battery”. Although they are statutory offences the statute has not defined them and one therefore has to turn to the common law to discover their constituent elements.
First of all, the actus reus of technical assault is that the defendant must do something to make the victim apprehend imminent force. In this case any degree of force will apply, it does not need to be aggressive as Logdon v DPP stated. The rules of actus reus on technical assault were illustrated in some leading cases such as R v Ireland and Burstow where it was held that silent phone calls can also cause an apprehension of immediate violence. Also in Tuberville v Savage it was considered that words may also negate an assault. Plus, Read v Coker showed that a conditional threat could also amount to an assault. Result crimes as in Smith v Superintendent considered that there is no need for the defendant to be at the face of their victims to make the apprehension. Finally, Constanza held that the victim can suffer a fear of violence at some time “without excluding the immediate future”.
On the other hand, the mens rea of this offence is that the defendant must intentionally or recklessly cause his victim to apprehend the infliction of immediate force. As a result, there is correspondence between the actus and the mens rea as the defendant must intend or foresee in terms of recklessness that the victim will apprehend imminent force.
While technical assault is the threatening of immediate force, a battery is the actual infliction of that force. The actus reus of battery is any touching or application of the defendant of unlawful personal force such as a push or a kiss. There were some disputed points in cases such as Haystead where it was approved from the Australian decision in Salisbury that the force does not need to be always direct. Also, in Santana-Bermudez it was supported that the omission of an act could also amount to battery. In Collins v Wilcock it was accepted that a battery could occur when there is an obvious refusal to consent to any touching. And As Lord Mustill said in Faulkner v Talbot the touching need not necessarily be hostile.
Furthermore, the authority case for the mens rea is Venna which required proof of the defendant’s intention to apply the unlawful force in an intentional or reckless way. After D v DPP the court of Appeal decided that the subjective test of Cunningham should be the one applied in these “common assault” offences. The punishment for common assault is in s. 39 of the Criminal Justice Act 1998 which provides that they shall be summarily offences. It has a maximum of 6 months imprisonment or a level 5 fine (5000 pounds). Nevertheless, it is more likely to get service community order unless the offence is racially or religiously aggravated (in that case the higher maximum penalty could be of two year’s imprisonment).
The more serious offences of violence are commonly termed “aggravated assaults” although it is not necessary to prove the existence of an assault in all of them. Section 47 of the OAPA 1861 refers to the offence of actual bodily harm or “ABH”. The actus reus of this offence has two requirements: there must be a common assault (either technical assault or battery) and it must “occasion” ABH. This section is very old and uses “occasion” rather than “causation” and refers to ABH as any hurt or injury calculated to interfere with the health or comfort of the victim as Lynskey J quoted in Miller.
We need to focus in cases such as DPP v Smith where it was considered that cutting someone’s hair without consent should amount to ABH. Chan-Fook stated that the harm could also affect the nervous system and brain. Hence, in Ireland & Burstow it was held that bodily harm includes recognizable psychiatric illness such as depression. Morris went a bit further and said that this psychiatric illness should require expert evidence. However, Dhaliwal stablished a difference where psychological injury won’t be enough for ABH.
Moreover, the defendant’s state of mind is not defined in section 47. Therefore, as illustrated in Roberts, ABH does not need to be foreseen and so the principle of correspondence would breach as no mens rea is required. However, in Savage v Parmenter it was settled that liability would be established if the defendant had the mens rea of common assault, namely, intention or recklessness. Furthermore, the maximum punishment of this offence is five year’s imprisonment.
The next aggravated offence is the one that s20 of the OAPA provides as maliciously wounding and inflicting grievous bodily harm or GBH. Although the maximum penalty for this offence is the same as s47, malicious wounding is regarded as the more serious of the two. In Moriarty v Brookes the term “wound” refers to the breakage of the dermis and epidermis of the skin, a “cut”. In contrast, DPP v Smith considered that grievous bodily harm means “really serious bodily harm”. The CPS guideline include injuries such as permanent disability or broken bones or limbs.
The keyword of the mens rea of s20 is “maliciously” meaning that the accused has foreseen the harm of the act but has continued to take the risk anyways (Cunningham test applied). Diplock LJ said in Mowatt: ‘It’s enough that D should have foreseen that some physical harm to some person, albeit of a minor character, might occur.’ Moreover, Wilson and Dica overruled that case of Clarence and established that an assault was not a prerequisite for section 20.
The last offence under s18 of the OAPA 1861 is the most serious offence and carries a maximum of life imprisonment. It is the same as s20 but adding the intent to resist or prevent the lawful apprehension or detention. Thus, the actus reus of this offence is exactly the same as in section 20. However, In Mandair the House of Lords held that “causing” was wider or at least not narrower than the word “inflict”.
However, two mens rea elements are contained within s18. Firstly, it is not necessary to prove that the defendant actually caused grievous bodily harm but that he at least caused a wound with intent to do it. Similarly, the presence of an intention should not lead to the conclusion that the defendant foresaw the possibility of wounding resulting from his conduct. As a result, it is submitted that intention under s18 bears the same meaning as that attributed by the House of Lords in Woollin.
In relation to this “ladder” of offences Professor JC Smith stated that this act represents “a ragbag of offences that form a wide variety of sources with no attempt to introduce consistency as to substance or form”.
Personally, I agree with this statement due to the fact that the 1861 Act is perplexing and has a lot of inconsistencies as to the meaning of all the offences. For instance, it is nowhere more obvious whereas actual bodily harm has to be ‘occasioned’ by the defendant under s47, ‘inflicted’ by the defendant under section 20, and ‘caused’ by the defendant under s18. This statute was raised more than 50 years ago, so I believe that it is time to make a careful review of each non-fatal offence and establish a reform with some much modern explanations where no confusion can be made and that agrees with the current society.
As a matter of fact, the Law Commission revised the proposals for reform of the OAPA Act 1861 and ended up with a new draft Bill for comment in 1998. This new Labour government considered that the 1861 Act did not represent a proper hierarchy of offences and therefore had three main purposes. Firstly, they wanted to replace the “outmoded and unclear Victorian legislation” with a much more modern and understandable one. Moreover, they considered the creation of a new offence of “aggravated assault”, to fill in the gap between common assault and the more serious ABH. This way more cases will be kept in the magistrates and out of the Crown Court and enormous cost savings could also result. Thirdly, to include more threats as those that cause serious injury and that involve rape.
It is clear that the OAPA’S Act ranking of offences is impaired by dim terms, uncertainties and some overlapping. But if these recommendations were taken into account some more detailed terms when referring to these offences would be achieved. For instance, the draft Bill of 1998 considers that instead of dividing “common assault” as “assault” or “battery” it should be named as threatened and physical assault. Also, malicious wounding or infliction causing grievous bodily harm should be stated as recklessly causing serious injury. I believe that the ultimate recommendations that the Law Commission has made in 2015 would improve the fairness of the defendants as well as the criminal justice system, and it would also make this scheme depend on the seriousness of the harm and the degree of foresight in a much more structured way than the 1861 Act.
- B V DPP  2 AC 428
- Collins v Wilcock  3 All ER 374
- Director of Public Prosecutions v Santa-Bermudez  EWHC 2908
- DPP v Smith  AC 290
- Elliott v C  1 WLR 939
- Faulkner v Talbot (1981) 3 All ER 469
- Haystead v DPP  3 All ER 690
- Logdon v DPP (1976) Crim LR 121
- Moriarty v Brookes  EWHC Exch J79
- R v Cardwell (1982) A.C. 341
- R v Chan Fook  1 WLR 689
- R v Constanza  Crim LR 576
- R v Cunningham  2 QB 396
- R v Dica  3 ALL ER 593
- R V DHALIWAL  EWCA CRIM 113
- R v Ireland and Burstow  UKHL 34
- R v Mandair  1 AC 208
- R v Moloney  1 AC 905
- R v Morris; Anderton v Burnside  UKHL 1
- R v Mowatt  1 QB 42
- R (Miller) v Secretary of State for Exiting the European Union  UKSC 5
- R v Roberts  EWCA Crim 4
- R v Venna  3 WLR 737
- R v Wilson  Crim LR 573
- R v Woollin  AC 82
- Read v Coker 
- Savage and Parmenter  1 AC 699
- Smith v Superintendent of Woking Police  Crim LR 323
- Tuberville v Savage  EWHC KB J25
- Andrew Ashworth & Jeremy Holder, Principles of criminal law (Oxford, 8th edition)
- Catherine Elliott & Frances Quinn, Criminal Law (9th edition, Pearson 2012)
- Leonard Jason-Loyd. The Framework of Criminal Law (CASS, 1992)
- Mike Molan, Duncan Bloy & Denis Lanser, Modern Criminal Law. (Cavendish, 2003, 5th edition)
- SR Kyd, T Elliot & MA Walters. Clarkson and Keating: Criminal Law (9th edition, Sweet & Maxwell 2017)
 R (Miller) v Secretary of State for Exiting the European Union  UKSC 5
 Mike Molan, Duncan Bloy & Denis Lanser, Modern Criminal Law. (Cavendish, 2003, 5th edn)
 R v Moloney  1 AC 905
 R v Cunningham  2 QB 396
 R v Cardwell (1982) A.C. 341
 Elliott v C  1 WLR 939
 Andrew Ashworth & Jeremy Holder, Principles of criminal law (Oxford, 8th edn).
 Logdon v DPP (1976) Crim LR 121
 R v Ireland and Burstow  UKHL 34
 Tuberville v Savage  EWHC KB J25
 Read v Coker 
 Smith v Superintendent of Woking Police  Crim LR 323
 R v Constanza  Crim LR 576
 SR Kyd, T Elliot & MA Walters. Clarkson and Keating: Criminal Law(9th edn, Sweet & Maxwell 2017)
 Haystead v DPP  3 All ER 690
 Director of Public Prosecutions v Santa-Bermudez  EWHC 2908
 Collins v Wilcock  3 All ER 374
 Faulkner v Talbot (1981) 3 All ER 469
 R v Venna  3 WLR 737
 B V DPP  2 AC 428
 DPP v Smith  AC 290
 R v Chan Fook  1 WLR 689
 R v Morris; Anderton v Burnside  UKHL 1
 R V DHALIWAL  EWCA CRIM 113
 R v Roberts  EWCA Crim 4
 Savage and Parmenter  1 AC 699
 Moriarty v Brookes  EWHC Exch J79
 R v Mowatt  1 QB 421
 Leonard Jason-Loyd. The Framewrok of Criminal Law (CASS, 1992).
 R v Wilson  Crim LR 573
 R v Dica  3 ALL ER 593
 R vMandair  1 AC 208
 Catherine Elliott & Frances Quinn, Criminal Law (9th edn, Pearson 2012)
 R v Woollin  AC 82
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