OAPA 1861 Application in Non Fatal Offences

The Offences Against the Person Act 1861 (OAPA) [1] has been widely criticized for being outdated with the need for urgent reformation. The issue presented is whether the current law on non-fatal offences is satisfactory. According to Professor JC Smith, the OAPA is ‘a rag bad of offences brought together from a variety of sources’.[2] Despite this shared perception, there are some that may disagree with this statement in which they perceive the current law as satisfactory. This essay will set out to explain the current law on non-fatal offences in regards to assault, battery, assault occasioning actual bodily harm under section 47, malicious wounding or infliction of grievous bodily harm, under section 20 and wounding or causing grievous bodily harm with intent under section 18. Arguments for and against the efficiency of this act will be discussed but ultimately, the perspective that the current law on non-fatal offences is outdated, unclear, structurally ineffective and in need of reformation will be presented as the concluding judgment.

Firstly, the non-fatal offences will be explained. An assault is a common law offence and can be any act which causes a person to apprehend immediate unlawful violence.[3] An assault will be committed if one performs an act by which they intentionally or recklessly cause another individual to apprehend immediate unlawful violence.[4] This is the least serious non-fatal offence as no physical contact occurs between the defendant and victim. An example of an assault can be demonstrated in Logdon v DPP[5]. The defendant had pointed a fake gun at the victim in a jest in which they apprehended violence. An assault was committed as the victim apprehended immediate unlawful personal violence as the defendant had acted recklessly. Another common law offence is a Battery. Unlike an assault, actual contact is needed between the defendant and victim for this offence to occur however there is no injury. This offence is known as ‘unlawful touching’. Both offences obtain a maximum sentence of six months.[6]                                                                                                                                                  

The next offence that will be discussed is Assault Occasioning Actual Bodily Harm (ABH) under section 47.[7] This section states ‘whoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable…to be imprisoned for any term not exceeding five years.’ This offence occurs when the defendant commits an assault or a battery which causes the victim to suffer from actual bodily harm.[8]

Moving on to the more serious offences, section 20 of the OAPA is the malicious wounding or infliction of grievous bodily harm. This section provides 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.[9] The term ‘grievous bodily harm’ (GBH) means serious harm as held in R v Saunders.[10] This offence creates two offences. The first is of malicious wounding and secondly, the infliction of grievous bodily harm. The accused must either wound or cause the victim serious physical or psychiatric harm. The defendant must intend to cause some harm, or be reckless about the risk of some harm. For this purpose, awareness of risk of any level of physical harm is sufficient: The defendant need not intend or foresee a serious injury such as the one that occurred. The maximum sentence is 5 years.

The most serious offences discussed so far is wounding or causing grievous bodily harm with intent under section 18. The defendant either wounds or cases the victim serious physical and psychiatric harm. The defendant must intend to cause serious harm to the victim. The maximum sentence for this offence is life imprisonment.[11]

Now that the current law has been established, the law on non-fatal offences will be evaluated.

Firstly, the OAPA uses archaic and outdated language. As this legislation was enacted in 1861, it is obvious that the definitions used within the act are old and may be inapplicable. For instance, the term ‘bodily’ has been suggested to be an ‘old fashioned’ term by the Law Commission Report.[12] With respect to medical terminology, the term ‘bodily harm’ is used in section 47, 20 and 18 yet the probability of fear causing psychiatric injury had not been recognized.[13] In turn, case law has been developed by judges through the use of advanced medical knowledge as demonstrated in R v Ireland.[14] To further support this argument, in Burstow[15], Lord Steyn raised that ‘the Victorian legislator would not have in mind psychiatric illness’. This suggests that the law does not reflect mental health issues that have been developed within society as the Victorian approach is no longer necessary.[16] Furthermore, this outdated legislation uses language that may be inapplicable to modern times. In Cunningham[17] the term maliciously was interpreted to mean reckless as opposed to its actual definition which may create some confusion between specific terms used within the act.

Secondly, the OAPA has a ‘distorted and unclear hierarchy’ as indicated by Eugencios in reference to the offences under section 20 and 47. Both offences have the same mens rea and a maximum penalty of five years however section 20 is a more serious crime. HHJ Goymer for the Council of HM Circuit Judges concurred that ‘judges and juries have frequently to grapple with the problems of the current law contained in a statute that is now 154 years old’.[18] It is apparent that these offences are not logically classified.

Despite the evident issues that have been demonstrated with the current law on non-fatal offences, there may be some individuals and minority bodies that disagree with the idea of the reformation of the Act. Associations such as the Bar Council and the Criminal Bar think these defects in the act are only theoretical and legal meaning has been easily established by case law.[19] Some could argue that the current law may function well due to judges interpretation of case law.

Additionally, this act remains to be disorganized due to its unclear structure. For instance, there is no statutory definition for assault or battery so there is a lack of codification. In the older case of Lynsey [1995] 3 All ER 654[20], also turning on the confusion between assault and battery, Lord Justice Henry observed that: “The present appeal … is of no practical importance whatsoever but is yet another example of how bad laws cost money and clog up courts with better things to do.”[21]

A potential solution to the presented issues would be to reform the Act. A consultation paper published by the Home Office ‘Violence: Reforming the Offences against the Person Act 1861’[22] includes the 1998 Draft Bill. This Bill portrays the offences set out in a more logical structure and in plain English. All the law reform proposals, from the Criminal Law Revision Committee’s report in 1980 to the Home Office’s 1998 draft Bill, suggest a hierarchy of offences. This is intentionally causing serious injury, recklessly causing serious injury, intentionally or recklessly causing injury. A single offence also replaces assault and battery.[23] Despite the clarity this bill provides, there was still criticism which resulted in a lack of progression in its introduction. It had not been enacted.

To conclude, the OAPA clearly remains to be unsatisfactory on the basis that it is unclear, uses archaic language and is structurally flawed in support to the Law Commissions statement. The OAPA is in need of essential reform and should be replaced with new legislation which addresses the following defects within the act.

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R v Hamish (H) re compass pricks Callum (C)

Contrary to section 20 OAPA[24], H could be criminally liable for (CLR) wounding or inflicting GBH.

The actus reus (AR) requires H to unlawfully wound C or inflict GBH.[25]

The first element of the AR requires C to suffer a wound or GBH. In Eisenhower[26], a wound requires a break in both layers of skin. H handed C a compass which broke both layers of skin on his finger, therefore C suffered a wound.

The next element is causation. Applying Burstow[27], ‘inflict’ and ‘cause’ have similar meaning. Factual causation (FC) applies the ‘but for’ (BF) test applying White[28]. BF the defendant’s actions, would the result have occurred. BF H handing C the compass, C would not have bled.

In legal causation (LC) , the defendants actions are a substantial and operative cause (SC/OC) of the victims injuries applying Pagett.[29] This is more than an insubstantial cause.[30] H is a SC as handing the compass to C is more than a minimal contribution to the injury. H is also an OC of C’s injuries as he cannot rely on a break in the chain of causation (COC) as there was no novus actus interveniens.[31] LC is established.

The next element is whether C suffered GBH which is recognised as serious harm.[32] C heavily bled therefore be sustained GBH.

There was no lawful justification (NLJ) as H did not act in self-defence or consented with C.

The mens rea (MR) is H intended or was reckless (IOWR) as to causing some harm to C applying Savage.[33] In Maloney,[34] intention means the defendants aim/purpose to causing some harm. It was not H’s intention to cause C some harm as he intended to give him the compass for its purpose.

Did H act recklessly? R v G[35] conducts a two-stage recklessness test. The first test determines whether H had foreseen the risk of harm. Applying this, H had foreseen the risk of harm of handing C a compass – a sharp object which may cause harm. The second test is whether H acted upon this unreasonable risk? H had acted upon this risk by handing the compass to C causing his finger to bleed. H satisfies both tests therefore, was reckless as to causing some harm to C.

H could argue that he was unaware of C’s haemophilia and should not be accountable for his injuries however in Hayward[36], the thin skull rule states that the defendant must take their victim as they find them. H must take C as he found him. There are no defences.

The AR and MR is satisfied so H would be found guilty.

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R v C re assault

C may be CLR for an assault – when the defendant ‘intentionally or recklessly causes another to apprehend immediate unlawful violence (AIUV).[37]

The AR requires C to cause H to apprehend imminent unlawful force.[38]

Firstly, C must commit an act causing H to apprehend violence. The term ‘apprehend’ suggests what H perceives to violence that may occur. In Ireland[39], ‘a thing said is a thing done’ hence C’s words “I would take out my cricket bat and whack you on the head.”can constitute an assault. H apprehended violence of C hitting him and felt at ‘unease’.

Did H apprehend immediate violence? In Burstow[40] the victim may fear the possibility of immediate violence constituting an assault. Therefore, H apprehended immediate violence as he felt ‘uneasy’ once C made his statement.

There was NLJ. C was not in self-defence or consented with H.

The final element requires H to apprehend physical violence. In Collins v Wilcock[41], the slightest touch will amount to an assault. C’s statement of hitting H with a bat amounts to more than a slight touch. H believed physical contact would occur.

The MR is that C IOWR to causing H to apprehend immediate personal violence applying Venna.[42] Based on the facts, C intended[43] for H to AIUV of hitting him with a bat.

C would be guilty of this offence.

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R v H re Alban (A)

H could be CLF an assault occasioning ABH.[44]

The AR requires H to commit an assault or battery causing A to suffer ABH.[45]

The first element of the AR requires H to commit an assault meaning there must be an assault or  battery.[46] H committed an assault as he threw a book at A causing him to apprehend fear which resulted in him sustaining a bruise.

The victim must believe the defendant will carry out the threat of force.[47] A apprehended that H would throw a book at him.

Secondly, H throwing a book at A equates to a threat of immediate violence.[48]

H cannot rely on self-defence or consent with A.

Lastly, A believed there would be more than a mere force as he perceived the book to hit him in which he attempts to avoid this contact. [49]

FC[50], is established as BF H throwing a book at A, A would have not bruised. H is the SC as he attempted to throw a book at A which is more than a minimal contribution to A’s injury.[51] H is the OC as there was no novus actus interveniens.[52] LC is established.[53]

H could argue that A running into the bookshelf is a new intervening act in which he would not be liable for his injuries. However, applying Roberts[54], these actions will break the COC if they are daft and unexpected. Relating this, the chain would not break as A trying to avoid H’s actions despite running into a bookshelf is a foreseeable reaction.

The next element is whether A suffered ABH. ABH includes ‘any hurt or injury calculated to interfere with the health of the victim’ in Miller.[55] A suffered ABH due to his bruising.

The MR is that H IOWR to the assault.[56] No MR is required to injury, as long as the MR for assault is present.[57] H intended[58] to cause A to AIUV through the attempt of throwing a book at him. H fulfils the AR and MR and would be guilty of this offence.

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R v C re bat hits Douglas (D)

C could be CLF inflicting GBH.[59] 

The AR requires C to inflict GBH onto D.

Firstly, GBH was inflicted onto D. ‘Inflict’ requires a direct application of force onto the victim.[60] There was a direct application of force as C hit D with a bat.

C is the FC of D’s injury. BF the C hitting D with a bat, D would not have suffered a broken skull.[61] LC is established as C is the O/SC.[62] C is more than a minimal contribution to the injury as he had hit D with a bat.[63] C is also the OC of injury, as there is no new intervening act which breaks the COC.

GBH was present as D suffered the serious harm[64] of a broken skull.

There was NLJ. C was not in self-defence or had consent.

C could argue that he did not intend to hit D however in Latimer[65] the MR to cause harm to one person can transfer onto another. Applying this, C’s intention to hit A transferred onto D. C is still liable for the injuries inflicted on D.

The MR is that C  IOWR to causing some harm.[66] By C hitting D with a bat, it was C’s purpose[67] to inflict GBH onto D.

C would be guilty as the AR and MR is satisfied.

Table of cases

UK Cases

Collins v Wilcock [1984] 3 All ER 374

DPP v Little [1992] QBD

DPP v Smith [1961] AC 290

Fagan v MPC [1969] 1 QB 439

JCC v Eisenhower [1984] QB 331

R v Burstow [1997] UKHL 34

R v Cato [1976] 62 Cr App R 41

R v G [2003] 3 WLR

R v Hayward [1908] 21 Cox 692

R v Ireland [1997] 3 WLR 534

R v Lamb [1967] Crim LR 121

R v Latimer [1886] 17 QBD 359

R v Lynsey [1995] 3 All ER 654

R v Maloney [1985] AC 905

R v Miller [1954] 2 QB 282

R v Pagett [1983] 76 Cr App R 279

R v Parmenter [1991] 94 Cr App R 193.

R v Roberts [1972] 56 Cr App R 95 CA

R v Saunders [1985] Crim LR 230

R v Savage [1991] 94 Cr App R 193

R v Venna [1976] QB 421

R v White [1910] 2 KB 124

R v Wilson [1996] Crim LR 573

Tuberville v Savage [1669] EWHC KB J25

Table of Legislation: UK

Draft Bill 1998

Offences Against the Person Act 1861

Bibliography

Bits of Law, ‘Non-Fatal Offences: Evaluation & Reform’ (2011)

Eugenicos, A, ‘Should we Reform the Offences Against the Person Act 1861?’ (Journal of Criminal Law 2017)

Heath, J, ‘Empty Offences’ (Website 2015) accessed 24 March 2017

Herring, J, Criminal Law: Text, Cases, and Materials. (7th edn, Oxford 2016)

Home Office, Violence: Reforming the Offences Against the Person Act 1861 (Home Office, Great Britain)

Jefferson, M, Criminal Law. (7th edn, Pearson Education 2006)

Law Commission, ‘Offences against the Person Current project status’ accessed 23 March 2017

Law Commission, Reform of Offences Against the Person: A Scoping Paper (Law Com Consultation Paper No 217, 2014)

Law Commission, ‘Reform of Offences against the Person Summary’ (Report November 2015) accessed 2 April

Tabbush, S. ‘Reform of Offences Against the Person’ Criminal Law and Justice Weekly 2014

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[1] Offences Against the Person Act 1861

[2] J. Heath, ‘Empty Offences’ (Website 2015) accessed 24 March 2017

[3] Ireland [1998] AC 147, [1997] 4 All ER 225 the House of Lords adopted this definition ([1998] AC 147 at 161), citing Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, [1968] 3 All ER 442.

[4] R v Venna [1976] QB 421 at 429, 61 Cr App R 310 at 314, CA, Smith v Chief Superintendent of Woking Police Station, 76 Cr App R 234, DC, R v Ireland, R v Burstow [1998] AC 147, HL

[5] Logdon v DPP [1976] Crim LR 121 

[6] Law Commission, ‘Reform of Offences against the Person Summary’ (Report November 2015) accessed 2 April 2017

[7] Offences Against the Person Act 1861 s 47

[8] Jonathan Herring, Criminal Law: Text, Cases, and Materials (7th edn, Oxford 2016) 326

[9] Offences Against the Person Act s 20

[10] R v Saunders [1985] Crim LR 230

[11] Law Commission, Reform of Offences Against the Person: A Scoping Paper (Law Com Consultation Paper No 217, 2014)

[12] Law Commission, Reform of Offences Against the Person: A Scoping Paper (Law Com Consultation Paper No 217, 2014) Ibid 78

[13] Bits of Law, ‘Non-Fatal Offences: Evaluation & Reform’ (2011)

[14] R v Ireland [1997] 3 WLR 534

[15] R v Burstow [1997] UKHL 34

[16], ‘Offences against the Person Current project status’ Law Commission accessed 23 March 2017

[17] R v Cunningham [1957] 2 QB 396, CCA

[18] Alexandra-Marie Eugenicos, ‘Should we Reform the Offences Against the Person Act 1861?

Journal of Criminal Law 2017

[19] Ibid.

[20] R v Lynsey [1995] 3 All ER 654

[21] Simon Tabbush, ‘Reform of Offences Against the Person’ Criminal Law and Justice Weekly 2014

[22] Violence: Reforming the Offences against the Person Act 1861’ Home Office 1998

[23] Simon Tabbush, ‘Reform of Offences Against the Person’ Criminal Law and Justice Weekly 2014

[24] Offences Against the Person Act 1861, s 20

[25] Jonathan Herring, Criminal Law: Text, Cases, and Materials (7th edn, Oxford 2016) 328

[26] JCC v Eisenhower [1984] QB 331 

[27] R v Burstow [1997] UKHL 34 applied in Dica [2004] EWCA Crim 1103

[28] R v White [1910] 2 KB 124

[29] R v Pagett [1983] 76 Cr App R 279

[30] R v Cato [1976] 62 Cr App R 41

[31] Jonathan Herring, Criminal Law: Text, Cases, and Materials (7th edn, Oxford 2016) 89

[32] R v Saunders [1985] Crim LR 230

[33] R v Savage [1991] 94 Cr App R 193

[34] R v Maloney [1985] AC 905

[35] R v G [2003] 3 WLR

[36] R v Hayward [1908] 21 Cox 692

[37] Fagan v MPC [1969] 1 QB 439 House of Lords confirmed definition in R v Ireland; Burstow [1998] AC 147

[38] Jonathan Herring, Criminal Law: Text, Cases, and Materials (7th edn, Oxford 2016) 316

[39] R v Ireland [1997] 3 WLR 534

[40] R v Burstow [1997] UKHL 34

[41] Collins v Wilcock [1984] 3 All ER 374

[42] R v Venna [1976] QB 421

[43] R v Maloney [1985] AC 905

[44] Offences Against the Person Act 1861 section 47 Assault Occasioning Actual Bodily Harm

[45] Jonathan Herring, Criminal Law: Text, Cases, and Materials (7th edn, Oxford 2016) 326

[46] DPP v Little [1992] QBD

[47] R v Lamb [1967] Crim LR 121

[48] R v Burstow [1997] UKHL 34

[49] Collins v Wilcock [1984] 3 All ER 374

[50] R v White [1910] 2 KB 124

[51] R v Cato [1976] 62 Cr App R 41

[52] Jonathan Herring, Criminal Law: Text, Cases, and Materials (7th edn, Oxford 2016) 89

[53] R v Pagett [1983] 76 Cr App R 279

[54] R v Roberts [1971] EWCA Crim 4

[55] R v Miller [1954] 2 QB 282

[56] R v Venna [1976] QB 421

[57] R v Savage [1991] 94 Cr App R 193

[58] R v Maloney [1985] AC 905

[59] Offences Against the Person 1861 section s 20 Wounding or inflicting grievous bodily harm

[60] Michael Jefferson, Criminal Law (7th edn, Pearson Education 2006) 511

[61] R v White [1910] 2 KB 124

[62] R v Pagett [1983] 76 Cr App R 279

[63] R v Cato [1976] 62 Cr App R 41

[64] R v Saunders [1985] Crim LR 230

[65] R v Latimer [1886] 17 QBD 359

[66] R v Savage; Parmenter

[67] R v Maloney [1985] AC 905