Evaluation of non-fatal offences

Problems with the OAPA 1861

Back:

❌ The language is outdated (e.g., "grievous" = old-fashioned, unclear

❌ Statute is over 150 years old, not fit for modern law

❌ No clear hierarchy between offences - e.g., ABH (s.47) has same sentence as assault but more serious harm

❌ Wounding under s.20 can include minor injuries like a split lip (JCC v Eisenhower)

❌ s.18 and s.20 both use the word "maliciously" - vague and misleading

What are the non-fatal offences under the OAPA 1861?

Assault - common law, charged under s.39 Criminal Justice Act 1988

Battery - common law, charged under s.39 CJA 1988

ABH - s.47 OAPA 1861

GBH/Wounding - s.20 OAPA 1861

GBH with intent - s.18 OAPA 1861

Mens Rea issues with s.20 and s.47

❌ s.20 only requires foresight of some harm, yet the result could be serious (Parmenter)

❌ s.47 has no requirement for D to foresee harm - just intent for assault/battery

⚠️ This is seen as unfair - serious consequences, low culpability

✅ s.18 requires intent to cause serious harm - clear and proportionate

Reform suggestions for non-fatal offences

Law Commission (1993 & 2015 reports):

Replace OAPA with clear, modern offences

Suggested new structure:

Intentional serious injury (replaces s.18)

Reckless serious injury (replaces s.20)

Intentional or reckless injury (replaces s.47)

Assault and Battery kept as summary offences

✅ Greater clarity, fairness, and proportionality in law

Case example: Why the OAPA is criticised - Savage (1991)

D threw a drink at V, accidentally smashed glass and cut her

🔹 Convicted of s.20 GBH - only foresaw some harm

❌ Demonstrates how s.20 allows liability for serious injury with low foresight

📌 Criticised for breaching the correspondence principle (MR should match AR)

Why reform is necessary

✅ Protects victims, ensures legal certainty

❌ Current law lacks structure and clarity

📌 Law Commission reforms would simplify and modernise criminal law

✅ Better reflects harm and blameworthiness of D

✅ Easier for juries and lawyers to apply correctly