Criminal Law: Non-Fatal Offences Against the Person Study Notes week 9

Non-fatal offences against the person are categorized by the degree of harm inflicted and the accompanying mental state of the defendant. The primary statutory framework for these offences is the Offences Against the Person Act $1861$ ($OAPA$), though this legislation has faced significant criticism. Critics, such as John Atherton of the National Bench Chairmen’s Forum, have described reading the Act as akin to plaiting fog due to its archaic and obscure language. The Law Commission has frequently suggested reforms because the offences are not clearly classified in order of seriousness.

Additionally, the Criminal Justice Act $1988$ ($CJA$) provides the statutory power to charge common assault and battery, although their definitions remain rooted in common law. The hierarchy of these offences is often visualized as a pyramid, with common assault and battery at the base, followed by $s.47$ (Actual Bodily Harm), $s.20$ (Grievous Bodily Harm), and $s.18$ (Grievous Bodily Harm with Intent) at the peak. In practice, the Crown Prosecution Service ($CPS$) charging standards may influence which offence is prosecuted, but for academic assessment purposes, the choice of offence must be based on case law and the actual harm caused.

Common Assault: Definition and Conduct

Assault is a common law offence, though it is charged under $s.39$ of the Criminal Justice Act $1988$. It carries a maximum sentence of $6$ months’ imprisonment or a fine and is generally tried as a summary offence in the Magistrates’ Court. The legal definition, established in Fagan v Metropolitan Police Commissioner [1969] and approved by the House of Lords in Savage and Parmenter [1991], describes assault as an act where the defendant intentionally or recklessly causes the victim to apprehend immediate and unlawful personal violence. It is crucial to distinguish this from the colloquial use of assault, which often implies physical contact. In law, if contact occurs, it is battery; if only the threat of contact is apprehended, it is assault.

The actus reus of assault requires conduct that causes the victim to anticipate the imminent threat of unlawful force. Under Fagan [1969], an act is generally required, though there is academic debate regarding whether an omission could suffice if the defendant creates a dangerous situation and fails to remedy it. Words alone can constitute an assault, as established in R v Ireland and Burstow [1998], where the House of Lords rejected the archaic view from Meade and Belt [1823] that no words or singing are equivalent to an assault. They held that silent telephone calls and heavy breathing could constitute an assault if they cause the victim to apprehend personal violence. Whether a silent call amounts to an assault depends on the specific circumstances and the impact on the victim. Furthermore, conditional threats may negate an assault; in Tuberville v Savage (1669), the defendant’s statement indicated no immediate action would be taken, thus preventing the apprehension of violence.

Apprehension, Immediacy, and Personal Violence

For an assault to occur, the victim must apprehend violence, which translates to anticipation or expectation rather than just fear or fright. If the victim does not believe force is possible, there is no assault. For example, in Logdon v DPP [1976], the defendant used an imitation gun, and although the gun was unloaded and the defendant had no intention of using force, it was still considered an assault because the victim believed force would be inflicted. The victim does not need to believe force is certain; it is enough to apprehend that it might follow.

The concept of immediacy has been interpreted broadly. In Smith v Chief Superintendent of Woking Police Station (1983), a defendant peering through a window was considered sufficiently immediate. In Ireland and Burstow, the court suggested imminent violence could follow within a minute or two. More expansively, in Constanza [1997], where a defendant harassed a victim for $20$ months with letters and messages, the Court of Appeal held that apprehending violence at some time not excluding the future was sufficient. Ultimately, the duration that constitutes immediate is a matter for the jury.
Personal violence in this context refers to any unwanted touching; the victim does not need to fear serious injury.

Battery: Definition and Physical Contact

Battery is defined as any intentional or subjectively reckless touching of another person without their consent and without lawful excuse. As stated in Faulkner v Talbot [1981], the touching does not need to be rude, hostile, or aggressive. The rationale, according to Collins v Wilcock [1984], is the fundamental principle that every person’s body is inviolate. Even the slightest touch can constitute battery. Like assault, it is a summary offence under $s.39$ of the Criminal Justice Act $1988$, punishable by up to $6$ months in prison.

The actus reus involves conduct causing unlawful physical contact. While Fagan [1969] initially suggested an omission could not be a battery, it established the continuing act doctrine where the defendant parked a car on a police officer's foot and remained there. In DPP v Santana-Bermudez [2003], the court affirmed that an omission can lead to liability based on the Miller principle: if a defendant creates a dangerous situation (e.g., failing to disclose a needle in a pocket before a search), they have a duty to act. Touching can be indirect, such as through an object (Fagan), throwing a liquid (Savage), spitting (Smith [1866]), or touching the victim’s clothing (Thomas [1985]). Force can also be applied indirectly through obstructions (Martin (1881)), placing acid in a hairdryer (DPP v K [1990]), or causing a victim to drop a baby (Haystead v Chief Constable of Derbyshire [2000]).

Lawfulness and Everyday Touching

A battery must be unlawful. An exception exists for the exigencies of everyday life. Collins v Wilcock clarifies that physical contacts generally accepted in the ordinary conduct of daily life are not actionable. The test is whether the contact has gone beyond generally acceptable standards of conduct. For instance, tapping someone on the shoulder to gain attention is usually an exception, whereas physical restraint is not. While some argue this falls under implied consent, modern jurisprudence in F v West Berkshire Health Authority [1990] suggests these actions are simply treated as falling into a general exception for acceptable social conduct.

Mens Rea for Assault and Battery

Both assault and battery require a mens rea of either intention or subjective recklessness (Cunningham recklessness). This was confirmed in Venna [1976] and approved by the House of Lords in Savage and Parmenter [1992]. For subjective recklessness, the defendant must have personally foreseen the risk of their actions causing the victim to apprehend violence (for assault) or causing the unlawful touching (for battery), as seen in Spratt [1991]. It is possible for an assault to occur without a battery, and vice versa, though they frequently occur together.

Section 47: Assault Occasioning Actual Bodily Harm (ABH)

Under $s.47$ of the $OAPA$ $1861$, a defendant is liable if they commit an assault or battery that occasions actual bodily harm. Occasion is legally synonymous with cause, as established in Roberts (1972). This offence can be Tried Either Way (can be heard in Magistrates’ or Crown Court). The maximum sentence in the Crown Court is $5$ years imprisonment, while the Magistrates’ Court is limited to $6$ months and/or a fine. Actual Bodily Harm ($ABH$) is defined in case law as any hurt or injury calculated to interfere with the health or comfort of the victim. It must be more than transient or trifling, though it need not be permanent (Miller [1954]; T v DPP [2003]). Examples include bruises, grazes, and tenderness (R v Reigate Justices [1984]), temporary loss of consciousness (T v DPP), and cutting off a pony-tail (Smith [2006]). Psychiatric injury constitutes $ABH$ if it is a clinical, diagnosed illness (Chan-Fook [1994]; Dhaliwal [2006]). The mens rea for $s.47$ requires only the mens rea of the base offence (the assault or battery). It is not necessary for the defendant to intend or be reckless as to the actual harm (the $ABH$) itself. This is a form of constructive liability, confirmed in Savage and Parmenter [1991] and Roberts [1972], though Spratt [1990] briefly suggested otherwise before the House of Lords clarification.

Section 20: Unlawful Wounding or Inflicting GBH

Section $20$ of the $OAPA$ $1861$ covers the unlawful and malicious wounding or infliction of grievous bodily harm ($GBH$). This is an either way offence with a maximum penalty of $5$ years. A wound requires the continuity of the whole skin (both layers) to be broken, such as a stab wound (Moriarty v Brookes (1834)). Internal membranes, like the lip or cheek, count (Waltham (1849)), but a scratch (M’loughlin (1838)), or a burst blood vessel in the eye (C (a minor) v Eisenhower [1984]) do not. $GBH$ is defined as really serious harm (Smith [1961]). This includes serious psychiatric injury (Burstow [1998]) and the transmission of STIs like HIV (Dica [2003]), gonorrhea (Maranguanda [2009]), or herpes (Golding [2014]). Total injuries are considered (Grundy [1989]), as is the victim’s age and health (Bollom [2003]). Contemporary social standards are applied when judging the impact of diseases (Golding). The term inflicts in $s.20$ was historically thought to require an assault (Clarence (1888)), but Wilson [1984] and Ireland and Burstow [1998] clarified that inflict essentially means cause. No assault, battery, or direct physical violence is required. The mens rea requirement of maliciously means the defendant must intend or foresee some physical harm, even if it is only minor. It is not necessary to foresee a wound or $GBH$ (Mowatt [1968]; Savage and Parmenter [1992]).

Section 18: Wounding or Causing GBH with Intent

Section $18$ is the most serious non-fatal offence, carrying a maximum sentence of life imprisonment. It is an indictable-only offence. The actus reus is largely similar to $s.20$, requiring the defendant to unlawfully cause a wound or $GBH$. However, the wording "by any means whatsoever" and "to any person" is formally broader than $s.20$. The critical distinction is the mens rea: $s.18$ requires a specific intent to cause $GBH$ or an intent to resist/prevent the lawful apprehension or detainer of any person. Recklessness is insufficient for $s.18$. Intention here follows the same rules as murder, allowing for direct or indirect (oblique) intent (Woollin), though oblique intent is rare. Simply intending to wound is not enough; there must be an intent to cause really serious harm (Taylor [2009]). If the charge involves resisting arrest, the prosecution must also prove the defendant was malicious (intended or foresaw some harm).

Reform Proposals

Extensive reform of the $OAPA$ $1861$ has been proposed in $1985$, $1989$, $1992$, and $2015$. The Law Commission suggests replacing the current structure with clearer statutory offences. Under the $1998$ draft Bill, proposed changes included replacing $s.18$ with "Intentionally causing serious injury" (Life sentence) and $s.20$ with "Recklessly causing serious injury" ($7$ years). Section $47$ would become "Intentionally or recklessly causing injury," and common assault/battery would be split into "Physical assault," "Threatened assault," and "Aggravated assault" (where injury occurs regardless of intent/recklessness toward that injury). These reforms aim to improve the clarity of the law and create a more logical hierarchy of sentencing.

Case, Statute, and Legal Authority Summaries

Offences Against the Person Act 1861

The principal statute governing non-fatal offences against the person in England and Wales. It includes offences such as assault occasioning actual bodily harm (s47), grievous bodily harm (s20), and grievous bodily harm with intent (s18). The Act is frequently criticised for archaic language and an unclear structure.

Criminal Justice Act 1988

Section 39 gives statutory recognition and punishment for common assault and battery, although the substantive definitions remain rooted in common law.

Crown Prosecution Service

The public body responsible for prosecuting criminal offences in England and Wales. CPS charging standards influence which offence prosecutors pursue in practice.

Common Assault and Battery Cases

Fagan v Metropolitan Police Commissioner

A leading case defining assault as intentionally or recklessly causing another person to apprehend immediate unlawful violence. It also established the “continuing act” doctrine where a defendant’s ongoing conduct can satisfy actus reus.

R v Savage and Parmenter

An important authority confirming the definitions and mens rea requirements for assault, battery, ABH, and GBH offences. The House of Lords held that s47 ABH only requires the mens rea of the underlying assault or battery.

R v Ireland and Burstow

A landmark case establishing that words or silent conduct, such as repeated silent phone calls, can amount to assault. It also confirmed that psychiatric injury may constitute bodily harm.

Meade and Belt

An old authority suggesting words alone could not amount to assault. This approach was later rejected in Ireland and Burstow.

Tuberville v Savage

Held that words can negate an assault if they indicate no immediate violence will occur. The defendant’s statement showed there was no present intention to attack.

Logdon v DPP

Confirmed that assault can occur even where actual violence is impossible, provided the victim genuinely apprehends immediate unlawful force.

Smith v Chief Superintendent of Woking Police Station

A case confirming that violence may still be considered immediate even if there are barriers between defendant and victim, such as a window.

Constanza

Held that repeated letters and threats over time could create apprehension of violence sufficient for assault, even if the violence was not immediate in the strictest sense.

Faulkner v Talbot

Confirmed that battery does not require hostile or aggressive touching; any unlawful physical contact may suffice.

Collins v Wilcock

A leading authority establishing that everyday physical contact generally accepted in ordinary life is not unlawful. It also emphasised the principle that every person’s body is inviolate.

DPP v Santana-Bermudez

Held that liability for battery can arise through omission where a defendant creates a dangerous situation and fails to act, such as failing to warn about a hidden needle.

R v Miller

Established the principle that where a defendant creates a dangerous situation, they may be under a duty to take reasonable steps to prevent harm.

Smith

Confirmed that spitting on another person can constitute battery.

Thomas

Held that touching a person’s clothing can amount to battery because the clothing is closely connected to the body.

Martin

A defendant caused panic by obstructing an exit, leading to injuries. The case established that indirect applications of force may amount to battery.

DPP v K

A schoolboy placed acid in a hand dryer, injuring another pupil. The case confirmed that force can be applied indirectly.

Haystead v Chief Constable of Derbyshire

Held that causing force indirectly, such as making someone drop a child, can constitute battery.

F v West Berkshire Health Authority

A medical law case recognising lawful exceptions to battery where touching occurs as part of ordinary social interaction or necessity.

Venna

Confirmed that subjective recklessness is sufficient mens rea for assault and battery.

Spratt

Clarified that recklessness requires actual foresight of the risk by the defendant.

Section 47 ABH Cases

Roberts

Established that “occasioning” in s47 means causing. The defendant is liable where the victim’s response to the assault is reasonably foreseeable.

Miller

Defined actual bodily harm as injury interfering with the victim’s health or comfort that is more than merely transient or trifling.

T v DPP

Confirmed that temporary loss of consciousness can amount to ABH.

R v Reigate Justices

Held that bruises, grazes, and tenderness may constitute ABH if they interfere with health or comfort.

Smith

Held that cutting off a substantial amount of hair can amount to ABH.

Chan-Fook

Established that medically recognised psychiatric conditions may constitute ABH, but ordinary emotions such as fear or panic do not.

Dhaliwal

Confirmed that recognised psychiatric illness can satisfy the bodily harm requirement for ABH.

Section 20 GBH Cases

Moriarty v Brookes

Defined a wound as a break in the continuity of the whole skin.

Waltham

Held that internal skin, such as lips or cheeks, can satisfy the definition of a wound.

M’Loughlin

Confirmed that superficial scratches insufficiently breaking the skin do not amount to wounds.

C (a minor) v Eisenhower

Held that a burst blood vessel in the eye is not a wound because the outer layers of skin were not broken.

DPP v Smith

Defined grievous bodily harm as “really serious harm.”

Dica

Held that knowingly transmitting HIV can amount to inflicting grievous bodily harm.

Maranguanda

Confirmed that transmission of gonorrhoea may amount to GBH.

Golding

Held that transmitting genital herpes can constitute grievous bodily harm depending on seriousness and impact.

Grundy

Confirmed that courts may consider the total effect of injuries when deciding whether harm is sufficiently serious for GBH.

Bollom

Held that the seriousness of harm may depend on the victim’s age and health.

Clarence

An old authority suggesting that “inflict” required direct physical force. This approach was later rejected.

Wilson

Clarified that “inflict” in s20 simply means cause and does not require assault or direct force.

Mowatt

Held that for s20 the defendant only needs to foresee some physical harm, not serious harm specifically.

Section 18 Cases

Woollin

A leading authority on indirect (oblique) intent. The jury may infer intent where serious harm or death was a virtually certain consequence foreseen by the defendant.

Taylor

Confirmed that intent merely to wound is insufficient for s18; there must be intent to cause really serious harm.

Reform Authorities

Law Commission

An independent body responsible for reviewing and recommending reforms to the law. It has repeatedly criticised the structure and language of the OAPA 1861 and proposed modern replacements for non-fatal offences.