Introduction to OAPA
The main offences are set out in the Offences Against the Person Act 1861 (OAPA). They are based on whether or not the victim was injured; if there were injuries; their level of seriousness; and the intention of the defendant. The main offences are;
- Assault – S 39 Criminal Justice Act 1988
- Battery – S 39 Criminal Justice Act 1988
- Assault Occasioning Actual Bodily Harm – S 47 OAPA
- Malicious Wounding or Inflicting Grievous Bodily Harm – S 20 OAPA
- Wounding or Causing Grievous Bodily Harm with Intent – S 18 OAPA
There are two ways of committing this;
Assault and battery are common law offences. There is no statutory definition for either assault or for battery. However statue law recognises their existence, as both of these offences are charged under s 39 Criminal Justice Act 1988 which sets out that the maximum punishment for them is six months imprisonment or a fine of £5,000 or both.
The act involved is different for assault and battery. For assault there is no touching, only the fear of immediate, unlawful force. For battery there must be actual force. There are often situations in which both occur.
Actus Reus of assault and an act
An assault is also known as technical assault or a psychic assault. There must be;
- An act
- Something in the act which causes the victim to apprehend the infliction of immediate, unlawful, force.
- An assault requires some act or words
- An omission is not sufficient to constitute an assault
- However, words are sufficient for assault (verbal or written); Constanza (1997) the Court of Appeal held that letters could be assault. The defendant had written 800 letters and made a number of phone calls to the victim. The victim interpreted the last two letters as clear threats. The Court of Appeal said there was an assault as there was a ‘fear of violence at some time, not excluding the immediate future’.
- In Ireland (1997) it was held that even silent phone calls can be assault, it depends on the facts of the case.
Apprehend immediate unlawful force
- The act or words must cause the victim to apprehend that immediate force is going to be used against them
- There is no assault if the situation is such that it is obvious that the defendant cannot use force. For example; if the defendant shouts threats at a moving train, there is no possibility that he can carry out threats from a passing train, there is no possibility that he can carry out the threats in the immediate future.
- In Lamb (1967) that pointing an unloaded gun at someone who knows that it was unloaded is not assault. This is because that person does not fear immediate force. However, if the other person thought the gun was loaded this can be assault.
- Fear of immediate force is necessary; immediate does not mean instantaneous, but ‘’imminent’’, so an assault can be through a closed window as in Smith v Chief Superintendent of Woking Police Station (1983)
- The use of mobile phones today makes it even more likely that such a caller could be just outside the victim’s house. The fear of immediate personal violence is a very real threat in these situations.
- Words indicating there will be no violence may prevent an act from being an assault. This is a principle which comes from the case of Tuberville v Savage (1669). This was held not to be an assault because what he said showed he was not going to do anything. Fear of any unwanted toughing is sufficient: the force or unlawful personal violence which is feared need not be serious.
Unlawfulness of the force
- The force which is threatened must be unlawful
- If it is lawful, there is no offence of common assault
Actus Reus of Battery
- The application of unlawful force to another person
- Force is slightly misleading word as it can include the slightest touching, as shown by the case of Collins v Wilcock (1984)
- Even toughing the victim’s clothing can be sufficient to form a battery. In Thomas (1985) the defendant touched the bottom of a woman’s skirt and rubbed it. The Court of Appeal said, obiter, ‘There could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him’.
- A battery may be committed through a continuing act as in Fagan v Metropolitan Police Commander (1968)
- Indirect act – A battery can also be through an indirect act such as a booby trap. In this situation the defendant causes force to be applied, even though he does not personally touch the victim. This occurred in Martin (1881) where the defendant placed an iron bar across the doorway of a theatre. He then switched off the lights. In the panic which followed several of the audience were injured when they were trapped and unable to open the door. Martin was convicted of an offence under S 20 OAPA 1861.
- A more modern example is DPP V K (1990)
- Another example of indirect force occurred in Haystead v Chief Constable of Derbyshire (2000) where the defendant caused a small child to fall to the floor by punching the woman holding the child. The defendant was found guilty because he was reckless as to whether or not his acts would injure the child.
- Criminal liability can arise by way of omission, but only if the defendant is under a duty to act
- Such a duty can arise out of a contract , a relationship or from the assumption of care for another
- As the actus reus of battery is the application of unlawful force, it is difficult to think how examples could arise under these duty situations
- Other scenarios which could make a defendant liable by way of omission are where the defendant has created a dangerous situation which may lead to force being applied to the victim (Miller 1983) where the defendant accidentally set fire to his mattress but failed to do anything to prevent damage to the building in which he was sleeping. He was convicted of arson
- For battery to be committed, the force must be unlawful. If the victim gives genuine consent to it then the force may be unlawful.
- Force may also be lawful where it is used in self-defence or prevention of crime, this can only be so if the force used is reasonable in the situation as the defendant believed it to be.
- If the force is unlawful, then the person using the force is not guilty of battery
- Another situation where force may be lawful is in the correction of a child by a parent. English Law recognises that moderate and reasonable physical chastisement of a child is lawful. However, in A v UK (1998) where a jury had acquitted father who had beaten his son with a garden cane, the European Court of Human Rights ruled that a law allowing force to be used on children offends art 3 of the European Convention on Human Rights, however the Children Act 2004 now means that a battery committed on a child is not lawful if it results in any injury.
Self Defence/Defence of another
- Where reasonable force is used to defend oneself against attack, then this is lawful
- For example, in Wood (Fraser) v DPP (2008), where the defendant tried to pull away from police who were holding him, the defendant’s use of force was lawful. This meant that he was not guilty of any assault against the police. The police had not lawfully detained him, so he was entitled to use reasonable force.
Battery without assault
It is possible for there to be a battery even though there is no assault. This can occur where the victim is unaware that unlawful force is about to be used on him such as where the attacker comes up unseen behind the victim.
Mens rea of assualt and battery
- The mens rea for an assault is either an intention to cause another person to fear immediate unlawful personal violence or recklessness as to whether such fear is caused.
- The mens rea for battery is either an intention to apply unlawful physical force to another or recklessness as to whether unlawful force is applied. Son intention or reckless is sufficient for both assault and battery.
- The test for recklessness is subjective. For an assault the defendant must realise that there is a risk that his acts/words could cause another to fear unlawful personal violence.
- For battery the defendant must realise that there is a risk that his act (or omission) could cause unlawful force to be applied to another
- Assault and battery are classed as offences of basic intent. This means if the defendant is intoxicated when he does the relevant actus reus, he is considered as doing it recklessly. This was stated by the House of Lords in DPP V Majewski (1976).
(Assault where injury is caused) the lowest level of injury is referred to in the 1861 Act as ‘Actual Bodily Harm’ and the offence under s 47 OAPA 1861; is a triable either way offence and can lead to imprisonment of 5 years.
Actus Reus of s47
- It is necessary to prove that there was an assault or battery and that this caused actual bodily harm. This means that there must be the actus reus of either an assault or a battery to establish a s 4 offence.
- An example of an assault as the actus reus of a s 47 charge is Ireland (1997), where the defendant made silent phone calls to the victims. He put them in fear of immediate personal violence. His three victims suffered psychiatric harm as an illness as a result.
Actual Bodily Harm
- In Chan Fook (1994) it was held that the words ‘actual bodily harm’ were ordinary words. The word ‘harm’ means injury, hurt or damage. The word ‘actual’ means that there must be more than merely trivial hurt or injury.
- In R (T) V DPP (2003) Loss of consciousness, even momentarily, was held to be actual bodily harm.
- In DPP V Smith (2006) D cut off his ex-girlfriends pony tail with a pair of kitchen scissors without her consent.
- Section 47 can be charged where there is any injury. Bruising, grazes and scratches all come with this.
- Psychiatric injury is also classed as ‘actual bodily harm’. However this doesn’t include ‘mere emotions such as fear, distress or panic’ nor does it include ‘state of mind that are not themselves evidence of some identifiable clinical condition’.
Mens Rea of s47
- This means that the defendant must intend or be reckless as to whether the victim fears or is subjected to unlawful force. This is the same mens rea for an assault or battery.
- An example of where the defendant was reckless as to whether the victim feared unlawful force is Roberts (1971).
- This offence is commonly known as ‘malicious wounding’.
- It is a triable either way and the maximum sentence is five years
- This is the same maximum sentence as s 47, despite the fact that s 20 is seen as more serious.
- For the offence to be proved it must be shown that the defendant;
1. Wounded or
2. Inflicted grievous bodily harm
And that he did this;
1. Intending some injury to be caused; or
2. Being reckless as to whether grievous bodily harm was inflicted
- Wound means a cut or a break in the continuity of the whole skin
- A cut of internal skin, such as in the cheek, is sufficient, but internal bleeding where there is no cut of the skin is not sufficient JCC v Eisenhower (1983).
- Even a broken bone is not considered a wound, unless the skin is broken as well. In the old case of Wood (1830) the victim’s collar bone was broken but, as the skin was intact, it was held that there was no wound.
Grievous Bodily Harm
- In DPP v Smith (1961) it was that grievous bodily harm means ‘really serious harm’.
- The harm doesn’t have to be life threatening and in Saunders (1985) it was held that it was permissible to direct a jury that there need be ‘serious harm’ and not include ‘really’.
- In Bollom (2004) it was held that the severity of the injuries should be assessed according the victim’s age and health.
- In Burstow (1997) where the victim of a stalker suffered a severe depressive illness as a result of the stalkers conduct, it was decided that serious psychiatric injury can be grievous bodily harm.
- In October 2003 in Dica there was the first ever conviction for causing grievous bodily harm through infecting the victims with HIV. The defendant had had unprotected sec with two women without telling them he was HIV positive. Both women became infected as a result.
Inflicting Grievous Bodily Harm
- Section 20 uses the word inflict. Originally this was taken as meaning that there had to be a technical assault or battery.
- Even so it allowed the section to be interpreted quite widely, as shown in Lewis (1974) where the defendant shouted threats at his wife through a closed door in a second floor flat and tried to break his way through the door. The wife was so frightened she jumped from the window and broke both of her legs. Lewis was convicted of a s 20 offence. The threats could be considered as technical assault.
- In Burstow (1997) it was decided that ‘inflict’ does not require a technical assault or battery. This means that it need only be shown that the defendant’s actions have led to the consequence of the victim suffering grievous bodily harm. The decision also means that there now appears to be little, if any, difference in the actus reus of the offence under s 20 and s 18 which uses the word 'cause'.
Mens Rea of S20
- The word used in the section is 'maliciously'.
- In Cunningham (1957) it was held that 'maliciously' did not require any illwill towards the person injured. It simply meant;
An intention to do the particular kind of harm that was in fact done; or
Recklessness as to whether such harm should occur or not
- In Parmenter (1991) the House of Lords confirmed that the Cunningham meaning of recklessness applies to all offences in which the statutory definition uses the word 'maliciously'.
- For the mens rea in s 20 the prosecution can prove either that the defendant intended to cause another person some harm, or that he was subjectively recklessness as to whether another person suffered some harm.
- It is not necessary to prove that the defendant had intention to cause some harm or was reckless about whether serious harm was caused.
The offence under s 18 Offences Against the Person Act 1861 is often referred to as 'wounding with intent'.
It is considered to be much more serious than s 20 (seen by length of imprisonment)
Section 20 has a maximum of five years imprisonment whereas the maximum for s 18 is life imprisonment
Actus Reus of s18
This can be committed in two ways;
Causing grievous bodily harm
The word cause is very wide so that it is only necessary to prove that the defendant's act was a substantial cause of the wound or grievous bodily harm.
Mens Rea of s 18
This is a specific intent offence. The defendant must be proved to have intended to;
Do some grievous bodily harm; or
Resist or prevent the lawful apprehension or detainer of any person
Intention to wound is not enough for the mens rea of s 18 - Stated in Taylor (2009)
Reform of the Offences Against the Person Act 1861
Recommendations have been made by Criminal Law Revision Committee and the Law Commission
Law Commission pointed out 3 main problems:
Uses complicated and old fashioned language “maliciously”
The structure of the act is complicated
Non lawyer find the act very difficult to navigate and understand
Some problems with the act have been resolved through case law over the years.
Burstow 1998 – resolved the issue of the word “inflict”
Chan Fook - resolved the issue of the word “bodily harm” to include psychiatric harm as well
Inconsistency between offences
Particularly with regard to mens rea
S47 has the same mens reas as that of assault and battery – is that fair when one offence is more serious than another
It also seems unfair that a person who causes a small cut can be charged with s20 instead of s47. There are clearly different levels of wounding, not all of them are “grievous”
Also inconsistent that a D who only intends or foresees the risk of minor injury can be convicted of s18 if he intends to resist arrest – Morrison 1989
Inconsistency between offences
Assault/battery max is 6 months
S47 max 5 years
Despite the fact that the mens rea is the same
Max for s47 and s20 is the same despite mens rea and level of injury being more serious for s20
Modern understanding of bodily harm
The act was passed 150 years ago – medical knowledge was limited and psychiatric illness not understood
Case law like Burstow, Ireland have been developed to take this into account
If judges hadn’t done this then victims would have been unprotected
It would however have been better if Parliament has actually changed the law themselves
Judges also had to develop the law to cover diseases – HIV - DICA
Law Commission's Proposals
1993 made proposals
1998 Government – Home Office eventually created a draft Bill based on these recommendations
They intended on replacing all the separate sections into the following:
Intentional serious injury
Reckless serious injury
Intentional or reckless injury
Assault through intention or recklessness
a) applied force
b) Cause the other to believe that any such force is imminent
Each of the offences carries a separate mens rea
The words “injury” is clearly defined to include physical and mental
“Serious injury” is any kind of serious injury, wound or serious break etc