Evaluation of Non Fatal Offences
A Law Commission Report published in 1993 described the OAPA 1861 and law of common assault as ‘inefficient as a vehicle for controlling violence’ where ‘many aspects of the law are still obscure and its application erratic’. It is routinely criticised as being chaotic, unjust, irrational, outdated and unclear.
Obscure and old fashioned
The essential problem lies with the fact that the OAPA 1861 is Victorian legislation that was never intended to be a logical and consistent set of rules applying to non-fatal offences. Instead, it was a piece of legislation that simply brought all the then applicable laws into one Act, called a consolidation act. Hence the sections are randomly ss47, 20 and 18 because the Act also includes other sections setting out the law on matters as diverse as poisoning and kidnapping. As a consequence there is no uniformity of language used between the sections and nor is there a coherent hierarchy in respect of the seriousness of the offences. Matters are made worse by the fact that the legislation suffers from poor drafting allowing a woeful lack of explanation of mens rea and failure to define terms, such grievous bodily harm and malicious. To add to this the basic problem that the courts are having to apply a piece of legislation drafted in the reign of Queen Victoria to situations created in a very different modern society, for example stalking and harassment.
Key words and phrases used in ss47, 20 and 18 are not defined in the statute so need to be explained through case interpretation. It is not appropriate that statutory offence terminology such as ‘actual’, ‘grievous’ and ‘bodily harm’ is continually evolving through cases and appeal processes and this can only lead to inconsistent decision making.
The word ‘assault’ is used inconsistently by those drafting the relevant legislation and there are no clear statutory explanations as to what is meant by an assault or a battery. The term ‘common assault’ is correctly understood to mean both of the distinct offences of assault and battery. This confusing use of terminology is compounded by vague drafting, which results in s39 of the CJA 1988 referring to ‘common assault and battery’ but s40 of that Act only referring to ‘a common assault’. Section 47 of the OAPA 1861 only uses the word ‘assault’ when this is also meant to cover battery.
Another criticism is that much of the language is old fashioned, badly drafted and used inconsistently. An example is the use of the word ‘maliciously’ at ss20 and 18, which is not defined in the Act. It was interpreted in R v Cunningham (1957) to cover recklessness but its usual and modern meaning would usually imply bad motive and wickedness. Furthermore, whilst ‘maliciously’ provides the only clues as to mens rea under s20 it has an unclear purpose in s18, where the mens rea is made clear by the words ‘with intent’.
The use of the word ‘inflict’ in respect of grievous bodily harm under s20 as opposed to ‘cause’ in s18 has also been subject to criticism. ‘Inflict’ was originally understood to have a narrower meaning than ‘cause’. At its narrowest interpretation in Clarence (1888) ‘inflict’ was understood to need an assault or battery requiring the application of direct force. In this case the court held that the defendant had not inflicted grievous bodily harm on his wife when he infected her with gonorrhoea on the basis that her consent to sexual intercourse meant that there had not been a battery.
In other cases the courts had taken a much wider view of the word inflict meaning there was no need to prove an application of direct force. In the case of R v Martin (1889) the court held that the D shouting fire in a theatre when he had locked all the exits was an infliction of GBH on the V’s who were seriously injured.
The meaning of inflict was finally decided in R v Ireland (1997), where the House of Lords ruled that there was no necessity to apply direct or indirect force. The prosecution only needed to prove that the defendant caused the victim to suffer grievous bodily harm. Lord Hope added that for practical purposes ‘the words ‘cause’ and ‘inflict’ may be taken to be interchangeable
The meaning of ‘wounding’ is also not set out in the Act and case law has provided that it means a breaking of both layers of the skin (Eisenhower). This does not match the normal understanding of the word and, as pointed out earlier, this means that a person can be charged under s20 for wounding by merely pricking their victim’s finger with a pin. However, the Charging Standard recommends that such minor injuries including small cuts and lacerations would be more appropriately charged under s47. It must be remembered, however, that the Charging Standard is designed only as a set of guidelines to assist prosecutors to choose the appropriate charge. It is not legally binding upon the courts and liability, once the charge is determined, will be decided in accordance with statute and case authority.
Hierarchy of seriousness
Section 39 of the CJA 1988 and ss47, 20 and 18 were not designed to work as one coherent hierarchy of offences. Accordingly, there is not a logical sentencing structure that reflects the seriousness of each offence, known as the ladder principle. Lord Bingham has recently put it that ‘ the interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than he deserves or acquitted altogether, so he receives no punishment at all.’
There is a potential for overlap between s39 of the Criminal Justice Act (CJA) 1988 and s47 since the threshold of harm that qualifies as actual bodily harm is set very low and includes all harm (save for serious harm and some wounds) that is considered more than ‘transient and trifling’ (R v Miller (1954)). Injuries at the lower scale of s47 and those charged under s39 of the CJA 1988 are morally similar and the significant disparity between the respective sentences of five years and six months is therefore unjust.
Even more surprising is the fact that although grievous bodily harm is a much more serious offence than actual bodily harm, the maximum sentence for both s20 and s47 is five years. The sentence then jumps to life imprisonment for s18, which might seem a disproportionate increase when the difference between the two offences is one of motive only, as the harm requirement is the same.
Two of the offences under the OAPA have been interpreted by the courts as using the principle of constructive intention where the P only have to prove the MR of a lesser offence which is then taken to prove the culpability of the D for the more serious offence.
According to R v Roberts (1971) a person is liable for actual bodily harm under s47 where there was only recklessness or intention as to causing a Common Assault. Similarly under R v Mowatt (1976) liability for grievous bodily harm will arise where the defendant intended only minor harm or was reckless as to the fact that some physical harm might be caused to some person. This has been criticised as failing to match the punishment to the culpability of the defendant and is therefore seen as unjust.
Out of date
The legislation was drafted in a different age and needs updating to modernise the language and to better reflect the concerns of modern society. Lord Steyn commented in Ireland; Burstow (1997) that ‘the Victorian legislator ... would not have in mind psychiatric illness’ but illnesses affecting the mind are now an established area of medical health and legislation needs to reflect this. Remember that the telephone was not invented in 1861, let alone e-mail and text! Judges have found ways to establish liability for psychiatric harm in the stalking cases (e.g. Constanza) but the liberal interpretations they imposed upon the wording of the Act in order to achieve this have been the subject of much criticism.
Stalkers can now be prosecuted under the Protection from Harassment Act 1997 as opposed to the OAPA 1861. This Act provides that a person will be sentenced to up to five years imprisonment if convicted of ‘a course of conduct (which) causes another to fear, on at least two occasions, that violence will be used against them.’
Judges also had to strain interpretation to convict the defendant for grievous bodily harm in Dica (2004). The Act is not suitable to deal with the prevention of the spread of Aids or indeed any other sexually transmitted diseases.
Widespread criticism of the legislation governing the non-fatal offences led to the Criminal Law Revision Committee publishing proposals for reform in 1981. These proposals formed the basis of the Law Commission Report 1993 and an attached draft Bill that was never put before Parliament. The new Labour government produced a draft Bill in 1998 essentially in the same form as the Law Commission Bill. The 1998 draft Bill includes the following proposals:
1. Statutory definitions are provided for assault and battery.
2. Section 47 is replaced by the offence of intentionally or recklessly causing injury to another person with a maximum prison sentence of five years. Prosecution will no longer need to prove that the injury was caused by an assault or battery. ‘Injury’ is defined to mean ‘physical injury’ which includes pain, unconsciousness and any impairment of a person’s physical condition and also ‘mental injury’, which includes any impairment of a person’s mental health.
3. Sections 20 and 18 are replaced by the separate offences of recklessly causing a serious injury to another and intentionally causing a serious injury to another. The maximum prison sentences are seven years and life imprisonment respectively. There is no longer any reference to wounding so the problem that a minor wound can be charged under these sections is removed. The troublesome word ‘inflict’ is removed and all references are to ‘caused’.
4. The harm intended or foreseen must correspond to the offence committed contrary to the mens rea principles in Roberts (1971) and Mowatt (1976). Accordingly, the reckless defendant will only be convicted under the new s47 if he has foresight of the injury as opposed to the battery that caused it and he must have foresight of serious injury to be convicted for grievous bodily harm.
5. Save for the offence of intentionally causing serious injury, ‘physical injury’ does not include disease and therefore a person will only be liable if he intends to infect another with a serious sexual disease and reckless infection will not be an offence.
6. Intention and recklessness are defined.
The draft Bill is clearly an improvement but has, nevertheless, attracted criticism. Such criticism includes the argument that the offence replacing s47 should also be divided into two separately punishable offences based on recklessness or intent, as there is no logic as to why the different mens rea should only be relevant to serious injuries. Furthermore, the definition of ‘injury’ still fails to establish a clear dividing line between what might constitute an injury and what would be charged as the lesser charge of assault. ‘Serious’ is still not defined and the term ‘assault’ continues to be used to mean both an assault and a battery.
In his forward to the 1998 draft Bill; the Home secretary pledged his government’s commitment to modernising and improving the law. The Bill has yet to be enacted and the courts are still relying upon the OAPA 1861.