Non-Fatal Offences Against the Person
Introduction
Non-fatal offences against the person in English criminal law are governed principally by the Offences Against the Person Act 1861 (OAPA 1861), a piece of Victorian legislation that remains in force despite widespread criticism and multiple proposals for reform. The Act creates a hierarchy of offences based on the severity of harm: common assault, assault occasioning actual bodily harm, malicious wounding or inflicting grievous bodily harm, and wounding or causing grievous bodily harm with intent. The Law Commission has repeatedly recommended replacing the 1861 Act with a modern code, but these recommendations have not been implemented.
Common Assault
Common assault encompasses two distinct forms: assault (apprehension of immediate unlawful force) and battery (application of unlawful force). Both are summary offences triable only in the magistrates’ court, with a maximum penalty of six months’ imprisonment.
Assault requires the defendant to cause the victim to apprehend the imminent application of unlawful force. Words may constitute an assault, as in R v Ireland (1998), where the House of Lords held that silent telephone calls could constitute an assault where they caused the victim to apprehend immediate unlawful violence. The defendant must intend to cause the victim to apprehend immediate force or be reckless as to whether such apprehension is caused.
Battery requires the application of unlawful force to the victim. The force need not be hostile or aggressive; any unwanted touching may constitute a battery. The defendant must intend to apply force or be reckless as to whether force is applied. In R v Thomas (1985), the court held that touching the hem of a woman’s skirt constituted a battery, as any touching of another person without consent is an unlawful application of force.
Assault Occasioning Actual Bodily Harm
Section 47 of the OAPA 1861 creates the offence of assault occasioning actual bodily harm (ABH). The offence requires proof of an assault (or battery) that causes actual bodily harm. Actual bodily harm includes any hurt or injury that interferes with the health or comfort of the victim, including psychiatric injury, but not merely transient emotions such as fear or distress.
The mens rea for section 47 is the same as for common assault: the defendant must intend the assault or be reckless as to whether the assault occurs. The prosecution need not prove that the defendant intended or foresaw any particular level of harm. Section 47 is triable either way and carries a maximum penalty of five years’ imprisonment.
Malicious Wounding and Grievous Bodily Harm
Section 20 of the OAPA 1861 creates the offence of maliciously wounding or inflicting grievous bodily harm (GBH). The offence requires proof of a wound (the breaking of the continuity of the whole skin) or the infliction of grievous bodily harm (really serious harm). The defendant must act maliciously, meaning that they must intend to cause some harm or be reckless as to whether some harm is caused, but need not intend or foresee the particular level of harm caused.
Section 18 of the OAPA 1861 creates the more serious offence of wounding or causing grievous bodily harm with intent. The offence requires proof of a wound or grievous bodily harm, together with an intention to cause grievous bodily harm or an intention to resist or prevent the lawful apprehension or detention of any person. Section 18 is triable only in the Crown Court and carries a maximum penalty of life imprisonment.
The distinction between sections 20 and 18 lies in the mental element. Section 20 requires only malice (intention or recklessness as to some harm), while section 18 requires specific intent to cause grievous bodily harm or to resist arrest. In R v Taylor (2009), the Court of Appeal emphasised that the prosecution must prove that the defendant actually intended to cause really serious harm for a conviction under section 18.
Reform Proposals
The Law Commission published a report in 1993 recommending the replacement of the OAPA 1861 with a modern code of non-fatal offences, structured around the concept of harm levels. The recommendations were endorsed by the government but were never implemented. Subsequent Law Commission reports in 1998 and 2006 reiterated the need for reform, proposing a new hierarchy of offences based on intentional serious harm, reckless serious harm, and intentionally or recklessly causing harm, with a separate offence of assault.
The absence of reform has led to significant judicial development, including the recognition of psychiatric injury as bodily harm and the extension of the law of assault to cover silent telephone calls. However, the structure of the 1861 Act remains problematic, with overlapping offences, unclear definitions, and anomalies in sentencing.
Consent
Consent may provide a defence to non-fatal offences in certain circumstances. The general rule is that a person cannot consent to the infliction of actual bodily harm or more serious harm, except in recognised exceptions including: properly conducted surgical treatment; reasonable surgical interference for cosmetic purposes; regulated contact sports; lawful chastisement of children; and dangerous exhibitions and horseplay.
In R v Brown (1994), the House of Lords held that consent was not a defence to charges under sections 20 and 47 arising from sado-masochistic activities between consenting adults, even where no permanent injury was caused. The European Court of Human Rights in Laskey v United Kingdom (1997) held that the criminalisation of such activities did not violate Article 8 of the European Convention on Human Rights.
Conclusion
Non-fatal offences against the person under the Offences Against the Person Act 1861 provide a hierarchy of offences based on the severity of harm inflicted. Despite widespread criticism and repeated reform proposals, the 1861 Act remains in force, with the courts developing the common law to address modern circumstances while Parliament has declined to enact comprehensive reform.