There are numerous recurring problems with the current legislation; these include definition, interpretation and adaptation. This is particularly true for the law on assault, which lacked clarity and so required a great deal of interpretation by the judiciary. The public perception of assault is that it is the application of force to another person, whereas this is legally a battery. This was stated by James J in the case of Fagan v MPC, when he said that “for practical purposes today, ‘assault’ is generally synonymous with the term ‘battery’”. Until Burstow; Ireland in 1997, it was unclear whether words alone could constitute an assault. It was decided that an assault could be committed by words in any format, whether spoken or written, thus developing the law to cover media such as email and text messages, which had not been invented when the Act was passed. The issue of immediacy of the threat was addressed in the case of Smith v Superintendent of Woking Police Station and Constanza, in which it was stated that the victim must apprehend the application of force “at some time not excluding the immediate future”. However, this does not cover future threats, and implicitly there is a requirement that the victim believe that the defendant is capable of carrying out the threat at any time.
In order to overcome the confusion surrounding assault and battery, the new offence of assault makes it an offence for the defendant to apply force or cause the victim to “believe that any such force or impact is imminent”, and to do so intentionally or recklessly; this effectively merges the existing offences. However, Clause 4(2) explicitly states that no offence is committed where the force applied is “generally acceptable in the ordinary conduct of daily life”, thus incorporating a point of law from the common law into a statute.
The offence of ABH has been clarified through case law, although there are still important issues that remain unresolved. It was only in the 1990s that psychiatric injury was recognised as ABH (decided in Chan-Fook and confirmed in Constanza). There was additional confusion over the mens rea of section 47, as it was suggested in numerous cases, including DPP v K, that objective recklessness would suffice. However, in Savage, the court ruled that recklessness must be subjective. Despite this, it was held in the same case that the offence requires the same mens rea as that of assault and battery (intention or recklessness in either causing the victim to fear the apprehension of force or applying force to the victim), even though it carries the same maximum sentence of five years as a section 20 offence. The Government Bill states that injury can be physical or mental for an offence of “intentional or reckless injury”, where it “includes...impairment of a person’s physical condition” and “any impairment of a person’s mental health”. Physical injury also includes “pain”; this appears to broaden the law to include not only harm that is “calculated to interfere with health and comfort” (Miller), but also harm that is “transient or trifling” (Donovan), widening the scope of the current legislation.
The uncertainty surrounding sections 20 and 18 has resulted in a requirement for a great deal of interpretation by judges, as crucial words such as “grievous”, “maliciously” and “wounding” are not defined in the Act. In Mowatt, it was said that the inclusion of “maliciously” in section 18 was superfluous, as the mens rea was provided by the words “with intent”. The lack of clarity has led judges to interpret the wording of the offences as widely as possible to incorporate situations that could not have been envisaged at the time of the Act’s passing. It was decided in Smith that GBH was “really serious” harm, and this was widened further in Saunders, when it was held that there is no difference if the word “really” is omitted from the definition. The concept of wounding as “a cutting of the whole skin” could, in theory, cover minor cuts; this means that the harm caused is not necessarily equivalent to GBH.
In Ireland; Burstow, the House of Lords confirmed that psychiatric harm could amount to ABH (as decided in Constanza), but added that it could also constitute GBH in extreme cases. The same case clarified that there is no difference between “cause” and “inflict”, ending speculation that “inflict” had a narrower meaning than “cause”. It was previously unclear whether the transmission of disease, particularly HIV/AIDS was an offence, with the Government believing that it was not covered under the Act, but academics such as Professor Spencer argued that it was an offence under the existing legislation. The courts took the same view, and in Dica, it was established that the law does cover the reckless transmission of disease. If the law had been reformed, it would not have been necessary for the judiciary to make such radical decisions about the extent of the legislation, further illustrating the importance of reform and modernisation of the law on the non-fatal offences.
However, the law on “serious” injury may become more precise; neither of the Bills defined the meaning of “serious”, and the Home Office Report states that the Government is “content for the courts to decide what is appropriate in individual cases”. Despite this, the definition of wounding as a break in the continuity of the skin, which therefore currently includes minor cuts, would most likely be tightened so that only the most severe of injuries would constitute “serious” injury, with the remainder being downgraded to the category of “intentional or reckless injury”.
The proposed new offences of “reckless serious injury” and “reckless injury” will require proof that the defendant foresaw “serious injury” and “injury” respectively. A higher level of mens rea would be necessary than for the current legislation, where the defendant need only foresee some harm in order to be convicted of GBH (Mowatt), and he need not foresee the consequences required for the actus reus of the offence of ABH (Roberts).
The main arguments in favour of retaining the current legislation are that despite the uncertainty previously associated with the law, the key issues and questions have now all been settled, so any changes are not urgent. The current law works and is used on a daily basis; the House of Lords clarified the law in Ireland; Burstow, and the passage of the Protection from Harassment Act 1997 make reform unnecessary.
However, arguments in favour of reform are that both the Government and the Law Commission have proposed reforming the legislation in order to create a set of offences which is clearer, fairer and more logical. This would be reflected through the increase in the sentence for GBH and the higher degree of mens rea required for a conviction under the proposed legislation. In addition, reforming the law and updating the language would make it more accessible to laypeople and legal professionals alike. The complexity of the law would also be reduced, as it would not be contained in so many sources: the Criminal Justice Act 1988, the Offences Against the Person Act 1861 and the common law.
In conclusion, it appears that the law on non-fatal offences against the person is in need of reform to modernise the legislation to ensure that it meets the current social context. One of the main problems with the legislation is that it is so outdated; this has forced judges to extend the law to include new situations that could not have been covered by the legislation in the interests of justice. Despite the major questions of law having been resolved, the law lacks clarity and cohesion. The heavy reliance upon the Offences Against the Person Act 1861 gives it great importance, further justifying the need for reform of the current legislation.
