Assault and Battery are classed as offences of basic intent, which means that if the defendant is intoxicated when doing the actus reus, he is considered as doing it recklessly, as stated by the House of Lords in DPP v Majewski (1976).
ABH (S47 OAPA 1861)
The actus reus of this offence is 'any hurt of injury calculated to interfere with the health or comfort of the victim'. Section 47 can be charged when there is any injury; bruising, grazes and scratches all come within this, as does psychiatric harm (Chan Fook 1994). However, the Court of Appeal pointed out that actual bodily harm does not include 'mere emotions such as fear, distress or panic' or 'states of mind that are not themselves evidence of some identifiable clinical condition'. The Mens Rea for a common assault is sufficient for the Mens Rea of a S47 offence. This means that the defendant must intend or be reckless as to whether the victim fears or is subjected to unlawful force. There is no need for the defendant to intend or be reckless as to whether actual bodily harm is caused.
Wounding (S20 OAPA 1861)
For this offence to be proved it must be shown that the defendant wounded or inflicted grievous bodily harm, and that he did this intending some injury to be caused or being reckless as to whether grievous bodily harm was inflicted. An intention merely to frighten will not be sufficient for this offence (Sullivan 1981). A wound means a cut or break in the continuity of the whole skin, which means that a scratch is not considered a wound. Internal bleeding where there is no cut of the skin is not sufficient; even a broken bone is not considered a wound, unless there is a break in the skin as well. Grievous bodily harm means 'really serious harm' (DPP v Smith 1961). The harm does not need to be life-threatening. A serious psychiatric injury can be grievous bodily harm. In Burstow (1997) it was decided that 'inflict' does not require a technical assault or battery, it need only be shown that the defendants actions have led to the consequence of the victim suffering grievous bodily harm.
Wounding with Intent (S18 OAPA 1861)
The actus reus of this offence can be committed in two ways, either by wounding or by causing grievous bodily harm. The meanings of 'wound' and 'grievous bodily harm' are the same as for S20. The word 'cause' is very wide, which means that it is only necessary to prove that the defendants act was a substantial cause of the wound or grievous bodily harm. As S18 is a specific intent offence, the Mens Rea requires that the defendant be proved to have intended to do some grievous bodily harm or maliciously resist or prevent the lawful apprehension or detainer of any person. This means that recklessness is not enough for the Mens Rea of S18. Intention cannot be found unless the harm caused was a virtual certainty as a result of the defendant actions and the defendant realised that this was so (Woollin 1998). When the defendant is trying to resist or prevent arrest or detention, then the level of intention regarding the injury is lower. The prosecution must prove that he had specific intention to resist or prevent arrest, but as far as the injury is concerned they only need to prove that he was reckless as to whether his actions would cause a wound or injury (Morrison 1989).
Critical Evaluation Of Non-Fatal Offences
Recommendations for the reform of this area of the law have been made by both the Criminal Law Revision Committee and the Law Commission. The Law Commission pointed out that there are three main problems with the OAPA 1861. These are that: the Act uses complicated old fashioned language, the structure of the act is complex and that non-lawyers find the Act completely unintelligible.
As the Act was written in 1861 much of the language is obscure and old fashioned, for example, the words 'maliciously' and 'grievous'. Many words do not have the same meaning now as they did in 1861 and some words are no longer used or have a specialist legal meaning. An example of this is the word 'malicious', as a layman would define the word as meaning evil or wicked, whereas a lawyer would define the word as meaning specific intention or subjective recklessness (Parmenter 1991). Some words and phrases do not describe what they mean, for example, in ABH 'actual' suggests any harm whereas, in fact, it does not include serious harm. 'Bodily' would seem to exclude mental harm, but in Chan Fook (1993) the court included it. All of these reasons have meant that Lawyers and Juries have struggled to understand the complexity or the different offences.
However, some of these problems have been resolved by the judges in case decisions, for example, the ruling in Burstow (1998) which stated that the word 'inflict' in S20 did not mean that a technical assault had to take place. The definition of 'bodily harm' has also been extended to include injury to mental health so that defendants causing such injury can be convicted.
Another problem with Non-Fatal Offences is that two of the five offences are common law (assault and battery). The numbering and structure of the offences doesn’t make logical sense; S47, which is causing ABH, carries a maximum sentence of 5 years, but so does S20, which is inflicting GBH. S18, which also involves inflicting GBH, has a maximum of life. Another problem is the fact that the prosecution has to prove an assault or battery for S47 but not for S20 and S18. S47 and S20 have Mens Rea's to commit lesser offences than the harm actually caused, for example, the Mens Rea of S47 is only an intention or recklessness as to an assault or battery and does not require the defendant to have forseen the causing of any ABH. This appears unjust, as does the fact that a person who causes a small cut can be charged with the more serious offence of S20 instead of S47. Clearly there are different levels of wound and many of them do not equate with GBH.
In 1993 the Law commission proposed a draft bill which addressed many of the above criticisms. It uses modern language, provides a logical structure of offences and has a graded and appropriate hierarchy of sentences. It also abolishes the technical distinction between assault and battery, and also the arbitrary division between GBH and wounding, which will make the law more accessible to juries and will lead to more consistent jury verdicts. However, even though the bill was sent out for consultation in 1998, the Government has done nothing more and the Law remains in an unsatisfactory state.
