Other linguistic criticisms concern the words ‘assault’ and ‘battery’. Although technically used to describe ‘causing a victim to fear the use of unlawful personal violence’ , ‘assault’ is most commonly understood to refer to some sort of physical attack; ‘battery’ is strictly defined as ‘unlawful touching’ and no injury of any sort if required.
Probably the most serious attack on the 1861 Act concerns the issue of mens rea for each of the offences it describes. In s.47 assault occasioning ABH the statue is entirely silent on the issue of mens rea and it has been left to judges to determine what that is. The cases of R v Savage and R v Parmenter now confirm that the mens rea of assault or battery – intention or subjective recklessness – is all that is required. In s.20 the word ‘malicious’ has been interpreted to mean ‘intention or recklessness as to causing some harm’ (R v Mowatt and R v Grimshaw). In the most serious section – s.18 – judges and academic lawyers have concluded that the same word is effectively redundant, except in the secondary mens rea, intent to resist arrest.
A further obvious point of criticism is that this Act is now undergoing almost perpetual revision and rewriting by judges. This could almost be referred to as ‘law-making by statutory interpretation’. The 2003 case of R v Mohammed Dica, which involved the conviction of the defendant for s.20 ‘biological’ GBH after infecting two women with the HIV/AIDS virus, is another good example of the ability of senior courts to amend the law. The Court of appeal, having quashed the conviction and ordered a retrial, confirmed that injury by reckless infection does constitute an s.20 offence. The most significant aspect of this judgment is in regard to the defense of consent, as the court ruled that if the other party knew or suspected that his or her partner was infected, no criminal liability would arise.
Given the judicial decision in R v Savage (s.47) and R v Mowatt (s.20), it is clear that these two offences now involve constructive ability – for neither offences does the court have to prove intention or recklessness as to actus reus of the offences. A conviction for s.47 can be obtained by proving ABH was in fact caused by common assault and that the defendant either intended or was reckless as to the assault or battery. In neither of these offences is there any need to prove that the defendant intended or was reckless as to covering any level of harm at all. This issue of constructive liability militates against the basic principle of criminal liability, known as the principle of correspondence: that the fault element (mens rea) should be related to the actus reus of the offence and to the possible consequences of being convicted of that offence.
Finally, the ‘hierarchy of sentencing’ can be easily criticized. Both assault and battery have the same maximum sentence of 6 months. Section 47 ABH (which need only involve ‘any hurt or injury which interferes with the health or comfort of the victim’) has a far greater maximum sentence of 5 years. This is exactly the same as for s.20 wounding and inflicting GBH. These maximum sentences lack even a semblance of consistency or coherence.
It is now evident that there is an unarguable case for complete codification of all non-fatal offences, but even the 1994 Law Commission recommendations for reform did not include the common law offences of assault and battery. Furthermore, although these recommendations have been accepted by all subsequent governments, no action has been taken to incorporate them in any of the major Criminal Justice Act passed since then.
