Another linguistic criticism lies in the use of “inflict” in s.20 and “cause” in s.18. It is argued that the word inflict requires a battery for the full offence to take place, and this was the central issue in Rv Burstow, which was decided by the House of Lords where the Court of Appeal had certified the question: “Whether an offence of inflicting grievous bodily harm under s.20 can be committed where no physical violence is applied directly or indirectly”. Here it was argued that it is inherent in the word “inflict” that there must be a some application of force to the body but in the earlier case of R v Wilson Lord Roskill was “content to accept that there can be the infliction of GBH contrary to s.20 without an assault (battery) being committed. Lord Steyn in the leading judgement ruled that “there is no radical difference between the meaning of the words “cause” and “inflict”. Lord Hope went even further when he stated “for all practical purposes there is, in my opinion, no difference between these two words”. In a later section continued “in the context of a criminal act therefore the words “cause” and “inflict” may take to be interchangeable”. This question, however, was the main defence issue in the 2003 case of R v Dica.
Following the case of R v Spratt, all the assault offences require subjective recklessness; the defendant considered the risk and took it nonetheless. Some argue that this is right, as the courts would effectively punish someone for being stupid if objective recklessness was the MR required, yet others feel that it is not acceptable.
Secondly, the hierarchy of the offences in terms of seriousness can also be severely criticised. While assault and battery can only be punished with a maximum of 6 months imprisonment, and s.47 by 5 years, with the only real difference between them is that ABH is caused, yet ABH can mean as little as causing discomfort to the person. Also the s.20 offence is defined as much more serious offence than s.47 in both its actus reus and mens rea and yet they share the same maximum sentence. Although it is accepted judicial practice in sentencing that the maximum sentence will be rarely imposed, and then only for the most severe type of offence.
Furthermore, some ask why should a defendant be guilty of the most serious non-fatal offence, section 18, which carries a maximum of life imprisonment, when only minor injury is foreseen, but they intended to resist arrest? This is clearly a lack of justice, yet some feel, including myself that the current law regarding this area is satisfactory, as a defendant who intends to resist arrest does deserve the full punishment of the law. I feel that if this area of law was to be removed, there could be a rise in assaults on police officers carrying out arrests. The current law gives protection to the police who are merely doing their job, and it is unfair that a criminal should be able to resist arrest for a crime they commit, and not be convicted of a more serious offence as a result.
In 1993, the Law Commission published report 218: Offences Against the Person, in which it set out proposals for reform. These proposals were considered by the government in a consultation paper, Violence: Reforming the Offences Against the Person Act 1861, which also contained a draft bill.
The Law Commission proposed sweeping away all the incoherence, both presented here, and other incoherencies by introducing three main offences involving the infliction of violence, and several other offences involving assault or threats or violence. There can be no doubt that this would represent a considerable improvement on the present law and goes some way towards a rational structuring of offences, rather than the current pyramid of offences. The most serious offence is intentionally causing serious injury, whilst the same injury caused recklessly without the same intent will be a less serious offence carrying a lower sentence. The consultation paper also defined intention and recklessness, and also criminalized the transmission of STIs but only to those whom it can be proved beyond reasonable doubt had deliberately transmitted a disease intending to cause a serious illness. If this proposal had been implemented, the case of R v Dica would have been far more simple for the courts to handle, and would have resulted in a swifter verdict with the possibility of no appeal. However, the consultation period is long past, and no attempt has been made by the Labour government to implement either their, or the Law Commissions proposals.
However, John Gardner has argued that the pyramid of NFOAPs is satisfactory, and the reason for the same sentence being available to s.47 offences and s.20 is not due to a drafting mistake, but due to them being very different offences. He also argues that the reason s.47 requires an assault, whilst s.20 doesn’t is that assault, battery and s47 cover a very different evil to s20/18. Assault, etc cover personal autonomy, whilst s20/18 cover violence. The assault crimes are crimes against personal autonomy, and s20/18 are crimes of violence, thus they may have been more eager to expand the assault crimes to other instances covering personal autonomy, i.e. Ireland, Costanza, Smith v Woking.
In my opinion, the law commission paper 218 must be implemented in order to clear up a current minefield of legal red tape, prevent the constant misinterpretation of linguistics, and redress the balance between sentencing for the pyramid of offences, but maybe not as seriously as some may wish. I am a supporter of John Gardner, and the opinions he put forward do, to some extent, reflect my opinions, but I do recognise that something needs to be done in order to make the current law more satisfactory. If the current law remains in place, I feel that the Court System will continue to have numerous appeals on linguistic terms, and the more serious offences will continue to take a long time to come to a verdict, thus costing the tax payer and also employers of jury members, or jury members themselves if employers will not pay them for being on jury service.