Non-Fatal Offences Against the Person: Where to Now?

Why the Law on Non‑Fatal Offences Needs Reform

Reforming the law on violence against the person is a substantial and long‑overdue task.

Much of the current law still relies on unrepealed parts of the Offences Against the Person Act 1861 (OAPA 1861), a statute widely criticised as archaic, unclear and inconsistent. Because the Act is not a coherent restatement of the law but a consolidation of older provisions, any reform must ensure that new offences allow courts to deal with violence effectively and that the law is expressed in modern, plain language.

The system needs change, but reform raises important questions of policy, principle and practice. As Henry LJ observed, the law must be sufficiently clear and accessible to guide those whose actions and decisions must conform to it.

This article focuses on the non‑fatal offences against the person.

Non‑Fatal Common Law Offences

Non‑fatal offences include the common law offences of assault and battery. Historically triable only on indictment, they are now governed by section 39 of the Criminal Justice Act 1988 as summary offences carrying a maximum penalty of six months’ imprisonment and/or a fine of up to £5,000.

A major problem is the inconsistent charging standards.

An assault involving a battery that causes harm technically amounts to actual bodily harm (ABH) under section 47 OAPA 1861, yet it may still be charged as common assault under section 39. Section 39 covers injuries such as grazes, scratches, abrasions, bruises (including black eyes), swelling, reddening of the skin and superficial cuts.

Assault

Assault and battery have distinct meanings in theory.

In Fagan v MPC (1969), the court defined assault as any act that intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence. Modern usage often treats “assault” as a broad term covering both assault and battery.

The actus reus of assault is any act causing the victim to apprehend immediate violence (see Logdon v DPP (1976); Smith v Superintendent of Woking Police Station (1983)). Assault can be committed by words alone (R v Ireland (1997); R v Constanza (1997)). The mens rea is intention or subjective recklessness (R v Venna (1976); R v Spratt (1990)), applying the Cunningham test.

Battery

Battery is the intentional or reckless application of unlawful force. Even the slightest touching suffices (Cole v Turner (1705)). The mens rea mirrors that of assault: intention or subjective recklessness.

The term “battery” misleadingly suggests a higher level of force than the law requires; a mismatch rooted in the Victorian origins of the OAPA.

Hierarchy of the Non‑Fatal Offences

Sections 18, 20 and 47 of the OAPA 1861 are vague, outdated and poorly structured. Their terminology is unclear, and the hierarchy between them is not logically expressed. This leads to problems such as:

• Section 20 (GBH/wounding) and Section 47 (ABH) both carry a maximum penalty of five years, despite Section 20 involving more serious harm.
• The mens rea for Sections 20 and 47 is not clearly stated in the statute.
• Section 20 requires foresight of some harm, whereas Section 47 requires only intention or recklessness as to assault or battery, yet both share the same maximum sentence.

Parliament has not corrected this anomaly despite decades of criminal justice legislation.

Section 47: Actual Bodily Harm

What counts as “harm” under Section 47? In R v Miller (1954), harm was defined as any hurt or injury likely to interfere with the victim’s health or comfort.

This definition is difficult for juries to apply without judicial explanation. The term “actual” is outdated and should be replaced with clearer language. The five‑year maximum sentence is disproportionate for conduct as minor as interference with health or comfort. In DPP v Smith (2006), cutting off someone’s hair constituted ABH, illustrating the breadth of the offence.

Section 18: Intent to Cause GBH or Resist Arrest

Section 18 is more serious than Section 20 due to its higher mens rea requirement, but its wording is complex and obscure. Gardner highlights how the drafting fails to express the underlying hierarchy of seriousness.

Attempts at Reform

The problems with the OAPA have accumulated over decades. The Law Commission’s 1993 Report proposed a Criminal Law Bill that would repeal Sections 18, 20 and 47 and replace them with modern, clearly defined offences. The Commission criticised the Act for:

• antique and obscure language
• illogical and technical arrangement
• muddled, irrational and unclear provisions that risk injustice

Despite widespread agreement that reform is necessary, comprehensive legislative change has not yet been enacted.

Where Does It End?

The irrationality of the OAPA lies in its failure to follow a natural definitional structure, its failure to reflect the hierarchy of seriousness in the statutory wording, and its outdated organisation of offences.

The Law Commission has been tasked with revisiting reform, aiming to produce simplified, workable legislation that reflects modern understandings of harm and criminal responsibility.