Definitions of the offences.
 
 

1. There is still no clear statutory definition of assault and battery.

2. Much of the vocabulary antiquated and even misleading, for example ‘assault’ in section 47 and ‘maliciously’, section 20.

3. The requirement that the threat must be of immediate force to be an assault means that there is a gap in the law. Currently, it may be an assault if a person shouts that he is going to hit you, but if the threat is to hit you tomorrow, is not.

Lynsey, R v [1995] CA

[Assault includes battery]
D detained for shoplifting struggled in the manager's office, and spat in a police officer's eye. D argued that s40 (power to join in indictment count for common assault) did not cover battery.

Held: Henry LJ: 

"drafting of the 1988 Act is a mess, and they must have meant to include battery in s40 as well as in s39. Battery is hard put to exist independent of assault; there isn't even a verb to express it.  So assault in normal usage includes battery."

Henry LJ the present state of the law concerning non-fatal offences against the person ‘is yet another example of how bad laws cost money and clog up the courts with better things to do’

Guilty

Seriousness of the offences.

The hierarchy of the offences in terms of seriousness can also be criticised.

• Assault and battery only carry a maximum of six months' imprisonment, and

• section 47 five years, the only real difference between them is that injury is ‘occasioned’ and that injury can amount to as little as discomfort to the victim.

• Section 20 offences are defined as much more serious offence than section 47, and yet they share the same maximum sentence of five years.

Sec 20 carries 5 years, Sec 18 leaps to life.

• The only significant difference between Section 20 and section 18 is more serious mens rea, and yet the maximum sentence leaps from five years to life.

• Is this justified by the fact that a defendant who intends to cause GBH has the mens rea of murder (the mens rea of murder is intention to kill or cause GBH), and it is merely chance which that the victim survives, therefore chance that he is convicted of GBH or murder, therefore chance that he receives and mandatory or maximum life sentence?

Reform of the Offences Against the Person Act 1861

Reform.

In the 1960’s the Criminal Law Revision Committee recommended that this area of the law should be reformed.

The Law Commission again considered the matter producing a report and draft criminal Law Bill

Report = "Legislating the Criminal Code: Offences against the Person and General Principles" (1993)

Draft Criminal Law Bill in 1993. No action until:

February 1998, the Home Office produced a Consultation Document in furtherance of its commitment to modernise and improve the law. This resulted in a draft Offences Against the Person Bill modelled largely, but not entirely, on the Law Commission's 1993 Draft Criminal Law Bill.

Law Commission Proposals

Antiquated language

Bill removes the difficulty of trying to distinguish between "causing" and "inflicting" GBH

Avoids the artificial distinction between "wounding" and other bodily harm,

Injury; clause 15

"Injury" is defined as physical or mental injury.

"Physical injury does not include anything caused by disease, but.... includes pain, unconsciousness and any other impairment of a person's physical condition".

"Mental injury does not include anything caused by disease....”

'Anything caused by disease' is not an injury of either kind, except for the purpose of clause 1.

Criminal Law not appropriate for Transmission of disease.

Law Commission thought the OAP Act could be used in cases of the transmission of disease, but the government has not accepted this entirely.

It was felt that it would be inappropriate to use the criminal law where disease was transmitted through normal everyday activities.

Especially where there was a reckless transmission of relatively minor diseases such as mumps or measles even though there might be serious consequences for more vulnerable citizens. 

AIDs?

As to potentially more serious diseases the government felt it is appropriate to criminalize the deliberate transmission of a disease causing serious illness. However, the government maintains that the existing law requires no significant change.

The case of R v Dica [2003] the first case of biological GBH may have 'plugged' this loophole, Dica received 8 years for infecting 2 women.
In 1993 the Law Commission recommended the creation of a specific offence of transmitting HIV recklessly, following the case of Roy Cornes, an HIV-positive haemophiliac who was accused of recklessly infecting four women. He died before his case could reach court.

Assault and Battery Sec 39 (Clause 4)

The draft Bill still proceeds to use the term 'assault' for conduct that some would argue is better described as two separate offences of assault and battery.

Section 47 (Clause 3)

Intentionally or recklessly causing injury = triable either way = 5 years imprisonment.

Removes the requirement of an 'assault', which would be tidier and avoid the problem of finding an assault where there is a course of conduct (R v Cox (Paul 1998).

Section 20 (Clause 2)

Recklessly causing serious injury = triable either way = 7 years imprisonment

Section 18 (Clause 1)

Intentionally causing serious injury = indictable = life imprisonment.

Omissions?

could be committed by an omission but not the lesser offences

These three offences have now been incorporated in a Bill.

The Bill is based very much on the Law Commission's proposals which were widely critically reviewed.

Criticisms of the proposed reforms

Why not intentional and reckless non-serious harm?

If there is a justifiable need to have separate offences dealing with intentional and reckless serious harm why should this not also be necessary for cases of non-serious harm?

Mens Rea

Recklessness to remain subjective. Difficulties could arise as the statutory definitions differ from the common law definitions and if, for example, a jury was also faced with an accusation of murder, they would have to understand and apply two different tests for intention.

What makes harm more serious?
(William Wilson, Criminal Law (1998)

Its nature?
Its consequence?
Its effect on the victim's lifestyle?
The way it is administered?
The context in which it is administered?

No definitional distinction between serious and non-serious injury is made.

Horder has argued that the desire for certainty and the fair labelling principle point to the need for greater distinctions between offences.

He advocates the need for "moral nominalism" so that the law should reflect ordinary moral distinctions by more descriptive definitions.

Thus, there should be separate crimes dealing with mental cruelty and separate offences representing different methods of commission (disablement, disfigurement, castration etc.).  
J.Horder, "Rethinking Non-fatal Offences against the Person" (1994)

Body piecing and tattooing

Since 1st April 2004 regulation of piercing the body and skin colouring has been a matter for local authorities. 

There have been cases of septicaemia and even death as a result of this activity.  Even Henna tattoos that do not pierce the skin can cause serious problems to persons who are allergic.

Whilst not an unlawful activity it used to to be thought that there was an injury to the customer which is in excess of that allowed by common law.

This appears now to be purely academic as Parliament has regulated this activity, see the Local Government Act 2003: Regulation of cosmetic piercing and skin colouring businesses