Non - fatals complexity
- Law should easily be understood by both Lawyers and lay people
- assault and battery not match lay person expectation
- NFO range of sources - common law ammend s.39 CJA, OAPA
Non- Fatals reform
- unanimously agreed
- essentially 1861 Act - copy and past earlier acrs - consolidate provisions earlier acts with little or no change to original phrasing
- complicated, obscure old fashioed land
- complicated and technical structure
- unintelligible to lay person
NFO - Law commission report 2015 s.18
- s.18 = Serious injury with intent to cause SI
- max sentence life
Law commission NFO - 2015 - s.20
- serious injury where D recckless as to serious injury caused
- max sentence = 7 yrs
Law commission - s..47 - NFO
- 2 new offences
- Intentionally or recklessly causing injury (max 5 yrs)
- Aggraated assauly (max 1 yr)
Law commission report 2015 - Common assault
- Physical assault (max 6 months)
- Threatened assault (max 6 mths)
AR and MR s.47 do not correspond
– s.47 d only need r for assault battery
- no need D to intend or forsee risk of ABH (Savage)
- constructive intent unfair because D is guilty for outcome rather then intent forseee
- However, constructive intent forces people to take responsibility for
their conduct, ensuring that victims get justice.
▪ The sentence jumps from 5 years even though D may not have
intended or foreseen a risk of the injury caused.
s.20 and s.18 AR - criticism
The phrase “Grievous Bodily Harm” is an old fashioned term and the
courts rely on case law for a definition.
▪ The inclusion of “wound” theoretically includes minor injuries. Serious
wounds could simply be treated as GBH.
▪ S.20 just says “maliciously” without explaining what this means.
“Maliciously” suggests evil intent but in common law it means intention
or recklessness as to some harm.
▪ There used to be some confusion over whether the verb “inflict”
required application of physical force. It just means “cause”.
Assault and battery unclear two distinct offences = confusion
S.39 Criminal Justice Act 1988 fails to distinguish Assault from Battery, causing confusion by referring to both as “Common Assault”.
- The terms are undefined in statute and rely on common law.
- Judicial decisions often contradict public understanding; most believe “assault” involves a physical attack, not just a threat, and “battery” implies a severe beating rather than any contact.
- A clear statutory definition is necessary for legal clarity.
s.20 Maliciously wounding or inflict GBH criticism
The AR and MR do not correspond – D need not foresee serious injury,
just some harm. “Constructive intent” means D is guilty for the outcome
of their actions, rather than what they intend or foresee.
▪ The sentence is the same as s.47 even though D has caused a much
more severe injury.
criticism s.18 OAPA
The verb “cause” (GBH) is used in s.18, while s.20 uses the verb
“inflict”. There used to be debate over whether they meant different
things or apply in different ways.
▪ In s.18, D must intend GBH, but there is also the word “maliciously”,
which adds nothing in most cases (unless D is intending to resist
arrest).
▪ Ds who wound or cause GBH while trying to resist arrest are charged
with the same crime as those who set out to cause serious injury.
Where D is trying to resist arrest, they need only foresee the risk of
causing some harm (Morrison 1989). Arguably, the two MR are
unbalanced.
▪ The maximum sentence jumps to life even though the injury is the same
as in s.20. This can be justified if D intended GBH but perhaps not if
they only intended to resist arrest.
Language problems NFO
- Language is inconsistent with the expectations of lay people
E.g. In law, “Assault” is apprehension of violence, but to a lay person
assault may mean a physical attack.
To a lay person “Battery” may imply a serious physical attack. - Key terms are not explained in the Act
E.g. Courts have defined ABH in Miller and decided “Assault”
includes Battery as well. Courts have defined GBH (Smith and
“Wound” (Eisenhower). - Language is out of date
E.g. Instead of saying “causing” s.47 uses the word “occasioning”
which is out of date. s.20 and s.18 use the words “grievous” and
“maliciously” which are not commonly used in today’s language.
lack stat def enable judges creativity
Courts have used case law to modernise and keep the law up to
date as well as fill in gaps e.g. Ireland makes silent phone calls part
of a potential assault even though this was never imagined back in
the 1800s.
Dica extended GBH so that it includes biological disease, while
Chan Fook and Burstow have extended injury to include psychiatric
harm.
illogical sentencing
Compared to Common Assault (6 months), 5 years for s.47 is a big
step up and does not reflect the level of MR needed for the offence.
S.20 shares the same maximum sentence as s.47 despite being far
more serious. Compared to s.20 (5 years), life imprisonment for s.18
is a big step up.
wounding seems to be too minor
Eisenhower defines wounding as breaking 2 layers of skin. This
could be relatively minor but given wounding is part of s.20 and s.18
we would expect it to be the equivalent of GBH.
AR and MR do not correspons
s.47 only need MR for the Assault / Battery (Savage).
▪ s.20 only needs foresight of some harm or some injury
(Mowatt / Parmenter).
▪ s.18 can have the required MR by intending to resist arrest with
foresight of some harm only (Morrison).
consent - core ideas
- The law’s case-by-case development creates uncertainty over the boundaries of the defence.
- Social and moral questions arise regarding what individuals can consent to.
- Some argue that the law lags behind societal views.
- Consent upholds personal autonomy.
- Consent must be balanced against societal good.
- It is challenging to strike the right balance between individual freedom and social paternalism.
Defence of consent is necessary
- Criminalising socially valuable activities like sport or surgery is inappropriate.
- Some sports, such as boxing, deliberately induce harm.
- Surgery involves purposeful violence, often causing serious injury—justifiable when patient consent is given or in emergencies.
- Determining reasonable medical procedures is complex, especially with cosmetic surgery and body modifications.
- These procedures can have significant long-term effects.
- They involve vulnerable individuals with potential mental health issues, as highlighted in R v BM (2018).
consent and public policy
- The courts often impose their moral views in defining the public interest.
- In Brown (1993), they upheld the law’s interference in sadomasochistic sex.
- Conversely, Wilson (1996) permitted husband and wife branding, viewing it as akin to tattooing, and shielded consensual activity in the home.
- However, Hobday (2025) criticised Wilson, aligning with Brown as more justified.
- In Emmett (1999), consent was not a defence for high-risk sex causing severe injuries.
s. 47 Sexual Offences Act
- Section 74 of the Sexual Offences Act 2003 states that consent is a defence only if given freely, with capacity, and without coercion.
- The context, targeting, and vulnerability of the victim are crucial.
- These factors place a heavy burden on the jury.
- There is a risk of inconsistent verdicts.
- This may explain recent difficulties in prosecuting sexual assault.
Consent and euthanasia
- Debate exists over whether those wishing to die, especially if physically unable, should be assisted.
- Legally, individuals can end their life, but aiding them risks murder or assisted suicide charges.
- In Nicklinson (2014), a paralysed man with limited movement, the Supreme Court declined a right to assisted death, citing potential harm to disabled persons and the sanctity of life.
- Parliament alone holds authority to change laws on murder and consent, though it remains reluctant despite public backing (approx 67%)
consent and horesplay
- Consent should not be permitted in dangerous horseplay, especially when victims do not actually consent.
- Cases like Jones (1986) and Aitken (1992) risk endorsing bullying and reinforcing harmful gender stereotypes and ‘lad’ culture.
- Courts reasoned there was no intent to injure and genuine belief in consent warrants the defence.
- It is inconsistent to permit this defence when mistaken belief is present but deny it when genuine consent is sought before reckless acts, as in Brown (1994) and R v BM (2018).
- While horseplay is condoned, sadomasochism and body modification are disapproved, even if consensual.
ideas for reform of consent
The Law Commission proposed that D should be able to rely
on V’s consent to an act intended to cause injury, or likely to
cause injury, but not to an act intended or likely to cause
serious injury.
▪ In its 1996 paper on “Consent and the Criminal law”, the Law
Commission recommended removing the defence of consent
for injuries resulting from horseplay or sexual activities.
▪ They suggested keeping surgical treatment, circumcision,
tattooing and ear-piercing as special cases, but adopting special rules in
relation to boxing and other organised sports.
▪ It may be preferable to leave the law to develop on a case by case basis
rather than to leave it to Parliament to lay down general principles that may
lead to injustice in particular cases.
Intox core
- Intoxication underpins much criminal activity
- Half of all violent offences are committed while under the influence
- This strains police and healthcare resources
- Justifies limited use of intoxication as a defence
