Offences Against the Person Act Attempts to Reform

For an action to be classified as an assault it should be immediate and the plaintiff should have intention to cause the victim to fear violence. Assault and battery both come under the law of intentional torts. Intentional torts is when a person has the intention to commit a ‘wrongful act’ to cause pain to another person. If an assault or battery is committed there is a maximum punishment of 6 months, they are also both classed as summary offences. A battery involves actual contact where as an assault does not have to include any form of contact . An assault is, in actuality, an incomplete battery; a person commits an assault if he or she intentionally places a person in apprehension of an impending battery. This is seen to be a problem within the torts of intention as there is no clear distinction between the act of assault and battery. The intentional torts of assault and battery create many difficulties within the law: this includes problems such as outdated language being used,

A plaintiff or complainant in a case for battery does not have to prove an actual physical injury. Rather, the plaintiff must prove an unlawful and unpermitted contact with his or her person or property in a harmful or offensive manner. In this essay I will establish the history of assault and battery and question whether it is indeed confusing and in need of reform.

The legislation covering these offences are over a hundred and fifty years old. Therefore it can be argued it is in need of reform as it is outdated. Reform would reduce costs as making offences more clear would bring many cases from the Crown Court to the Magistrates Court. Offences Against the Person Act attempts to reform through documents. Lord Thomas states “I recognise the problems identified in relation to the 1861 Act.The legislation is out of date and in some areas obsolete.” It is also open to interpretation because there are wide gaps between offences such as assault carries a six month sentence whereas actual body harm carries a five year sentence. This leads to uncertainty in the law and confusion as judges have to decide whether it is a serious or low level offence as they are similar.

Battery is in desperate need of reform as there are increasing numbers of people using litigation to solve such disputes. It is essential this is somewhat changed in order to bring some more clarity to the legislation. An example of this can be seen in the case of R v Ireland (1998). In this case The defendant made several silent telephone calls to three different women. He was convicted under s.47 Offences Against the Person Act (1861).

He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm. His conviction was upheld. New legislation should be introduced as a result of such cases and it shouldn’t be restricted to a certain time period and should be flexible enough to change with changes in society. There have been many problems surrounding consent for such offences. This is shown in R v Brown (2011), where an offence was committed during a rugby game, the victim will therefore have consented to a risk of violence as rugby is a contact sport. The law society state that there isn’t any logic in the grading of offences in the 1861 Act.

There are numerous reasons that the Offences Against the Person Act (1861). It is hard to understand due to the old fashioned language used. The grading of offences is also not clear and is not accurately reflected in sentencing e.g. GBH and ABH both have the same sentence despite GBH being more serious. Another major issue is that there are many references stated which are no longer relevant as they do no longer exist. There are also sections that describe many alternative ways of committing an offence this leads to confusion.

Assault and battery have come under serious scrutiny for many different reasons. Firstly the offences relate to specialised situations rather than having a clear principle. The language is also outdated and needs reforming, there are also references referring to obsolete legal concepts and procedures. Lastly the offences are not clearly classified as serious. John Atherton, of the National Bench Chairmen’s Forum, highlighted this “Having started by trying to read and understand the 1861 Act, I was struck by the outdated use of words and phrases.

The confusion of intentional torts is the ill defined meaning of intention. The intention can be to cause offensive bodily contact or injure or in a playful manner or involuntary actions and mistaken impressions. This can be seen in Williams v Humphrey (1975), in this case D pushed C into a swimming pool, and he broke his ankle. He argued that he didn’t intend to hurt C, the Court held this was irrelevant as he intended to touch C. Another such case is of Vosburg v Putney, in this case defendant lightly kicked plaintiff in the shin. About a month before, plaintiff had injured the same leg, but the injury appeared to be healing up. Defendant’s contact was so slight that plaintiff did not feel it, but a few moments later he felt a violent pain in that part of his leg. The injury got worse and required surgery and plaintiff ultimately lost use of his leg. One of the medical witnesses testified that plaintiff’s leg was already in a diseased condition from the prior injury when defendant touched it, ultimately causing destruction of the bone.

Battery in general usage suggests a higher level of force than is actually required by law. The use of the word bodily harm under s.18, 20 and 47 includes psychiatric harm according to R v Ireland yet it is highly unlikely the Victorian Draftsmen would have had this type of harm in mind. Use of the word ‘inflict’ has caused the courts considerable problems. It was first interpreted as requiring proof of an assault or battery in the case of R v Clarence (1888). The current meaning was established in R v Burstow (1997) as simply meaning cause.

The structure of the offences can also be criticised. There is no statutory definition of assault or battery and there are no clear boundaries between the offences. Any intentional touching of another without consent will amount to a battery this was established in the case of Faulkner v Talbot (1981) whereas any hurt or injury calculated to interfere with the comfort of the victim amounts to ABH. There seems little difference between the two other than interference with comfort, yet battery carries a maximum penalty of 6 months whereas for ABH it is 5 years. Frequent changes to the law have left it in an incoherent and confusing state, with more provisions repealed than currently in force. Such unnecessary complexity can make the law difficult to apply, reduces accessibility and fair labelling and is at odds with the rule of law. While the intended order of seriousness of the offences is clear, the grading is arbitrary and uneven, and does not always correspond to the likely seriousness of the underlying facts.

There can be charging difficulties where the available offences overlap. For example, many cases involving minor injuries could be charged either as assault or battery or as ABH. A charge of ABH is legally correct, but may be disproportionate to the seriousness of the defendant’s conduct. The Act is drafted in such a way that the offences are overly particular in their description, and unnecessarily complex. This is undesirable in principle. As examples, there are many separate offences each criminalising the same injury but doing so based on the different means by which the same harm was caused. Another key problem is that the Act contains offences that are unnecessary: assaulting a clergyman in the discharge of his duties is one such example. The general offences of assault and battery and public order offences provide protection in cases that might be prosecuted under that offence.

This scoping project formed part of the Eleventh Programme of law reform. We published a consultation paper in November 2014. In it we examined the current law, analysed the problems with it and tentatively suggested some options for future reform. In response the Law Commission recommended numerous developments. Firstly the adoption of a modified version of the Home Office’s 1998 draft Bill to replace the outdated Offences Against the Person Act 1861. Also the repeal of 25 offences to be replaced with 15 new ones. The next offence in the scheme is assault occasioning actual bodily harm, with a maximum penalty of five years’ imprisonment. For this offence there need be no proof that the accused intended or foresaw the harm caused. The offence is triable either in the Crown Court or in a magistrates’ court.

Since 1980 there have been six law reform documents on this area of the law published by various government bodies, starting with the Criminal Law Revision Committee’s 14th report “Offences Against the Person” in 1980 and culminating in the Home Office’s 1998 consultation paper and draft Bill. Each of these earlier efforts received strong practitioner and academic support at the time. Indeed, the Law Commission’s consultation paper in 1992 received such overwhelming support that a report followed within a year, accompanied by a draft Bill. Stakeholders ranging from police organisations to all levels of the judiciary and all of the major practitioner groups supported the call for “urgently needed reform of offences against the person”. We consider that the compelling case for reform has not diminished. We believe there is appetite for a modern, logical, coherent and workable scheme of offences to deal with violent behaviour. A new Act is needed that is comprehensible to the general public and clear for practitioners as to its precise meaning.

The Bar Council and the Criminal Bar Association both argued that the defects in the Act were largely theoretical, and that its legal meaning had largely been settled by judicial decision and worked well in practice. A few redundant offences could be removed, and some piecemeal changes could be made to the hierarchy of offences, without the need for comprehensive replacement. The London Criminal Courts Solicitors’ Association agreed that some cautious updating of the language was required but argued that most of the terms were well understood and that modernisation sometimes created more problems than it solved. Removing redundant offences from the 1861 Act was of little significance, in comparison to the large number of new offences which are regularly created but seldom prosecuted. John Spencer considered that the defects in language and structure were relatively unimportant, but that the number of offences concerned with assault and injury could be reduced.He was concerned that “well intentioned attempts to improve the law can go badly wrong”.

Draft Bill received much criticism, leading to a lack of progress in introduction, not been enacted. It was argued proposed new S47 offence of intentionally or recklessly causing injury to another should be split into two offences, intentionally causing injury to another and recklessly causing injury to another. It would bring the section 47 offences in line with those replacing section 20 and section 18 offences. The new definition of injury criticised for failing to make a clear distinction between what is sufficient for an injury and what would be charged as the lesser offence of assault. The word serious remains undefined whilst the term assault continues to mean both an assault and battery. There is also concern as proposals have still not been adopted which leads to the law remains unsatisfactory.