Evaluation of The Non-Fatal Offences

Evaluation of the law upon non-fatal offences

In this blog, we are going to evaluate and discuss the law upon the non-fatal offences, this is a key area of criminal law as it covers the crimes of assault, battery, ABH (Actual Bodily Harm), and GBH (Grievous Bodily Harm).

We will explain and examine the problems with the common law offences of assault and battery, which were developed by judges rather than Parliament, and issues still remain with the Offences Against the Person Act 1861, the law that governs the offences of ABH and GBH. This Act is over 160 years old, dating back to the Victorian era. Despite its importance within our legal system, many of its definitions, language, and punishments are outdated, confusing, and unfair in today’s society. In this post, we’ll break down the key problems with the Act and why many academics think that it needs to be seriously reform.

1. The Offence of Assault Is Confusing

Assault is a common law offence, which means it wasn’t created by Parliament, but by judges over many years. Here the issue lies with the fact that most people think assault means physically hurting someone, or even causing an injury but legally, it’s something entirely different. According to the law, assault happens when the defendant causes the victim to apprehend immediate and unlawful harm. That means the victim is afraid that they are about to be hurt but no physical contact happens.

But here is the problem, this definition is full of legal language that is confusing for most lay people. Lay people struggle to understand what term “apprehend” means as it is not a word that most people use in everyday life. And it is also difficult for a lay person to understand what counts as “immediate”? Judges have decided these meanings over time, but ordinary lay people still struggle to understand them.

This creates a big issue, if lay people are unable to understand what assault means, they might not realise when a crime has happened, or that their behaviour is criminal. This goes against the rule of law, which says laws should be clear and accessible so that everyone can follow them. If the public can’t understand the legal meaning of assault, that principle is being broken.

2. Battery Is Unclear

Just like assault, battery is also defined within common law, and again, it has been developed by judges, not Parliament. A battery happens when the defendant unlawfully applies force to the victim. This can include something as small as pushing or tapping someone, but there’s no clear definition of what "force" means in law. Does a light touch count? What about brushing past someone aggressively?

Again, this has created a problem, because there’s no legal definition of "force", it’s really hard for lay people to know what behaviour amounts to battery.

3. The OAPA Is Out of Date

The Offences Against the Person Act was passed in 1861, this was within Victorian times, when medicine and society were very different to that of today. For example, in Victorian times, people didn’t understand psychiatric injuries in the same way that we do now and because of that, the Act doesn’t cover psychological harm as a form of an injury.

This was a major gap in the law. If a victim suffered mental/psychiatric trauma because of the defendant's actions, the defendant might not be guilty of anything under the actual Act. However, to resolve this issue, judges have had to step in and fill the gaps of the old law. In the case of R v Chan Fook, the courts decided that that Actual Bodily Harm (ABH) could include psychiatric injury. Additionally, in R v Burstow, judges ruled that Grievous Bodily Harm (GBH) could also include serious psychological harm.

These decisions were important because they modernised the law and expanded to the law to protect victims of psychiatric harm. But they also raise questions. Should judges be making new law? According to the UK’s constitution, it is Parliament’s job to make laws, and judges are supposed to apply them. This is a problem because judges are not elected by the public, so they don’t represent society in the same way Members of Parliament do. The role of the judge is to apply the law, not to make it. When judges extend or change the law, by including psychiatric harm under ABH or GBH, they are overstepping their constitutional role. This can make the legal system seem less democratic, because unelected people who do not represent the views of society are making important decisions about what should or shouldn’t be a crime.

4. The Language of the Act Is Archaic

Another problem with the OAPA is that it contains old-fashioned language. It was written in 1861, and many of the words in it are now outdated or completely unfamiliar to modern people. A great example of this is found in Section 20 GBH, which uses the phrase: “maliciously inflicting grievous bodily harm.”

To most people today, “maliciously” means doing something with evil or bad intentions. But in legal terms, it doesn’t mean that at all. In fact, judges have explained that “maliciously” simply means that the defendant either intended to cause some harm, or was reckless as to whether some harm might occur. That’s a completely different meaning from how the word is used in everyday life.

Again, this goes against the rule of law, which that laws should be clear and accessible, so everyone can understand and follow them. If the law uses outdated or confusing words, like “maliciously” in the Offences Against the Person Act 1861, it becomes harder for ordinary people to know what behaviour is criminal. This means people might accidentally break the law, or not realise they’ve been a victim of a crime, which undermines justice and fairness in the legal system.

5. The Sentencing is Illogical

The different maximum sentences that are given for the different non fatal offences is problematic.

Here are the different sentence for the different non-fatal offences:

• Assault = maximum of 6 months in prison

• Battery = maximum of 6 months in prison

• ABH (s47) = maximum of 5 years in prison

• GBH (s20) = maximum of 5 years in prison

• GBH with intent (s18) = maximum of life imprisonment

Straight away, we can see several problems. First, both ABH and s20 GBH carry the same maximum sentence of 5 years, even though GBH is a more serious injury than ABH. That is both illogical and not fair. If someone causes serious harm, they should not be given the same sentence as someone who causes a minor injury. This is unfair because ABH usually involves minor injuries, like bruises or scratches, while s20 GBH involves much more serious injuries, such as broken bones or permanent damage. Even though the harm caused is clearly different, both offences have a maximum sentence of 5 years. This means someone who causes serious, life-changing injuries could get the same punishment as someone who caused a small injury. The law should reflect the level of harm, so that sentencing is proportional and fair for both the victim and the defendant.

Then there’s the difference between s20 GBH and s18 GBH. The only difference between the two offences is the mens rea. Both have the same actus reus and involve the same level of physical harm, but s20 carries 5 years, while s18 can result in life imprisonment. That’s a massive difference in punishment for what is often the same outcome for the victim.

Even assault and battery are confusing. They are different crimes, yet the sentences do not show any distinction, one involves fear, the other involves touching, but they carry the same maximum sentence of six months. That doesn’t reflect the fact that battery involves physical contact and is arguably more serious than assault.

Conclusion: A Law in Need of Reform

The Offences Against the Person Act 1861 is clearly not fit for modern society. The definitions of assault and battery are confusing, psychiatric harm wasn’t included, the language is Victorian and outdated, and the sentencing is inconsistent. Judges have tried to fill the gaps, but that’s not their job and many argue that it is undemocratic for unelected judges to create law.

It’s time for Parliament to take action. We need a new law that’s written in modern language, reflects modern values, and ensures that both victims and defendants are treated fairly. A clearer, more logical law would help the public understand their rights and responsibilities and uphold the rule of law.

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