Non-Fatal Offences Against the Person

Introduction

Non-fatal offences against the person deal with causing harm or the fear of harm without causing death. The main offences range from common assault and battery to actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861 (OAPA 1861), and grievous bodily harm (GBH) or wounding under sections 20 and 18. While the OAPA 1861 is old, modern case law continues to shape how these offences are charged and proved.

At their core, each offence requires proof of the actus reus (what happened) and the mens rea (the defendant’s state of mind). The level of harm and the level of intent separate assault and battery from ABH, and ABH from GBH. Consent can excuse some contacts, particularly in everyday life, medical procedures, and sport, but it has clear limits once injury goes beyond the trivial.

What You’ll Learn

• Precise definitions of assault and battery, and how they differ
• How ABH under section 47 works, including psychiatric harm
• The difference between section 20 and section 18 GBH/wounding
• What counts as a “wound” and what “really serious harm” means
• When indirect force is enough for battery
• How “immediate” is interpreted for assault
• Mens rea for each offence, including the role of Cunningham recklessness
• When consent is a defence, and when it is not
• Key cases and how to apply them to problem questions

Core Concepts

Assault and Battery

Assault

• Definition: Any act causing another person to apprehend immediate unlawful violence. No physical contact is needed.
• Actus reus: An act or words (including silence in some contexts) that cause the victim to expect imminent unlawful force. “Immediate” is read as “imminent”, not necessarily instantaneous.
• Mens rea: Intention or recklessness as to causing that apprehension (subjective recklessness as in Cunningham).
• Key points:
  • Words can amount to assault, and silence can suffice where it conveys an imminent threat (Ireland; Constanza).
  • Conditional threats can be assault depending on context (Logdon), but words may also negate an apparent threat (Tuberville v Savage).
  • The victim’s fear must be reasonable in the circumstances.

Battery

• Definition: The application of unlawful force to another. The slightest touching without lawful excuse can be enough.
• Actus reus: Any unlawful touching, including touching clothing. Force can be direct or indirect.
• Mens rea: Intention or recklessness as to applying unlawful force.
• Key points:
  • Everyday jostling is generally lawful due to implied consent to ordinary social contact (Collins v Wilcock).
  • Battery can be indirect (DPP v K; Martin) and can be committed via an intermediary (Haystead).
  • Continuing act doctrine can convert an accidental contact into a battery once mens rea is formed (Fagan v MPC).

Actual Bodily Harm (Section 47 OAPA 1861)

• Structure: An assault or battery that occasions actual bodily harm.
• Actus reus: Assault or battery causing harm that is more than transient or trifling. Harm includes:
  • Physical injuries (e.g., bruising, cuts, temporary loss of consciousness).
  • Recognised psychiatric conditions (but not mere emotions such as fear or distress without medical evidence) (Chan-Fook).
  • Cutting off significant amounts of hair has been held to be ABH (DPP v Smith (Michael)).
• Mens rea: Only the mens rea for the basic assault or battery is required. The defendant need not intend or foresee ABH (Savage; Parmenter).
• Causation: “Occasioning” uses ordinary causation principles, including the thin skull rule (Roberts).

GBH and Wounding (Sections 20 and 18 OAPA 1861)

• What is GBH? “Really serious harm” assessed by the jury in context. The victim’s age and health can increase the seriousness (Bollom). Serious psychiatric injury can amount to GBH (Burstow).
• What is a wound? A break in both layers of the skin (epidermis and dermis). Internal bleeding without skin break is not a wound (JCC v Eisenhower).

Section 20 (malicious wounding/inflicting GBH)

• Actus reus: Unlawfully wounding or inflicting GBH. “Inflict” does not require an assault; it means “cause” (Ireland; Burstow).
• Mens rea: Intention or recklessness as to some physical harm (not necessarily serious harm) (Savage; Parmenter; Mowatt).
• Examples: Significant fractures, multiple injuries, or transmission of serious disease (Dica).

Section 18 (wounding/causing GBH with intent)

• Actus reus: Unlawfully wounding or causing GBH.
• Mens rea: Specific intent to cause GBH, or intent to resist/prevent lawful apprehension with wounding/GBH resulting.
• Sentencing: Treated far more seriously than section 20 due to the higher level of intent. Evidence such as use of a weapon, targeting vulnerable areas, or repeated heavy blows may support section 18.

Consent and Its Limits

• General rule: Valid consent can excuse what would otherwise be assault or battery. Everyday social contact, reasonable force in games and sport, and proper medical procedures are usually covered.
• Sport: Conduct within the rules and culture of the sport is usually consented to (Barnes). Intentional off-the-ball violence may fall outside.
• Sexual activity and private acts: The House of Lords in Brown held that consent is not a defence to ABH or GBH in sado-masochistic encounters. However, branding by a husband on his wife’s buttocks was held lawful by comparison with tattooing (Wilson), highlighting that context matters.
• Street fights: Consent is not a defence to assaults causing more than trivial harm (A-G’s Ref (No 6 of 1980)).
• Disease transmission: For recklessly transmitted serious disease (e.g., HIV), consent must be informed; mere knowledge of a relationship is not enough (Dica; Konzani).

Key Examples or Case Studies

Ireland; Burstow [1997]

• Point: Silence and sustained harassment can be assault; serious psychiatric injury can be ABH or GBH. “Inflict” in section 20 means “cause”.
• Application: Words and silence may suffice for assault; medical evidence is needed for psychiatric harm.

Collins v Wilcock [1984]

• Point: Battery includes the slightest unlawful touching; ordinary social contact is lawful due to implied consent.
• Application: Distinguish between everyday contact and hostile touching.

DPP v K [1990] and R v Martin (1881)

• Point: Indirect application of force (e.g., placing a substance or creating a trap) can be battery.
• Application: No need for direct contact if the defendant causes unlawful force to be applied.

DPP v Smith (Michael) [2006] and Chan-Fook [1994]

• Point: Cutting off hair can be ABH. Recognised psychiatric disorders can be ABH.
• Application: Do not limit ABH to visible physical injuries.

Savage; Parmenter [1991]

• Point: For section 47, it is enough to intend or be reckless as to the assault or battery; no need to foresee ABH. For section 20, foresee some physical harm.
• Application: Charge selection often turns on the level of mens rea proved.

JCC v Eisenhower [1984]

• Point: A wound requires breaking both layers of the skin; internal bleeding is not a wound.
• Application: Medical reports are key to distinguish wounding from GBH without wounding.

R v Dica [2004]

• Point: Reckless transmission of HIV can be section 20 GBH. Consent must be informed to be a defence.
• Application: Consider what the complainant knew about the risk.

Logdon v DPP [1976] and Tuberville v Savage (1669)

• Point: Threats can be assault even if the weapon is not real (so long as the victim reasonably fears imminent force). Words can also negate an apparent threat.
• Application: Look closely at what the victim actually apprehended.

Practical Applications

• Start with the conduct:

  • Was there an act causing fear of imminent force? Consider assault.
  • Was there contact, even slight? Consider battery.
  • Did the conduct cause injury more than trivial? Consider ABH.
  • Is the harm really serious or a wound? Consider section 20 or section 18.

• Check the mental element:

  • Assault and battery: intent or subjective recklessness as to the fear or force.
  • Section 47: mens rea only for the basic assault/battery.
  • Section 20: intent or recklessness as to some physical harm.
  • Section 18: intent to cause GBH (or intent to resist arrest with wounding/GBH resulting).

• Assess the injury with evidence:

  • Medical evidence for ABH and GBH is often decisive. Use it to distinguish bruising/temporary unconsciousness (ABH) from fractures/serious long-term effects (GBH).
  • Psychiatric harm requires expert evidence; emotions alone are not enough.

• Consider consent and context:

  • Everyday contact and sport may be covered by consent; egregious or off-the-ball violence is not.
  • Medical procedures require valid consent.
  • Private sexual activity cannot be justified by consent where ABH/GBH is caused (subject to limited exceptions such as tattooing-like acts in Wilson).

• Indirect force and causation:

  • Do not overlook batteries via indirect means (DPP v K, Martin, Haystead).
  • For “occasioning” and “inflict”, use normal causation tests. Consider whether the victim’s reaction was reasonably foreseeable (Roberts; Lewis).

• Charging decisions and alternatives:

  • If intent to cause serious harm is doubtful, section 20 may be safer than section 18.
  • Where injuries are borderline between ABH and GBH, cross-check medical descriptions, age and vulnerability (Bollom), and any long-term effects.

• Exam and practice tips:

  • Identify actus reus and mens rea separately for each offence.
  • Be precise with definitions (e.g., what amounts to a wound).
  • Use named cases to support each element, not just the conclusion.
  • Remember that words can create or negate an assault.

Summary Checklist

• Assault: act causing reasonable apprehension of imminent unlawful force; no contact needed.
• Battery: any unlawful touching, however slight; can be indirect.
• ABH (s.47): assault or battery causing harm more than transient or trifling; psychiatric injury can qualify; mens rea only for the assault/battery.
• GBH/wounding (s.20): wound or inflict GBH; mens rea is intent/recklessness as to some physical harm; “inflict” means cause.
• GBH/wounding (s.18): wound or cause GBH with intent to cause GBH (or intent to resist arrest with wounding/GBH resulting).
• Wound: break in both layers of skin (Eisenhower).
• “Really serious harm”: assessed in context; consider age, health, and totality of injuries (Bollom).
• Consent: available for common assault/battery in limited settings (sport, medical), but not for ABH/GBH except narrow, recognised categories.
• Indirect force: sufficient for battery (DPP v K; Martin).
• Words and silence: can be assault (Ireland; Constanza); words can also negate a threat (Tuberville v Savage).

Quick Reference