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Offences Again the Person Act 25 mark essay
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The Offences Against the Person Act 1861 is outdated and in need of reform. Discuss [25]Assault is a common law offence and is charged under section 39 of the criminal justice act 1988 which
sets out the maximum sentence of 6 months imprisonment. The actus reus of assault is an act which
causes the victim to apprehend the immediate infliction of unlawful force and the mens rea of assault is
intention or recklessness to cause the victim to apprehend the immediate infliction of unlawful force. Battery
is also a common law offence which is charged under section 39 of the criminal justice act 1988 which also
sets out the maximum sentence of 6 months. The actus reus of battery is unlawful application of force and
the mens rea is intention or recklessness to apply unlawful force to another or realisation that there was a
risk of the force being applied. Although assault and battery are two separate offences they can be charged
together as common assault. S.47 Offences against the person act 1861 is when the defendant assaulted
the victim occasioning actual bodily harm. The actus reus of S.47 is an assault or battery occasioning ABH
and the mens rea of s.47 is intentionally or recklessly causing the victim to apprehend the immediate
infliction of unlawful force. S20 OAP act 1861 is unlawfully and maliciously wounding or inflicting any
grievous bodily harm upon any person, either with or without any weapon or instrument. The actus reus of
s.20 is unlawful wounding or inflicting GBH and the mens rea of s.20 is maliciously, interpreted as
intentionally or recklessly doing some harm. S18 OAP is unlawfully and maliciously wounding or causing
grievous bodily harm to any person with intent to do some grievous bodily harm to any person. The actus
reus of s.18 unlawful wounding or inflicting GBH and the mens rea is intention to do GBH.
The OAPA 1861 is over 150 years old and its structure is considered unsatisfactory, particularly as there is
no clear hierarchy of offences. The act contains three offences about poisons and noxious substances, four
about explosives and three about railways. The currently used sections are randomly sections 47,20 and
18 and between those, are other sections on matters as diverse as poisoning and kidnapping. The Llaw
Ccommission report “Reform of Offences Against the Person '' 2015 recommended that the OAPA 1861
should be replaced by a comprehensive modern state with a clear hierarchy of offences from the most
serious to the least . The law commission report also suggested that the structure proposed in the Home
Office’s Draft Bill should be followed. This proposed clause 1 of a new Act would replace s.18; clause 2
would replace s.20 and so on in terms of seriousness of the offence. This would result in a much clearer
structure and logical order to the law than what is currently the case.
The meaning of the word ‘’assault’’ has created confusion about the offences of assault and battery.
Theoretically in law, assault and battery have different meanings. Technically a pure assault is a threat of
force whereas a battery is an ap[plication of force. However there has been a modern trend to use
‘’assault’’ in a broad sense to include assault and battery. In section 47 OAPA 1861 includes both assault
and battery. It also refers to the injury caused to the victim. This causes confusion for both defendants and
juries.
Secondly, legally they are two separate offences but ‘’assault’’ or common assault is frequently used to
cover both. In Kracher 2013 the court held that the defendant was charged with assault by beating, but the
court could not find him guilty of technical assault causing apprehension of unlawful violence.
The Law Commission’s Report suggests that assault and battery cover two different forms of behaviour and
should be two distinct offences. The Commission proposed that an offence of physical assault should
replace the offence of battery. An offence of threatened assault should replace the common law offence of
assault. These recommended changes to the names of the offences would help avoid confusion in relation
to the use of the term assault.
The term bodily harm has also caused much criticism as it is used in S47, 20 and 18 but has no statutory
definition. For a example in R v Chan Fook, the courts said bodily harm should include depression for ABH
and in R v Ireland is was held that more serious psychiatric harm was required for a change of GBH under
S20/18, to ensure cases of stalking and harassment by electronic means could be criminalised. In R v Dica,
the notion of biological GBH
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