Assault and S 47 of the Offences against the Person Act 1861
| Published date | 01 August 1995 |
| Date | 01 August 1995 |
| DOI | http://doi.org/10.1177/002201839505900307 |
| Subject Matter | Article |
ASSAULT
AND
S 47
OF
THE
OFFENCES
AGAINST
THE
PERSON
ACT
1861
Morayo
Atoki"
The omission
One
of
the issues raised in the
joint
appeal in Rv Savage;
DPP
v Parmenter
(1992) 94 Cr
App
R 193 was whether averdict
of
guilty
of
assault
occasioning actual bodily harm is a permissible alternative verdict on a
count alleging unlawful wounding contrary to s 20
of
the Offences Against
the Person Act 1861.I
The House
of
Lords was
of
the opinion
that
such substitution could be
made.? The House justified its reasoning by relying on the statutory
provisions
of
s 6(3)
of
the Criminal Law Act 1967 and s 3
of
the Criminal
Appeal Act 1968, and the House's decision in RvWilson (1983) 77 Cr
App
R 319. A question
not
addressed by the House
of
Lords,
but
vital to
its decision, was whether s 47
of
the 1861Act is to be regarded as an offence
of
assault or as an offence
of
battery.
The law draws aclear distinction between the two offences.' Both offences
are independent
and
are to be treated as such." Offences
of
assault are
constituted where the defendant causes the victim to apprehend the infliction
of
immediate unlawful force to his person.' Abattery is the actual and
unlawful touching
of
another person however slight." Nevertheless this
distinction has
not
been maintained by the courts. The term 'assault' has
been used broadly to include battery and the word 'battery' used to mean
assault. This clutter in terminology is prevalent in many
of
the decisions
over the years."
That
there should be maintained a legal distinction between
both
terms, and hence offences, was reaffirmed by the Law Commission in
its Consultation Paper."
The provisions
of
s 20
of
the 1861 Act clearly make
it
an offence
of
battery since there must be a touching (directly or indirectly)
of
the victim
by the defendant. In order to secure a conviction under s 20 the prosecution
must prove
that
the defendant's unlawful touching wounded or inflicted
grievous bodily harm on his or her victim." In contrast the exact requirements
• University of Buckingham.
IHereafter called 'the
1861
Act'.
2Per Lord Ackner, at p 205,who gave the leadjudgment.
JCollins v Wi/cock
[1984]
3 All ER, per
Goff
J, at p 377.
4Fagan v
MPC
[1968]
3 All ER 442, per James J, at p 445.
s Note 3 above. See also R v Rolfe (1952) 36 Cr App R 4, per Lord Goddard.
6Note 3 above.
7Most recently in RvBrown
[1993]
2 WLR 554.
8Law Commission Consultation Paper No 122, para 9.1. However, it recognised that the
term 'assault' was now used in both ordinary legal usage and in statute regularly to cover
assault and battery. See also per Lord Templeman (obiter) in R v Brown above, at p 557.
9R v Savage (1990) 91 Cr App R 317, CA.
299
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