Not Giving Up the Fight
| Author | Stavros Demetriou |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/0022018316646656 |
| Subject Matter | Articles |
The Journal of Criminal Law
2016, Vol. 80(3) 188–200
Not Giving Up the Fight:
ª The Author(s) 2016
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DOI: 10.1177/0022018316646656
Commission’s Scoping
clj.sagepub.com
Report on Non-fatal Offences
Against the Person
Stavros Demetriou
School of Law, Politics and Sociology, University of Sussex, Falmer, UK
Abstract
This article reviews the Commission’s 2015 recommendations on the non-fatal offences
against the person. Its analysis focuses on three main pillars: (i) it examines whether the
current law in this area is in need of modernisation; (ii) it asks whether the ‘ladder’ of
non-fatal offences should be reformed in the manner recommended by the Commission;
and (iii) it identifies and elaborates on issues which have not been adequately addressed
by the Commission in this project, albeit they constitute integral parts of the offences
against the person. This paper suggests that the Commission’s recommendations provide a
good starting point, but a more comprehensive review of this area is still required. It is
submitted that the reluctance of the Commission to deal in more depth with some
fundamental issues, such as the codification of the fault requirements, detracts from the
overall strength of this project.
Keywords
Non-fatal offences against the person, constructive and corresponding liability, recklessness,
consent, transmission of disease
Introduction
The non-fatal offences against the person encompass a wide variety of conduct, with offences
ranging from the most serious assaults causing grievous bodily harm (GBH) to everyday common
law assaults. The shared characteristic of these offences is the use and/or threat of use of violence
by the defendant (D) to the victim (V). Last year more than 1 million offences of this kind were
Corresponding author:
Stavros Demetriou, School of Law, Politics and Sociology, University of Sussex, Freeman Building, Falmer BN1 9QE, UK.
E-mail: s.demetriou@sussex.ac.uk
Demetriou
189
committed in England and Wales.1 However, despite the prevalence of these offences, and despite
the breadth of their application, the law is still governed by a statute that is over 150 years old.
Reform is certainly overdue.
In November 2015, the Law Commission published its latest recommendations on this area of law
within a Scoping Report.2 These recommendations were part of the Commission’s project initiated in
2014 through a Scoping Consultation paper which attracted a great deal of interest from both practi-
tioners and academics,3 but the full story of reform proposals started much earlier. Most importantly for
our purposes, the Commission’s Scoping Consultation, and indeed their Scoping Report, are explicitly
based on a Home Office draft bill (the draft bill) published in 1998.4 This draft bill (itself based on the
Commission’s 1993 recommendations) sought to bring major reforms in this area of law by replacing the
Offences Against the Person Act 1861 (OAPA) with a new Act of Parliament.5 Although the draft bill
recommendations were never taken forward by government, the Commission are not giving up the fight.6
This article provides comment on the Commission’s latest recommendations over three parts. I will
start my analysis by assessing the Commission’s claim that the OAPA is an outdated statute in need of
reform and modernisation. This appears to be the least controversial of the Commission’s arguments, but
it is an essential premise to reform and requires some brief discussion. Next, I will focus on Commis-
sion’s recommendations relating to reform of the ‘ladder’ of core non-fatal offences, asking whether the
Commission’s recommendations can achieve coherence and clarity. Following on from this, I will
reflect on issues which have not adequately been dealt with by the Commission although central to this
group of offences. In particular, it will be argued that a number of grey areas have been created through
the case law and a project of this nature should have dealt with those grey areas in more detail. I conclude
by asking whether the Commission’s recommendations should be taken forward, and whether they are
likely to be taken forward.7 But I also reflect on the opportunities missed, concluding that even if the
Commission’s recommendations are enacted, further consideration and reform will still be required.
The Need for Modernisation
The Commission’s recommendations start from the premise that the OAPA is an outdated statute and it
should be repealed by a modern piece of legislation.8 This is illustrated by the fact that a significant
number of offences created under the OAPA have already been repealed by subsequent legislation
rendering most of its provisions unenforceable.9 For the Commission, however, the main cause for
concern in this context are the provisions which are still in force. In particular, it has been argued that
the current law in this area is obsolete and in need of modernisation.10 This need for modernisation can
be divided over three levels: (i) in terms of the terminology adopted; and (ii) in terms of trimming
unnecessary or obsolete offences, (iii) in terms of reform to the ladder of core offences against the
person. I focus on the first two of these in this part, with the last addressed in the next part of this paper.
As far as the former is concerned, it has been argued that the terminology used by the OAPA is
archaic and this causes uncertainty as to the true meaning of certain terms.11 For example, the
1. Office for National Statistics, Crime in England and Wales: Year Ending June 2015 (2015) 22. Available at: http://
www.ons.gov.uk/ons/dcp171778_419450.pdf (accessed 7 February 2016).
2. Law Commission, Reform of Offences Against the Person, Cm 361 (2015).
3. Law Commission, Reform of Offences Against the Person: A Scoping Consultation Paper, Cm 217 (2014).
4. Home Office, Violence: Reforming the Offences against the Person Act 1861 (Home Office: London, 1998).
5. Ibid.
6. Above n. 2 at para. 1.3.
7. Law Commission, Eleventh Programme of Law Reform, Law Com. No. 330 (2011) at para. 2.64.
8. Above n. 2 at para 1.4.
9. Ibid. at para 1.4.
10. Above n. 7 at para. 2.63.
11. Above n. 2 at para 1.15.
190
The Journal of Criminal Law 80(3)
Table 1. The proposed reforms by the Commission in relation to the current law.
The current law
The Commission’s scheme
Offence
Offence
committed Actus reus
Mens rea
committed
Actus reus
Mens rea
s. 18
Cause wounding or
Intention to cause GBH Clause 1
Cause serious
Intention to cause
GBH to V
injury to V
serious injury
s. 20
Cause wounding or
Intention or recklessness Clause 2
Cause serious
Recklessly causing
GBH to V
as to causing any harm
injury to V
serious injury
s. 47
Common assault
Intention or recklessness Clause 3
Cause injury to V
Intentionally or
causing ABH to V
as to the common
recklessly
assault
causing injury
Aggravated Cause injury to V
Intentionally or
assault
recklessly causing
a common assault
Common
D unlawfully touches D intentionally or
Physical
D unlawfully
Intention or
assault
V or D causes V
recklessly touches V,
assault
touches V
recklessness
to apprehend
or D intentionally or
Threatened D causes V to
Intention or
immediate
recklessly causes V to
assault
apprehend
recklessness
unlawful violence
apprehend immediate
immediate
personal violence
unlawful
violence
Commission highlights the offences of assault and battery; common assault. Under the current law, an
assault consists of a conduct which intentionally or recklessly causes another ‘to apprehend immediate
and unlawful violence’;12 whilst battery, on the other hand, requires some sort of physical and unlawful
contact between the defendant and the victim.13 Although at first sight there is a clear distinction
between the two common law offences in terms of the actus reus required for each of them, the terms
‘assault’ and ‘common assault’ are used interchangeably, causing uncertainty as to their true nature. This
can be partly attributed to the fact that ‘battery’ is rarely used in modern language and its use in this
context appears to be misleading.14 For the Commission, therefore, these offences are not labelled
correctly, with the labels employed failing to provide a clear indication as to the nature of the wrong
proscribed by each of them. To address this poor labelling, the Commission suggests that the labels
attached to each offence should be amended. For battery, the suggested label is ‘physical assault’
whereas for ‘assault’ the proposed label is one of ‘threatened assault’ (see Table 1).15 Both seem entirely
sensible recommendations.
The label assigned to an offence provides an indication as to the nature of the perpetrator’s conduct
and the degree of blameworthiness that is attached to it.16 Attaching a ‘fair label’ to each offence is
particularly important since it ‘ensure[s] a proportionate response to law-breaking, thereby assisting the
[criminal] law’s educative or declaratory function’.17 Criminal law does not only punish the wrongdoer
for his conduct, but it also condemns both the offender and the wrong committed.18 For condemnation to
12. R v Ireland [1998] AC 147 at 150.
13. Ibid. at 444–5.
14. Above n. 2 at para 5.13.
15. Ibid. at para 5.29.
16. J. Chalmers and F. Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71(2) Modern Law Review 217–46 at 221.
17. A. Ashworth and J. Horder, Principles of Criminal Law, 7th edn (OUP: Oxford, 2013) 77.
18. A. Ashworth and L. Zedner, ‘Preventive Orders: A Problem of Undercriminalisation?’ in...
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