Reviewing the Law Commission’s Recommendations on the “Offences against the Person” 2015 Report (Part I)

Stavros Demetriou
Stavros Demetriou
  1. Introduction

In November 2015, the Law Commission published its proposed reforms on the “Offences Against the Person”, which are mainly covered by the Offences Against the Person Act 1861 (OAPA). This is not, however, the first time that the Commission has sought to review this area of law. In 1998, following the Commission’s previous recommendations, a draft bill was prepared by the Home Office. The 1998 draft bill sought to bring major changes by repealing the OAPA with a new Act of Parliament. Although prepared by the Home Office, the draft bill never made it to Parliament. Nevertheless, the Commission saw the draft bill as a foundation upon which future reforms should be based. It is important to bear in mind that neither the draft bill nor the Commission’s recommendations affect the current state of the law in this area.

This review, which is divided into two parts, will critically evaluate the Commission’s recommendations in this area. Part 1 will give an overview of both the current law and the Commission’s recommendations. In Part 2, the remainder of the Commission’s recommendations will be reviewed.

  1. The current law

This group of offences ranges from relatively minor assaults, the maximum penalty for which is six months of imprisonment, to grievous bodily harm (GBH) offences the maximum penalty for which is a life sentence.  What these offences have in common is the threat and/or use of non-fatal violence against other individuals. To better understand the gravity of these offences, a hierarchy amongst them can be formulated. This imaginary hierarchy is illustrated by Figure 1.1.

Starting with the lower end of the spectrum we have the common law offences of assault and battery which do not require the infliction of any harm. As we move up the ladder we have three general offences which require some sort of injury: (i) under s. 47 of the OAPA an individual will be liable ‘for an assault occasioning actual bodily harm’ (ABH); (ii) under s. 20 of the OAPA an offence is committed when GBH is inflicted upon another; and (iii) under s. 18 of the OAPA an offence is committed where the defendant maliciously wounded or inflicted GBH to another person.

Hierarchy

Although an imaginary blameworthiness hierarchy can be formulated (see figure 1.1), as will be discussed later on, drawing a precise distinction between these offences might not be as straight forward.

  1. The case for reform

Before reviewing the Commission’s recommendations, one must first examine whether the current law is in fact in need of reform primarily for two reasons.

First, the law in this area is primarily governed by the OAPA, which came into force more than 150 years ago. For the criminal law to be effective it must evolve in order to address current social needs. As such, one might question whether the OAPA is still fit for the job. Also, as noted by the Commission, most of the previsions of this Act have already been repealed by more recent pieces of legislation. As a result, only a handful of provisions that Act are still in force. In addition to this, assault and battery are still common law offences. What is problematic about this is that in order for someone to examine what the law in this area is, they must look at a number of different sources. Therefore, incorporating all of these offences under a single piece of legislation might bring clarity to this area and enhance our understanding of the law.

Secondly, the OAPA uses archaic language which might be difficult to understand for those without legal training. A more contemporary terminology is capable of enhancing the public’s understanding of the law by providing clear guidance as to what is prohibited and what is not. This will also give a clear indication to the public about the blameworthiness of the conduct under scrutiny and why they should morally refrain from offending. I will elaborate further on these arguments below.

  1. The Law Commission’s recommendations

Having explained why the law in this area is in need of reform I shall now turn my attention to the Commission’s recommendations, which can be summarised as follows:

  1. The current law in this area is obsolete and in need of modernisation.
  2. The OAPA must be replaced by a new Act of Parliament.
  3. The new Act of Parliament must establish a clear and rational hierarchy amongst those offences.
  4. A new offence is needed in order to bridge the gap between s. 47 and the common law offences of assault and battery.
  5. The new Act of Parliament should be based on corresponding rather than on constructive liability.

In the reminder of this short review I will examine these recommendations in more detail. The first two recommendations will be discussed in Part 1 and the last three will be scrutinised in Part 2.

4.1 The need for a fresh start

The Commission’s recommendations start from the premise that the law in this area is anachronistic and the time has come for a ‘fresh start’. According to the Commission, this fresh start can be best achieved through the introduction of a new Act of Parliament, which will adopt more contemporary terminology and address the problems associated with the current law.

In order to highlight the need for modernisation, the Commission used the common law offences of assault and battery as an illustration. Under the current law, assault consists of conduct which intentionally or recklessly caused another ‘to apprehend immediate and unlawful violence’. Battery, on the other hand, requires some form of physical and unlawful conduct between the defendant and the victim.

The Commission’s criticisms focused on the terminology used and the overall confusion as to the nature of the conduct proscribed by each offence. As to the former, it has been argued that the use of terms such as ‘apprehension’ might be problematic, since they fail to provide clear guidance as to the nature of the conduct proscribed. The Commission proposed the adoption of a simpler approach; replacing ‘apprehension’ with ‘belief’. At first sight, ‘apprehension’ in this context can be interpreted as ‘fear of immediate violence’. However, as stated by the Court of Appeal in Constanza, ‘fear of immediate violence’ is a sufficient but not a necessary condition in this context; ‘fear’ will be enough to satisfy the result element of the actus reus. There is no need for the victim to be afraid; realising the possibility of immediate violence will be enough.

Adopting a simpler terminology might not have any impact upon the way in which the law is enforced. However, according to the principle of ‘fair warning’, the drafting of the criminal law should be as clear as possible in order to enable the public to understand what is required of them or what they should refrain from doing.

As to the latter, reference was made to the fact that the term ‘assault’ is used in common language to describe what is legally defined as battery, causing uncertainty as to what kind of conduct is proscribed under each of those offences.  This can be partly attributed to the fact that ‘battery’ is rarely used in modern language and its use in this context can be misleading. The Commission criticised these offences as not being labelled appropriately and failing to accurately reflect the nature of the wrong committed. For that reason, changes to the label attached to each offence were proposed. The offence of battery should be relabelled as ‘physical assault’ where as for the offence of assault should be changed to ‘threatened assault’.

Compared to the current terminology, labels proposed by the Commission are more representative of the true nature of the conduct proscribed by each offence. The label assigned to each offence is very important due to the fact that it provides an indication as to the nature of the perpetrator’s conduct and the degree of blameworthiness attached to it. Attaching a ‘fair label’ to each offence is particularly important since it ‘ensure[s] a proportionate response to law-braking, thereby assisting the [criminal] law’s educative or declaratory function’ (A. Ashworth and J. Horder, Principles of Criminal Law (7th edn, OUP 2013) 77). In order for the criminal law’s response to be proportionate, the label attached to each offence must be representative of the nature of the conduct proscribed.

Stavros Demetriou is a PhD student at the Sussex Law School

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