Non Fatal Offences


Non Fatal Offences key issues Non Fatal Offences key issues    S20 and S18 Case list S20 and S18 Case list Assault cases Assault cases Battery Cases Battery Cases Actual Bodily Harm Cases Actual Bodily Harm Cases Non Fatal Offences Diagram Non Fatal Offences Diagram Evaluation of Non Fatal Offences Evaluation of Non Fatal Offences 


Non Fatal Offences (NFO)



Common injuries to look out for in a problem question


Note: Remember if there is no contact between D and V and no ‘bodily harm’ it can only be an assault.

Common Assault:


S47 Assault occasioning actual Bodily Harm

Section 18 and S20 GBH or wounding

Grazes or scratches

Loss or breaking of a tooth

Injury causing permanent disability or disfigurement.


Temporary loss of consciousness

Broken bones

Minor bruise


Extensive or multiple bruising,

E.g. if fall’s down or downstairs as a

Result of a D’s touch or V’s apprehension of violence.

Dislocated joints


Displaced broken nose

Injuries causing substantial loss of blood

Reddening of the skin

Minor fractures

Injuries resulting in lengthy treatment

Superficial cuts

Minor cuts requiring stitches


A black eye

Psychiatric injury – more than fear, distress and panic

Severe psychiatric injury – more than fear, distress or panic, and requiring specialist treatment.










Click here for CPS charging standards. Remember these are NOT the law bust how the state normally charges certain injuries.

Click this link to look at the specific wording of the Offences Against the Person Act 1861.


Introductory Video:



Assault and Battery – Common assault


Assault and battery were traditionally common law offences and all the principles still derive entirely from decided cases in accordance with common law principles. The offences are, however, recognised by statute law and s39 of the Criminal Justice Act 1988 (CJA 1988) provides that they be tried summarily with a maximum sentence of six months’ imprisonment or a fine. Little (1992) ruled that the offences should be considered statutory offences despite the fact that s39 does not provide any definitions but only fixes the penalty and tariff.



 Introductory video:




In Ireland; Burstow (1997) the House of Lords confirmed that an assault is committed when the accused intentionally or recklessly causes the victim to apprehend immediate and unlawful violence.


The actus reus of assault is:


1. An act

2. Causing the victim to apprehend immediate and unlawful violence.




An act


An act or words from the defendant must cause the victim’s apprehension. In Constanza (1997) the court ruled that words alone were sufficient for an assault. It was held that the contents of those letters were assaults since the victim read them clearly as threats, even though there was no reinforcing physical gesture. It follows that e-mails and texts and all other forms of written communication can also constitute assaults.

In R v Burstow (1997) it was ruled that silence could amount to an assault in the form of silent telephone calls made by the accused to the victim.


However, the words of the D can stop the act from forming an assault as in Tuberville v Savage. Though it will depend on the acts the D does as to whether the assault takes place anyway. In the case of Light (1857), where even though D said he would not strike his wife with a sword as a police officer was outside the house, the act of holding the sword above her head meant the assault could not be stopped.


Causing the victim to apprehend immediate and unlawful violence




If the victim does not apprehend immediate force then an assault has not been committed, as in the case of Lamb (1967), where the V thought the gun was empty so did not foresee immediate force. However, as long as the V foresees immediate force it is irrelevant as to whether or not the D has the means or intention to carry out the threat, as per Logdon v DPP (1976).




The courts have adopted a liberal meaning of immediate to achieve justice for victims of harassment and stalking campaigns. In R v Burstow (1997) the House of Lords ruled that the case for immediacy was proved if the conduct of the accused caused the victim to apprehend the ‘possibility’ of an immediate attack, as long as the V’s belief is genuine even though it may not be rational.


In Smith v Chief Superintendent of Woking Police Station (1983) immediate was held not to not mean the same as ‘instantaneous’.


Mens rea of assault


The mens rea of assault is a direct intention or subjective recklessness as to causing the victim to apprehend immediate and unlawful violence (R v Venna).




 Introductory video:




Actus reus


The actus reus of battery was stated in Ireland; Burstow (1997) as the application of unlawful physical force on another. The victim does not have to suffer any pain or injury.


In Collins v Willcock (1984) it was decided that ‘any touching of another person, however slight, may amount to a battery’. A slap, a kiss, throwing a drink over someone and even touching the victim’s clothes has been suggested as meeting the requirements of a battery (R v Thomas 1985).


Unlawful physical force


The fact that the victim has not consented to the battery will usually make the act unlawful through the slightest touch, Cole v Turner. Certain force is lawful even without consent such as the reasonable force applied in self-defence or reasonable force when arresting a suspect, Collins v Willcock (1984).


However Lord Goff in Collins v Willcock also made it clear that:


“Most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped.”


Any force outside what is normally expected can therefore be classed as unlawful.


Indirect batteries – this is an AR issue


Most batteries are force applied directly by one person to another. However it has also been held that unlawful force can be applied without directly touching the V, such as in the case of DPP v K (1990). In Haystead v Chief Constable of Derbyshire (2000), the accused punched a woman, causing her to drop her baby. The court held that the defendant had effectively used the woman as a weapon to injure the baby and he was held liable.




Unlike assault, a battery can be committed by an omission but only where there is a duty to act. This limits the scenarios where omission might be relevant but there is one interesting reported case where the defendant had created a dangerous situation and then failed to act. In Santana-Bermudez (2004) the accused was asked, but failed, to inform a police officer searching him that he had a hypodermic needle in his pocket. The officer was injured when she put her hand in his pocket and the court ruled that his failure to tell her of the needle satisfied the requirements of the actus reus.




Mens rea of battery


The mens rea of battery was confirmed in Venna (1976) as the direct intention or subjective recklessness to apply force to another.


It is important to note that the intention or recklessness is only required for the act of physical contact itself and not in respect of harm that might arise from such contact.


Assault Occasioning Actual bodily Harm (ABH)

Section 47 Offences Against the Person Act 1861

 Introductory video:



Actus reus


As you have seen at AS, the key elements in the actus reus are the words:

  1. Assault
  2. Occasioning
  3. Actual bodily harm.




The term ‘assault’ under s47 means either an assault or a battery according to the cases and principles set out for common assault above.




An assault or battery will only be charged under s47 if it occasions actual bodily harm, in other words the assault or battery must cause further harm. Occasion has been held in the case of Roberts (1971) to mean cause and is concerned with the rules of causation. In this case the court ruled that the chain was still intact since her actions could ‘reasonably have been foreseen as the consequence of what he was saying or doing.’ The judgement recognised that a victim will not necessarily act in a sensible manner in a moment of fright but added that a defendant might not be held responsible if the victim does something ‘daft‘ or unexpected that no reasonable man could be expected to foresee.


Where the accused directly physically attacks their victim then causation is immediately established and no further discussion is required.


Actual bodily harm


The word ‘actual’ refers to the fact that, unlike common assault, there must be some form of physical or psychological injury caused to the victim. Assault occasioning actual bodily harm can be very minor harm and indeed was described in Miller (1954) as ‘any hurt or injury calculated to interfere with the health or comfort of the victim‘ provided it is more than ‘transient and trifling‘.


The definition of actual bodily harm was extended to hair being cut without the consent of the victim in DPP v Smith (2006), where the court determined that hair was to be treated as part of the body and noted that cutting a woman’s hair without her consent is a ‘serious matter amounting to actual (not trivial or insignificant) bodily harm’. It was also stated, obiter, that if paint or a similar material was put on the hair, that could also be actual bodily harm. In T v DPP (2003) loss of consciousness, even momentarily, was held to be ABH.


Psychiatric as well as physical harm can be regarded as actual bodily harm and this was confirmed in Chan Fook (1994). The Court of Appeal ruled that the term actual bodily harm could cover psychiatric harm but only if medical experts could prove that the state of mind caused in the victim was evidence of an identifiable clinical condition and ‘mere emotions such as fear, panic and distress‘ when unrelated to such a condition would not be considered actual bodily harm.


Mens rea of ABH


The mens rea is intention or subjective recklessness as to causing the victim to apprehend immediate unlawful violence, or intention or recklessness as to the application of unlawful force.


The crucial point to note here is that no extra mens rea need be proved as regards the harm caused by the assault or battery. The accused does not have to have intended or even had foresight of the slightest bodily harm provided that he intended or had foresight of the actual assault or battery itself and that this assault or battery caused the harm.


The combined House of Lords appeal of Savage; Parmenter (1992) confirmed that the mens rea for common assault (The MR of assault or battery) is sufficient to establish the mens rea for a s47 offence. This can be seen in the following cases:


R v Savage (1992)     The Court of Appeal held that the P only had to prove an intention or recklessness as to throwing the beer over the V (The MR of battery) and that this occasioned the cut to the V’s wrist.


R v Roberts (1971)    Where the defendant had the mens rea for the battery as he had intended to touch the girl’s coat and it was irrelevant that he had not intended nor had foreseen the fact she might suffer minor injuries.


DPP v Parmenter (1992)       Where defendant had played with his son so roughly that he had caused injuries to him. As long as the P proved the mens rea of battery foresight of the further injuries did not need to be proved.


Malicious Wounding (S20)

Section 20 Offences Against the Person Act 1861

 Intrroductory video:


Actus reus


As has been seen at AS, the offence can be committed in either of two ways:

  1. Unlawful wounding, or
  2. Unlawful infliction of grievous bodily harm.


The defendant is charged with wounding or grievous bodily harm.




A wound takes place when both layers of the skin are broken and there is usually blood loss. In JCC v Eisenhower (1983) the court held that there must be ‘a break in the continuity of the skin‘ to constitute a wound for the purposes of s20 and internal bleeding was not sufficient. Scratches, abrasions and burns will not be considered wounds (unless the second layer of skin is broken) and nor will broken bones and internal ruptures. The definition of ‘skin’ includes the inner lining of cheeks and lips. This definition leads to the strange conclusion that a pin prick to the skin that draws blood can be classed as a wound.


Grievous bodily harm


In DPP v Smith (1961) the House of Lords ruled that ‘grievous’ means no more and no less than ‘really serious’. In Saunders (1985) it was held that ‘serious harm’ would suffice and the word ‘really’ was not necessary. R v Bollom (2004) ruled that the victim being elderly or a child is relevant to the seriousness of the harm since their injuries will tend to more serious than the same injuries to a ‘six foot adult in the fullness of health’.


If the victim suffers minor injuries which, taken as a whole, amount to serious harm then this has been held to constitute grievous bodily harm despite the fact that the injuries viewed separately would not satisfy the seriousness required for s20. This was decided in Brown and Stratton (1998), where the victim was beaten and suffered multiple injuries including concussion, bruising, lost teeth and a broken nose


Psychiatric harm can be grievous bodily harm provided that it is sufficiently serious (R v Burstow (1997)).


GBH was developed to include ‘biological’ grievous bodily harm in R v Dica (2004), where the defendant was knowingly suffering from HIV and infected two women through consensual sex. Dica was convicted and the court ruled that Clarence (1888) ‘should have no further relevance’ in cases where the defendant knows that they are suffering from HIV or some other serious sexual disease and recklessly transmits it to the unknowing victim through consensual intercourse.




The grievous bodily harm must be ‘inflicted’ upon the victim. It had been argued in the past that ‘inflict’ has a narrower meaning than ‘cause’ used in s18 in respect of wounding and grievous bodily harm with intent. At its narrowest interpretation in Clarence (1888) ‘inflict’ was understood to need an assault or battery requiring the application of direct force. In this case the court held that the defendant had not inflicted grievous bodily harm on his wife when he infected her with gonorrhea on the basis that her consent to sexual intercourse meant that there had not been a battery.


In other cases the courts had taken a much wider view of the word inflict meaning there was no need to prove an application of direct force. In the case of R v Martin (1889) the court held that the D shouting fire in a theatre when he had locked all the exits was an infliction of GBH on the V’s who were seriously injured.


The current meaning of inflict was decided in R v Ireland (1997), where the House of Lords ruled that there was no necessity to apply direct or indirect force. The prosecution only needed to prove that the defendant caused the victim to suffer grievous bodily harm. Lord Hope added that for practical purposes ‘the words ‘cause’ and ‘inflict’ may be taken to be interchangeable. GBH can therefore be inflicted directly or indirectly such as in Martin.


Mens rea


The wounding or grievous bodily harm must be done ‘maliciously’ but it was confirmed in Cunningham (1957) that this merely means that the defendant must intend to inflict the harm or be subjectively reckless as to whether such harm might occur. The leading case of R v Mowatt (1976) established the crucial principle that the prosecution does not have to prove that the defendant intended or foresaw the wound or the grievous bodily harm. Lord Diplock stated in his judgement:


‘It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.’


In DPP v A (2000), where a 13-year-old boy had mistakenly shot his friend in the eye whilst meaning to fire below knee level. It was stressed in this case the P only have to prove that the D foresaw that some harm might occur, NOT would occur.


Grievous Bodily Harm with intent (S18)

Section 18 Offences Against the Person Act 1861

 Introductory video:



This is a much more serious offence than s20, despite the similarities in language.


Actus reus


The actus reus is unlawfully wounding or causing grievous bodily harm to the victim. The meanings of the words ‘wound’ and ‘grievous bodily harm’ are exactly the same as for s20 and the defendant needs only to ‘cause’ these injuries with the normal rules of causation applying.


Section 18 also covers wounding and causing grievous bodily harm when resisting arrest and this charge will be preferred where it might be easier to prove that the defendant intended to resist arrest than prove that he intended to cause grievous bodily harm.


Again, the wound or grievous bodily harm must be unlawful and the cases defining a wound and GBH are the same as s20.







Mens rea


The P has to prove the D had a direct intention to cause GBH or a wound OR P has to prove an indirect intention to cause GBH or a wound as per R v Belfon 1976.


The vital difference between s20 and s18 is the level of mens rea. Recklessness is sufficient to establish mens rea for s20 but only intention will suffice for s18. Furthermore, it is not enough to intend some harm, but instead prosecution must prove that the defendant intended to cause grievous bodily harm.


If it appears D had one aim in mind but another consequence also was caused (oblique intention) then the P have to prove the 2-stage test in Woollin 1998:


  1. P must prove that GBH or a wound was a virtually certain outcome of the D’s actions AND
  1. P must prove that D appreciated that his actions would cause GBH or a wound as a virtual certainty.


You MUST apply this test at least once when answering a scenario that includes consideration of S18.


If the D is charged on the basis of intending to resist arrest the MR is different. The P must prove:


  1. The D intended to resist arrest and
  2. The defendant will be liable if they foresee (as opposed to intend) that serious harm might result from their conduct.





Evaluation of Non Fatal Offences




A Law Commission Report published in 1993 described the OAPA 1861 and law of common assault as ‘inefficient as a vehicle for controlling violence’ where ‘many aspects of the law are still obscure and its application erratic’. It is routinely criticised as being chaotic, unjust, irrational, outdated and unclear.




Obscure and old fashioned




The essential problem lies with the fact that the OAPA 1861 is Victorian legislation that was never intended to be a logical and consistent set of rules applying to non-fatal offences. Instead, it was a piece of legislation that simply brought all the then applicable laws into one Act, called a consolidation act. Hence the sections are randomly ss47, 20 and 18 because the Act also includes other sections setting out the law on matters as diverse as poisoning and kidnapping. As a consequence there is no uniformity of language used between the sections and nor is there a coherent hierarchy in respect of the seriousness of the offences. Matters are made worse by the fact that the legislation suffers from poor drafting allowing a woeful lack of explanation of mens rea and failure to define terms, such grievous bodily harm and malicious. To add to this the basic problem that the courts are having to apply a piece of legislation drafted in the reign of Queen Victoria to situations created in a very different modern society, for example stalking and harassment.








Key words and phrases used in ss47, 20 and 18 are not defined in the statute so need to be explained through case interpretation. It is not appropriate that statutory offence terminology such as ‘actual’, ‘grievous’ and ‘bodily harm’ is continually evolving through cases and appeal processes and this can only lead to inconsistent decision making.




The word ‘assault’ is used inconsistently by those drafting the relevant legislation and there are no clear statutory explanations as to what is meant by an assault or a battery. The term ‘common assault’ is correctly understood to mean both of the distinct offences of assault and battery. This confusing use of terminology is compounded by vague drafting, which results in s39 of the CJA 1988 referring to ‘common assault and battery’ but s40 of that Act only referring to ‘a common assault’. Section 47 of the OAPA 1861 only uses the word ‘assault’ when this is also meant to cover battery.






Another criticism is that much of the language is old fashioned, badly drafted and used inconsistently. An example is the use of the word ‘maliciously’ at ss20 and 18, which is not defined in the Act. It was interpreted in R v Cunningham (1957) to cover recklessness but its usual and modern meaning would usually imply bad motive and wickedness. Furthermore, whilst ‘maliciously’ provides the only clues as to mens rea under s20 it has an unclear purpose in s18, where the mens rea is made clear by the words ‘with intent’.




The use of the word ‘inflict’ in respect of grievous bodily harm under s20 as opposed to ‘cause’ in s18 has also been subject to criticism. ‘Inflict’ was originally understood to have a narrower meaning than ‘cause’. At its narrowest interpretation in Clarence (1888) ‘inflict’ was understood to need an assault or battery requiring the application of direct force. In this case the court held that the defendant had not inflicted grievous bodily harm on his wife when he infected her with gonorrhoea on the basis that her consent to sexual intercourse meant that there had not been a battery.




In other cases the courts had taken a much wider view of the word inflict meaning there was no need to prove an application of direct force. In the case of R v Martin (1889) the court held that the D shouting fire in a theatre when he had locked all the exits was an infliction of GBH on the V’s who were seriously injured.




The meaning of inflict was finally decided in R v Ireland (1997), where the House of Lords ruled that there was no necessity to apply direct or indirect force. The prosecution only needed to prove that the defendant caused the victim to suffer grievous bodily harm. Lord Hope added that for practical purposes ‘the words ‘cause’ and ‘inflict’ may be taken to be interchangeable 




The meaning of ‘wounding’ is also not set out in the Act and case law has provided that it means a breaking of both layers of the skin (Eisenhower). This does not match the normal understanding of the word and, as pointed out earlier, this means that a person can be charged under s20 for wounding by merely pricking their victim’s finger with a pin. However, the Charging Standard recommends that such minor injuries including small cuts and lacerations would be more appropriately charged under s47. It must be remembered, however, that the Charging Standard is designed only as a set of guidelines to assist prosecutors to choose the appropriate charge. It is not legally binding upon the courts and liability, once the charge is determined, will be decided in accordance with statute and case authority.








Hierarchy of seriousness




Section 39 of the CJA 1988 and ss47, 20 and 18 were not designed to work as one coherent hierarchy of offences. Accordingly, there is not a logical sentencing structure that reflects the seriousness of each offence, known as the ladder principle. Lord Bingham has recently put it that ‘ the interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than he deserves or acquitted altogether, so he receives no punishment at all.’




There is a potential for overlap between s39 of the Criminal Justice Act (CJA) 1988 and s47 since the threshold of harm that qualifies as actual bodily harm is set very low and includes all harm (save for serious harm and some wounds) that is considered more than ‘transient and trifling’ (R v Miller (1954)). Injuries at the lower scale of s47 and those charged under s39 of the CJA 1988 are morally similar and the significant disparity between the respective sentences of five years and six months is therefore unjust.




Even more surprising is the fact that although grievous bodily harm is a much more serious offence than actual bodily harm, the maximum sentence for both s20 and s47 is five years. The sentence then jumps to life imprisonment for s18, which might seem a disproportionate increase when the difference between the two offences is one of motive only, as the harm requirement is the same.




Mens rea




Two of the offences under the OAPA have been interpreted by the courts as using the principle of constructive intention where the P only have to prove the MR of a lesser offence which is then taken to prove the culpability of the D for the more serious offence.




According to R v Roberts (1971) a person is liable for actual bodily harm under s47 where there was only recklessness or intention as to causing a Common Assault. Similarly under R v Mowatt (1976) liability for grievous bodily harm will arise where the defendant intended only minor harm or was reckless as to the fact that some physical harm might be caused to some person. This has been criticised as failing to match the punishment to the culpability of the defendant and is therefore seen as unjust.




Out of date

Task: Watch the videos at the attached link and answer the following:

  1. How has the government tried to amend the law on stalking?
  2. Quote at least one statistic about stalking offences
  3. Why has the new law been ineffective?
  4. How does the criticisms of Non Fatal Offences link to the law on stalking?



The legislation was drafted in a different age and needs updating to modernise the language and to better reflect the concerns of modern society. Lord Steyn commented in Ireland; Burstow (1997) that ‘the Victorian legislator ... would not have in mind psychiatric illness’ but illnesses affecting the mind are now an established area of medical health and legislation needs to reflect this. Remember that the telephone was not invented in 1861, let alone e-mail and text! Judges have found ways to establish liability for psychiatric harm in the stalking cases (e.g. Constanza) but the liberal interpretations they imposed upon the wording of the Act in order to achieve this have been the subject of much criticism.




Stalkers can now be prosecuted under the Protection from Harassment Act 1997 as opposed to the OAPA 1861. This Act provides that a person will be sentenced to up to five years imprisonment if convicted of ‘a course of conduct (which) causes another to fear, on at least two occasions, that violence will be used against them.’




Judges also had to strain interpretation to convict the defendant for grievous bodily harm in Dica (2004). The Act is not suitable to deal with the prevention of the spread of Aids or indeed any other sexually transmitted diseases.








Widespread criticism of the legislation governing the non-fatal offences led to the Criminal Law Revision Committee publishing proposals for reform in 1981. These proposals formed the basis of the Law Commission Report 1993 and an attached draft Bill that was never put before Parliament. The new Labour government produced a draft Bill in 1998 essentially in the same form as the Law Commission Bill. The 1998 draft Bill includes the following proposals:




    1. Statutory definitions are provided for assault and battery.




    1. Section 47 is replaced by the offence of intentionally or recklessly causing injury to another person with a maximum prison sentence of five years. Prosecution will no longer need to prove that the injury was caused by an assault or battery. ‘Injury’ is defined to mean ‘physical injury’ which includes pain, unconsciousness and any impairment of a person’s physical condition and also ‘mental injury’, which includes any impairment of a person’s mental health.




    1. Sections 20 and 18 are replaced by the separate offences of recklessly causing a serious injury to another and intentionally causing a serious injury to another. The maximum prison sentences are seven years and life imprisonment respectively. There is no longer any reference to wounding so the problem that a minor wound can be charged under these sections is removed. The troublesome word ‘inflict’ is removed and all references are to ‘caused’.




    1. The harm intended or foreseen must correspond to the offence committed contrary to the mens rea principles in Roberts (1971) and Mowatt (1976). Accordingly, the reckless defendant will only be convicted under the new s47 if he has foresight of the injury as opposed to the battery that caused it and he must have foresight of serious injury to be convicted for grievous bodily harm.




    1. Save for the offence of intentionally causing serious injury, ‘physical injury’ does not include disease and therefore a person will only be liable if he intends to infect another with a serious sexual disease and reckless infection will not be an offence.

    2. Intention and recklessness are defined.



Task: Summarise the evaluation and reform of Non Fatal offences on the attached worksheet worksheet.






The draft Bill is clearly an improvement but has, nevertheless, attracted criticism. Such criticism includes the argument that the offence replacing s47 should also be divided into two separately punishable offences based on recklessness or intent, as there is no logic as to why the different mens rea should only be relevant to serious injuries. Furthermore, the definition of ‘injury’ still fails to establish a clear dividing line between what might constitute an injury and what would be charged as the lesser charge of assault. ‘Serious’ is still not defined and the term ‘assault’ continues to be used to mean both an assault and a battery.




In his forward to the 1998 draft Bill; the Home secretary pledged his government’s commitment to modernising and improving the law. The Bill has yet to be enacted and the courts are still relying upon the OAPA 1861.




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