24.2 Non-Fatal Offences Against the Person
Key Takeaways
- Assault is causing the victim to apprehend immediate unlawful force; battery is the actual application of unlawful force; neither requires a visible injury.
- OAPA 1861 s.47 is an assault or battery that occasions actual bodily harm; the only mens rea needed is that of the assault or battery.
- OAPA 1861 s.20 requires a wound or infliction of grievous bodily harm, with intention or subjective recklessness as to some physical harm.
- OAPA 1861 s.18 requires a wound or causing grievous bodily harm plus a specific intent to cause grievous bodily harm or to resist or prevent lawful apprehension.
- A wound is a break in the continuity of the whole skin; grievous bodily harm is really serious harm and can include serious psychiatric injury.
24.2 Non-Fatal Offences Against the Person
Quick Answer: FLK2 lists four rungs: assault (apprehension of immediate unlawful force), battery (application of unlawful force), OAPA 1861 s.47 (assault or battery occasioning actual bodily harm), s.20 (malicious wounding or inflicting GBH) and s.18 (wounding or causing GBH with intent). Climb the ladder by injury first, then by fault. Independent OpenExamPrep study treats these as England and Wales offences a newly qualified solicitor must apply to client facts.
Why the ladder matters in practice
A police-station client who slapped someone, a client who glassed someone, and a client who swung a crowbar intending to maim are not the same charging problem. The SRA specified list is short and closed: common assault (assault and battery) and OAPA 1861 ss.47, 20 and 18. Do not invent a separate statutory offence of common assault causing psychiatric harm, and do not reach for offences outside the list (threats to kill, harassment, modern slavery) unless the question has clearly left Criminal Liability.
CPS charging standards are a practice overlay. SQE1 still tests legal ingredients. A broken nose can be charged as ABH as a matter of charging policy; legally you still ask whether the harm is actual bodily harm, a wound, or really serious harm, and what D intended or foresaw.
Assault and battery (common assault)
Assault is any act by which D intentionally or recklessly causes V to apprehend immediate unlawful personal force. There need be no touching and no injury.
- Words, silent telephone calls and letters can amount to assault if they cause that apprehension.
- Immediate does not mean instantaneous. A threat of force in a matter of seconds or minutes, with D nearby or apparently able to carry it out, can suffice. A threat of force next week usually will not.
- Words can also negate an assault: a raised fist coupled with I would hit you if it were not for the police standing there does not cause apprehension of immediate force.
- Pointing an imitation firearm can be assault if V does not know it is fake.
Battery is the actual application of unlawful force, however slight, done intentionally or recklessly. Touching clothes is enough. Force can be indirect (D causes a panic in a crowded doorway; D strikes a person holding a child and the child hits the floor).
Hostility in the sense of a fight is not required. The force must be unlawful. Everyday jostling on a train, tapping someone to get past, and other generally acceptable contact is not a battery. Consent to ordinary social touching is implied. Once harm reaches ABH, consent is tightly limited (recognised sport, surgery, tattooing and piercing, some horseplay). Adults cannot generally consent to being beaten for sexual gratification once the harm is ABH or worse.
Mens rea for both assault and battery is intention or subjective recklessness as to the apprehension (assault) or the application of force (battery). Neither offence requires D to intend injury.
Common assault is charged under the Criminal Justice Act 1988, s.39. It is summary-only. That is why the 1981 Act attempt regime does not apply to it.
OAPA 1861 s.47 — assault occasioning actual bodily harm
Actus reus: an assault or a battery that occasions (causes) actual bodily harm.
ABH is any hurt or injury that interferes with health or comfort and is more than transient or trifling. Bruising, minor fractures, loss of consciousness, cutting off a substantial amount of hair, and psychiatric injury that goes beyond fear, distress or panic can all be ABH. Mere emotions without a recognised psychiatric condition are not.
Mens rea is the sting. The Crown must prove the mens rea of the assault or battery. The Crown does not have to prove that D intended or foresaw actual bodily harm. A defendant who intends only to slap V, and who causes unexpected bruising, still commits s.47 if the slap was an intentional or reckless battery and the bruising is ABH.
Occasioning is ordinary causation. If V's injury comes from a reasonably foreseeable response to the assault (falling, running into a door while fleeing), the chain usually holds.
OAPA 1861 s.20 — malicious wounding or inflicting GBH
The section makes it an offence unlawfully and maliciously to wound or inflict grievous bodily harm.
| Term | Meaning in England and Wales |
|---|---|
| Wound | A break in the continuity of the whole skin. An internal rupture of a blood vessel in the eye, with no break of the skin, is not a wound. A deep cut that splits the skin is. |
| Grievous bodily harm | Really serious harm. It need not be permanent or life-threatening. Serious psychiatric injury can be GBH. Infecting V with a serious disease can be GBH. |
| Inflict | Can be done without a technical assault; causing GBH is enough in substance. |
| Maliciously | Intention to cause some physical harm, or subjective recklessness as to some physical harm. D need not intend or foresee a wound or GBH. |
So: D swings a belt intending only a sting, foresees some harm, and V loses an eye. That can be s.20 even though D did not want really serious harm. If D foresaw no harm at all, s.20 fails (though s.47 may still be available if there was a battery and ABH resulted).
Unlawfully excludes justified force (self-defence, properly conducted sport).
OAPA 1861 s.18 — wounding or causing GBH with intent
s.18 is the top non-fatal rung. D unlawfully and maliciously wounds or causes GBH with intent to do GBH, or with intent to resist or prevent the lawful apprehension or detainer of any person.
Two differences from s.20 matter on every SQE1 item:
- Cause is at least as wide as inflict. Do not refuse s.18 because there was no assault-shaped attack.
- Specific intent. Recklessness as to GBH is not enough. D must intend to cause really serious harm, or intend to resist or prevent lawful arrest (and, in the arrest limb, still wound or cause GBH).
A broken bottle aimed at V's face, a crowbar brought down on V's skull, or a repeated kicking of V on the ground while D shouts I will put you in hospital, all support an inference of intent to cause GBH. A single unlucky punch in a spontaneous scuffle, with no weapon and no targeting of a vulnerable part, often stays at s.20 or s.47 even if the medical outcome is grave. Outcome does not automatically upgrade the offence; intent does.
If the facts show intent to cause GBH but the injury is only ABH, consider attempted s.18, not a completed s.18.
Choosing the charge on a fact pattern
| Offence | Injury threshold | Mens rea |
|---|---|---|
| Assault | None (apprehension only) | Intention or recklessness as to apprehension of immediate force |
| Battery | None (force applied) | Intention or recklessness as to the application of force |
| s.47 | ABH caused by the assault or battery | Mens rea of assault or battery only |
| s.20 | Wound or GBH inflicted | Intention or recklessness as to some physical harm |
| s.18 | Wound or GBH caused | Intent to cause GBH, or intent to resist/prevent lawful arrest |
Worked path: D pushes V in a pub. V is merely offended — battery. V has a split lip that is more than trifling — s.47. The glass goes into V's cheek and splits the skin — wound, so s.20 if D foresaw some harm, s.18 if D intended GBH. Do not charge s.18 merely because a wound looks nasty.
Psychiatric harm sits on the same ladder: recognised psychiatric injury more than mere emotion can be ABH; really serious psychiatric injury can be GBH. Silent calls that cause V to fear immediate force can be assault even before psychiatric injury is proved.
When you advise, state the ingredients in order and then apply the facts. A solicitor who jumps to s.18 because the photographs look bad, without evidence of intent to cause GBH, is not applying FLK2.
Official starting points: the SRA SQE1 FLK2 Assessment Specification (offences against the person), the Offences Against the Person Act 1861 ss.18, 20 and 47, and CPS legal guidance on offences against the person (charging practice only, not a substitute for the legal tests).
A woman slaps a man across the face during an argument. She wants only to sting him. The slap causes extensive bruising around the eye amounting to actual bodily harm. She did not think bruising was possible. Which statement best describes her mens rea for a s.47 offence?
A man swings a belt at another man, realising that it might sting or bruise him. The buckle catches the victim's forehead, splits the skin, and leaves a wound. The man did not want really serious harm. Which statement best captures maliciously for s.20?
A woman raises a fist at a man standing two metres away and shouts that she will knock his teeth out. He believes she is about to hit him and flinches. She never makes contact. He is not injured. Which offence, if any, is complete?
A man repeatedly kicks another man in the head while the victim is on the ground, shouting that he will put him in hospital. The victim suffers a fractured skull amounting to grievous bodily harm. Which statement best explains the choice between s.18 and s.20?