Non-Fatal Offences

1. The Ladder of Non-Fatal Offences

English law provides a graduated set of offences against the person, ranging from the most minor unwanted touching to the most serious intentional infliction of life-changing injury. Each rung on the ladder is distinguished from its neighbours by the seriousness of the harm caused and by the mental element required.

The five offences on the ladder are common assault (which in law covers two distinct offences, assault and battery), assault occasioning actual bodily harm under s. 47 of the Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm under s. 20 of the same Act, and wounding or causing grievous bodily harm with intent under s. 18.

Common assault (assault and battery) is defined at common law and charged under the summary charging provision in s. 39 Criminal Justice Act 1988. The three aggravated offences — s. 47, s. 20 and s. 18 — are statutory and are found in the Offences Against the Person Act 1861, a mid-nineteenth-century consolidating statute whose language has long since ceased to mean what it says on its face. Almost every expression in the 1861 Act has been given a judicial gloss, and the task in a FLK2 MCQ is usually to apply that gloss correctly to a modern scenario.

2. Assault (Technical Assault)

In ordinary English, 'assault' is often used loosely to describe any physical attack, but in criminal law the word has a narrower and more technical meaning. A (technical) assault is the intentional or reckless causing of another person to apprehend immediate unlawful personal violence. No physical contact is required. Assault and battery are two distinct offences; where contact actually occurs the correct charge is usually battery, with or without a preceding assault.

2.2.1 Actus Reus

The actus reus of assault has three elements: (i) an act of the defendant; (ii) which causes the victim to apprehend; (iii) the immediate infliction of unlawful personal violence.

An act. Traditionally an assault required some positive act — a raised fist, a lunge, a brandished weapon. It is now clear that words alone are capable of constituting an assault (R v Constanza [1997] 2 Cr App R 492, stalking letters), and even silent telephone calls can suffice where their effect is to cause the victim to apprehend immediate violence (R v Ireland [1998] AC 147). Conversely, words may also negate what would otherwise be an assault: in Tuberville v Savage (1669) 1 Mod Rep 3 the defendant put his hand on his swordsaying 'if it were not assize-time, I would not take such language from you' — the accompanying words made clear that no violence would follow, so there was no assault.

Apprehension. The victim must actually apprehend force, but apprehension is not the same as fear; it is enough that the victim expects that force will be applied. An unusually brave victim who is not frightened but who expects an imminent blow is still being assaulted.

Immediate. The force apprehended must be immediate, not merely at some unspecified point in the future. 'Immediate' has been interpreted generously in the light of modern communications: in Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234 a defendant who stared through the victim's ground-floor window at night was held to have caused apprehension of immediate violence even though he was outside a locked window, because the victim did not know how soon or how he might enter.

Unlawful violence. The violence apprehended must be unlawful — an arrest on reasonable suspicion, or a lawful tackle in a rugby match, is not unlawful and cannot be the subject of an assault.

2.2.2 Mens Rea

The mens rea of assault is intention or recklessness as to causing the victim to apprehend immediate unlawful force. Recklessness is used in the modern subjective sense (R v G [2003] UKHL 50): the defendant must have been aware of the risk that his conduct would cause the victim to apprehend immediate unlawful force and, knowing of that risk, gone on to take it.

3. Battery

Battery is the application of unlawful force to another person. Force can be as light as the slightest touch; it is the unlawful and unwanted nature of the contact, not the amount of force, that matters. The offence is committed whenever there is unconsented physical contact that goes beyond the 'jostlings of everyday life' that all members of society are taken to accept (Collins v Wilcock [1984] 1 WLR 1172).

2.3.1 Actus Reus

The actus reus of battery is the application of unlawful force to another person. Three points deserve emphasis.

First, the force need not be direct — the defendant does not have to touch the victim personally. A defendant who digs a hole into which the victim falls, or who sets a dog on the victim, commits battery by indirect force. In DPP v K (a minor) [1990] 1 WLR 1067 a schoolboy who poured acid into a hand dryer was held to commit battery on the next user.

Secondly, the force need not be violent — any unwanted touching will do, as the long line of case law on kisses, pats on the shoulder and having one's hair cut off confirms.

Thirdly, consent negates unlawfulness (see Section 2.7 below).

Battery can also be committed by omission where the defendant is under a duty to act. In Santana-Bermudez v DPP [2003] EWHC 2908 (Admin) a defendant who told a police officer searching him that he had no needles in his pocket, when in fact he had, was held liable for battery when the officer was pricked: by creating the danger and failing to warn, he had committed the battery.

2.3.2 Mens Rea

The mens rea of battery is intention or (subjective) recklessness as to the application of unlawful force. As with assault, recklessness means that the defendant must have foreseen a risk of unlawful contact and taken it anyway.

4. Section 47 — Assault Occasioning Actual Bodily Harm

Section 47 of the Offences Against the Person Act 1861 provides that any person who commits 'any assault occasioning actual bodily harm' is liable on indictment to imprisonment for up to five years. Despite the word 'assault' in the section, the offence covers both assault and battery as the base offence; the critical additional element is that the assault or battery must occasion — that is, cause — actual bodily harm to the victim.

2.4.1 Actus Reus

The actus reus of s. 47 has three components: (i) a valid assault or battery; (ii) actual bodily harm; and (iii) a causal link between the two.

Actual bodily harm is defined generously: it includes any hurt or injury that is more than merely transient and trifling (R v Miller [1954] 2 QB 282). Bruises, grazes, scratches, a black eye, swelling and a broken tooth are all ABH. It also includes psychiatric injury, provided the injury is a recognised psychiatric condition rather than mere fear, distress or panic (R v Chan-Fook [1994] 1 WLR 689; R v Ireland; R v Burstow [1998] AC 147). Cutting off a substantial amount of the victim's hair without consent has also been held to amount to ABH (DPP v Smith [2006] EWHC 94 (Admin)).

2.4.2 Mens Rea

This is the point on which s. 47 MCQs most often turn. The mens rea of s. 47 is the mens rea of the assault or battery — intention or recklessness as to causing the victim to apprehend immediate unlawful force, or intention or recklessness as to the application of unlawful force. The prosecution does not need to prove that the defendant intended or foresaw the actual bodily harm that in fact resulted.

This was settled by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699. In Savage, the defendant threw a pint of beer at the victim, the glass slipped and cut the victim's wrist — the defendant's intention (or recklessness) to throw the beer was the only mens rea the prosecution had to prove, because s. 47 attaches strict liability to the ABH that happens to result. A candidate who states, on a s. 47 fact pattern, that the Crown must prove the defendant foresaw the injury has answered a question which the 1861 Act does not ask.

5. Section 20 — Malicious Wounding or Inflicting GBH

Section 20 of the 1861 Act makes it an offence, on indictment, to 'unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument'. Despite its old-fashioned wording, the offence is in practice reached in one of two ways: the defendant has wounded the victim, or the defendant has inflicted GBH on the victim. Either route is enough; the prosecution does not have to prove both.

2.5.1 Actus Reus

'Wound' means a break in the continuity of the whole skin — both the dermis and the epidermis must be broken (JJC (a minor) v Eisenhower [1984] QB 331). A bruise, however severe, is not a wound because the skin is not broken. A scratch or a cut with a knife, on the other hand, can be a wound even if it would not amount to GBH. Internal bleeding alone is not a wound.

'Grievous bodily harm' means, and has always meant, 'really serious harm' (DPP v Smith [1961] AC 290; R v Saunders [1985] Crim LR 230). It is a question of fact for the jury, taking the victim as they find him (the thin-skull rule applies). GBH includes serious psychiatric injury (R v Burstow [1998] AC 147), serious sexually transmitted disease (R v Dica [2004] EWCA Crim 1103), and the cumulative effect of a long course of serious bullying. What amounts to 'really serious' depends on the age and health of the victim as well as the nature of the injury — fractures to a small child can be GBH where the same fracture to a healthy adult might not be.

The word 'inflict' used to be read restrictively to require a direct physical assault, but that reading has been abandoned. Since R v Burstow [1998] AC 147 it is clear that 'inflict' is synonymous with 'cause' and that an indirect infliction — for example by a telephone harassment campaign causing the victim to develop a serious depressive illness — can amount to s. 20.

2.5.2 Mens Rea

The word 'maliciously' does not bear its ordinary English meaning. In the criminal law of the 1861 Act it means intention or recklessness (R v Cunningham [1957] 2 QB 396). But the important point, tested repeatedly in FLK2, is the object to which that intention or recklessness must attach.

The leading case is R v Mowatt [1968] 1 QB 421, confirmed in R v Savage; DPP v Parmenter [1992] 1 AC 699. The prosecution must prove that the defendant intended or foresaw some physical harm to the victim, not that he intended or foresaw the actual wound or really serious harm that resulted. Recklessness as to some harm, however slight, is enough for s. 20.

6. Section 18 — Wounding or Causing GBH with Intent

Section 18 is the most serious offence on the ladder and carries a maximum sentence of life imprisonment. It provides that any person who 'unlawfully and maliciously by any means whatsoever wound[s] or cause[s] any grievous bodily harm to any person … with intent … to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person' is guilty of an offence.

In practice there are two forms of s. 18 that you need to know: wounding or causing GBH with intent to cause GBH (the most common form), and wounding or causing GBH with intent to resist lawful arrest.

2.6.1 Actus Reus

The actus reus is the same as for s. 20 — a wound or grievous bodily harm — and the word 'cause' in s. 18 is co-extensive with 'inflict' in s. 20. There is therefore no issue about indirect causation, omissions, or pre-existing psychiatric vulnerability that does not apply equally to both offences.

2.6.2 Mens Rea

The mens rea is where s. 18 differs sharply from s. 20. For s. 18 the defendant must intend to cause grievous bodily harm (or, for the second form, intend to resist lawful apprehension). Recklessness is not enough. Intention here bears the same meaning as in murder: direct intention (aim or purpose) or oblique intention under the R v Woollin [1999] 1 AC 82 virtual-certainty test (Chapter 1, 1.3.1). The prosecution must therefore prove that at the moment the defendant acted, his aim was to cause really serious harm, or that he appreciated that really serious harm was a virtual certainty of his action.

A defendant who has caused grievous bodily harm with only recklessness is guilty of s. 20, not s. 18. In practice, the prosecution will charge s. 18 whenever there is any evidence from which intent can be inferred — a repeated kicking of a prone victim, a shooting, a sustained attack with a weapon — and the jury will be directed that if they are not sure of intent they may return a verdict on the lesser included offence of s. 20.

7. Consent as a Defence

Consent is a defence to assault and battery, and (within narrow limits) to some of the more serious non-fatal offences. The starting point is that the lawful application of force is either consented to (a medical operation, a handshake, a hug) or falls within one of the recognised public-interest exceptions. Where force is unconsented, it is prima facie unlawful and the relevant offence on the ladder is made out.

The basic rule was laid down by the House of Lords in R v Brown [1994] 1 AC 212 and confirmed by R v Wilson [1996] 2 Cr App R 241 and Attorney-General's Reference (No 6 of 1980) [1981] QB 715. Consent is a defence to assault and battery; but consent is NOT a defence to an offence involving the infliction of actual bodily harm or worse (s. 47 and above) unless the case falls within a recognised public-interest exception.

2.7.1 The Recognised Exceptions

The categories of public-interest exception are not closed, but the well-established ones are:

Properly conducted contact sports and rough horseplay (subject to the rules and the expected range of incidental contact);

Reasonable surgical interference;

Tattooing, body piercing and branding performed with consent (R v Wilson, husband branding wife's buttocks at her request);

Reasonable punishment of a child (s. 58 of the Children Act 2004, but only in England, and only where the resulting injury does not amount to actual bodily harm; the defence has been abolished in Wales by the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020, in force since 21 March 2022);

Religious or customary practices such as male circumcision and ear piercing.

Sado-masochistic assault in private between consenting adults was held in R v Brown not to fall within any recognised exception, and the defendants' convictions under s. 47 and s. 20 were upheld — that decision remains controversial but is binding for FLK2 purposes.

2.7.2 The Limits of Consent

Three limits on consent are tested most often in MCQs.

First, consent to assault or battery is not the same as consent to actual bodily harm: the victim's agreement to a fight, for instance, prevents a charge of common assault but not a charge of s. 47 if the fight produces injury.

Secondly, consent must be real — obtained without fraud as to the nature and quality of the act or as to the identity of the actor, and not obtained by threats. In R v Dica [2004] EWCA Crim 1103 the defendant, knowing he was HIV-positive, had unprotected sex with two complainants who were unaware of his status; the Court of Appeal held that their consent to intercourse was not consent to the risk of infection, and upheld s. 20 convictions. In R v Tabassum [2000] 2 Cr App R 328 the women's consent to a breast examination by someone they thought was a doctor was held to be no consent at all, because they had been deceived as to the quality of the act.

Thirdly, minors cannot give legal consent to the infliction of significant harm, and children and vulnerable adults cannot consent to behaviour that would injure them.

8. Key Notes (Chapter Summary)

The following table consolidates the actus reus, mens rea and maximum sentence of each offence on the non-fatal ladder. Use it as a final recap before tackling the MCQs at Section 2.10.

9. Revision Notes

Work through the following revision questions without looking at the answers. Each is written to test the kind of applied knowledge the FLK2 examiners expect.

Q1. Explain the difference between assault and battery.

Q1. Explain the difference between assault and battery. Why does English criminal law treat them as separate offences, and what is the significance of the distinction in practice?

Q2. Pint glass thrown to startle — charge s. 47 or s. 20?

Q2. A defendant throws a pint glass across a crowded pub intending only to startle the victim. The glass strikes the victim and breaks, cutting her severely. Advise the prosecution on whether to charge the defendant under s. 47 or s. 20, and identify the mens rea they would have to prove for each.

Q3. The mens rea difference between s. 20 and s. 18.

Q3. Explain the difference in mens rea between s. 20 and s. 18, and why Parliament imposed a significantly higher sentence for s. 18 than for s. 20 even though the two sections require the same actus reus.

Q4. When and why is consent a defence to a non-fatal offence?

Q4. When, and why, is consent a defence to a non-fatal offence against the person? Give the leading cases on both sides of the line.

Q5. The principle in R v Dica.

Q5. Explain the principle in R v Dica and its significance for the law on consent in cases of disease transmission.

10. MCQ Practice — Five SQE-Style Questions

Five SQE1-style single best answer questions follow. Each has five options and only one is correct. Attempt each question under timed conditions before turning to the answer key. The answer key explains why each option is correct or incorrect — read every explanation in full.

A. The man is not liable because he did not touch the woman.

B. The man is not liable because his words indicated that any force would only be applied after ten seconds.

C. The man is liable for assault because he caused the woman to apprehend immediate unlawful force.

D. The man is liable for battery because raising a fist is an application of unlawful force.

E. The man is liable for s. 47 ABH because the woman was so frightened that she was trembling.

A. The piercer is liable under s. 20 because consent is never a defence to grievous bodily harm.

B. The piercer is liable under s. 20 because the resulting infection was GBH and the piercer was reckless as to some physical harm.

C. The piercer is not liable because consent is always a defence to any non-fatal offence.

D. The piercer is not liable because body piercing is a recognised public-interest exception to the rule in R v Brown and the consent was real.

E. The piercer is not liable because s. 20 requires intent and there was none.

A. The defendant is not liable under s. 47 because he did not foresee the fractured cheekbone.

B. The defendant is not liable under s. 47 because the fracture was caused by the table, not by the slap.

C. The defendant is liable under s. 47 because the mens rea of the base battery is all that has to be proved and a fractured cheekbone is actual bodily harm.

D. The defendant is liable under s. 47 only if the prosecution can prove that a reasonable person would have foreseen the injury.

E. The defendant is liable under s. 20 because a fractured cheekbone is really serious harm.

A. The woman is liable under s. 18 because the depressed skull fracture is GBH and s. 18 is a basic intent offence for which recklessness is enough.

B. The woman is liable under s. 18 because striking a person on the head with a bottle shows she must have intended some physical harm, which is enough under s. 18.

C. The woman is liable under s. 18 only if the jury are sure that when she struck the blow her aim was to cause really serious harm or that she appreciated it was a virtual certainty.

D. The woman is liable under s. 20 but cannot be liable under s. 18 in any circumstances because the bottle was not a deadly weapon.

E. The woman is not liable under any of the non-fatal offences because her purpose was only to humiliate.

A. The defendant is not liable under s. 20 because no physical contact occurred and there is no wound.

B. The defendant is not liable under s. 20 because he did not foresee the specific psychiatric illness that resulted.

C. The defendant is liable under s. 20 only if the prosecution can prove that he foresaw some physical or psychiatric harm to the victim.

D. The defendant is liable under s. 20 on a strict liability basis once GBH is shown.

E. The defendant is liable under s. 18 because the calls were deliberate.