OAPA 1861

• The OAPA 1861 has many problems and is an old-fashioned and outdated act
• The 1861 Act was a consolidating statute, into which a whole host of existing offences were placed without any rationalisation
• ABH under section 47 has the same maximum sentence as section 20 the more serious offence of GBH
• The word "maliciously" in the statute implies a deliberate act but the courts have deemed it to mean "intentionally or recklessly"
• The word "grievous" has meant "really serious harm" as per DPP v Smith (1961) and later merely "serious harm" as per Saunders (1985)
• The courts have had difficulties in interpreting the meaning of the words "inflict" and "cause" in sections 20 & 18
• In Burstow (1997) it was held that there is no real difference between the words "inflict" and "cause", and that psychiatric injury can be inflicted on another person
• In Ireland (1997) the court found that silent phone calls could amount to ABH if psychiatric harm such as depression was caused to the victim
• The leading case on transmission of HIV was DICA (2003) which effectively overruled Clarence, and Konzani (2005) followed Dica on this point
• In Golding (2014) there was a conviction for s 20 for transmitting herpes, but the defendant challenged the conviction on the basis that the Crown Prosecution guidelines in force at the time had not been properly followed
• The mens rea of offences in the statute also cause some confusion, as there is overlap between the mens rea of different offences
• Wounding falls under both section 18 and 20 which are both serious offences, but it was never properly defined and had to develop at common law
• The 1998 Offences Against the Person Bill proposed replacing existing offences with new ones with clearer levels of injury and mens rea
• One potential problem of the 1998 reforms would be in respect of transmission of HIV, as it would fall under the most serious offence which requires intention as part of the mens rea
• The Law Commission's 2015 scoping paper recognised that cases like Golding, where there is non-intentional transmission of infection through consensual sexual intercourse, could be harsh and that such conduct should not be criminal
• The Law Commission felt the 1998 Bill was a good model and a firm foundation on which to take forward long overdue reform in this area
• The Law Commission recommended introducing a new offence of "aggravated assault" to fill the gap between common assault and ABH
• The new offence of aggravated assault would cover low-level injuries such as superficial cuts, minor bruising, grazes and swellings, and the mens rea would be the same
• An offence of physical assault would replace the offence of battery and would apply to unwanted physical touching, either direct or by an object
• Threatened assault would replace the common law offence of assault and the mens rea would remain the same