Assault

• Reform proposal: common law offence

  • Proposals to simplify and update the law were set out years ago by the Law Commission in 1993 and then the labour government in 1998 in a draft bill.
  • In November 2015 the Law Commission published further proposals predominantly using the original bill.
  • The fact that assault and battery are very common offences , it would seem more appropriate for their definitions to be codified in a Act of Parliament.
• Wording:

  Reform is needed as terms such as 'assault causes difficulty and confusion. The actus reus of Assault is an act that causes apprehension of immediate unlawful force, but to the ordinary lay person assault means the infliction of violence and even injury, so it is potentially very misleading.

  Also, assault in some instances seems to include battery too for example, S40 of the Criminal Justice Act 1988 refers to common assault and this seems to encompass battery too yet specifically states common assault and battery. This is confusing
• Wording:

  Immediate in plain English means there and then yet in Smith v CSoWP it was said it was the near future or not knowing what will happen next but believing force will be applied next and therefore can be confusing for magistrates. The requirement for immediacy in assault has therefore generated many appeals, decisions in cases like Smith v CSoWP and Constanza or not consistent or clear, so it is difficult for juries to understand
• Reform proposals: wording

  The 2015 report also stated that: Assault and battery should become one offence. This would remove the problems of confusion currently with battery sometimes coming under the heading of assault and sometimes not.

  The 2015 report also proposes a new offence of aggravated assault for low level injuries, physical and threatened assault and assault intending to resist carrying 2 years. This would remove the problem of the term 'Assault' being confusing for lay people.
• The Correspondence principle:

  The 1989 Draft Criminal Code provides that the D should not be liable for an offence unless he intends or is reckless toward all the actus reus elements of the offence. Academics call this the 'correspondence principle'. Unlike S.47 and S.20 of the OAPA 1861, a strength of assault is that it does conform to the correspondence principle. For assault, the AR is an act which causes the victim to apprehend immediate unlawful force and the MR is intention or recklessness as to this(savage) and so it follows the correspondence principle which makes it fair.
• Sentencing:

  Assault and battery have the same fixed term sentence (6 months).Yet the actus reus is very different. This is illogical and incomprehensible because battery is more serious. The next offence of Assault Occasioning Actual Bodily Harm has a fixed term sentence of 5 years but the mens rea of ABH is the same as assault/battery which has a sentence of 6 months the gap between the sentencing is illogical. However, there is injury with ABH so should be higher.
• Common law offence:

  Assault has arisen through Common law(made by judges) and whilst in 1988, statute (The Criminal Justice Act) provided clear process and sentencing powers (maximum 6 months imprisonment or 12 if consecutive) and the classification of offence (summary) for assault and battery, no attempt was made to define the offence properly by Parliament. Yet ABH and GBH are defined in a statute (OAPA 1861).However assault and battery are common offences.
• Common Law offences:

  Under the constitution and the separation of powers theory, parliament should be making the law and judges should be applying the law. Judge-made law also goes against democracy as MPs are voted in to make the law yet they leaving it up to the judges to create the law. Common law also creates retrospective law and this is unfair as unlike statute law, there is no prior awareness of the law until it has come into force.
• Common law offences:

  However, the application of non-fatal offences by judges does demonstrate that the common law system works well. For example, Assault has been broadly defined and the case of Ireland provides an Assault can even arise from silence.
• Conclusion:

  In conclusion plans to codify and update the law have not been implemented but redrawing the definitions and sentences would make the law (link back to the question) in the 21st century. Better defined and understandable offences and sentencing would give the Criminal Justice System greater credibility as it would have a clearer moral basis.