Notes · LawUK · A-Levels

Fatal and Non-Fatal Offences Against the Person

This topic covers the homicide offences - murder and the forms of manslaughter, including the partial defences of loss of control and diminished responsibility - and the ladder of non-fatal offences from assault and battery up through sections 47, 20 and 18 of the Offences Against the Person Act 1861.

5 sections~21 min reading time3 competenciesLevel Foundation 1 · Standard 2 · Advanced 2

T·0999 / 16

Exam profile

AO1 · Demonstrate knowledge and understanding of the homicide offences and the non-fatal offences against the personAO2 · Apply the elements of each offence to a factual scenario to reach a reasoned conclusion on liabilityAO3 · Analyse and evaluate the law on homicide and on non-fatal offences, including proposals for reform

Operators:explainapplyanalyseevaluateadvise

basic level

AS students should be able to state the actus reus and mens rea of murder, assault, battery and the section 47 offence and apply them to simple facts.

higher level

Full A-Level answers work up the ladder of offences, apply the partial defences with the correct statutory tests, and evaluate the widely criticised structure of the OAPA 1861.

Depth

Text

Contents · 5 sections

Fatal and Non-Fatal Offences Against the Person

Murder#

StandardAQA 7162/1 - Fatal offencesDfE GCE Law subject content

Deciding the homicide offence

Fig. 1Intention to kill or cause GBH gives murder, reduced to voluntary manslaughter by a partial defence; otherwise the issue is involuntary manslaughter.

Murder is a common-law offence, defined in the classic formulation as the unlawful killing of a human being under the King's (or Queen's) peace with malice aforethought. The actus reus therefore has several elements: there must be a killing (an act or a qualifying omission that causes death); the victim must be a human being (a person who has been born and is alive, which raises questions at the margins of life); the killing must be unlawful (not, for example, in lawful self-defence); and it must occur under the King's peace (not, for instance, the killing of an enemy combatant in wartime). The rules on causation examined in the previous topic apply to establish that the defendant caused the death.

The mens rea of murder is malice aforethought, which the courts have interpreted to mean an intention to kill (express malice) or an intention to cause grievous bodily harm (implied malice). In R v Vickers (1957) the Court of Criminal Appeal confirmed that an intention to cause grievous bodily harm is sufficient mens rea for murder, and this was approved by the House of Lords in R v Cunningham (1982). Grievous bodily harm means 'really serious harm' (DPP v Smith (1961)). The intention may be direct or oblique; where death or serious injury was not the defendant's purpose, the jury may find intention on the Woollin virtual-certainty test.

There is no requirement that the defendant intended death; an intention to cause really serious harm is enough, even if death was neither desired nor foreseen. This has been criticised, because it means a defendant who intended only serious injury is convicted of the most serious offence and receives the mandatory life sentence, the same label and sentence as a deliberate killer. Because the sentence for murder is a mandatory life sentence, the offence's boundaries and the availability of the partial defences carry great practical importance.

For evaluation, the law of murder is frequently criticised: the definition rests on old common-law concepts; the grievous-bodily-harm rule blurs the distinction between intending death and intending serious harm; and the mandatory life sentence removes judicial discretion to reflect the wide range of culpability among killers. The Law Commission has proposed restructuring homicide into tiers of first- and second-degree murder and manslaughter. A strong answer applies the elements accurately and can evaluate the case for reform.

Worked example

Worked problem question: murder and the GBH rule

D strikes V with a bottle intending to cause serious injury. V dies from the blow. Advise on D's liability for murder.

Issue
Whether D has the actus reus and mens rea of murder where he intended serious harm but not death.
Rule / authority
Murder is the unlawful killing of a human being under the King's peace with malice aforethought, which includes an intention to cause grievous bodily harm (R v Vickers (1957); GBH means really serious harm, DPP v Smith (1961)).
Application
D unlawfully killed V, a human being, and caused the death by the blow. Although D did not intend to kill, he intended serious injury, which is an intention to cause GBH and therefore sufficient mens rea for murder under the Vickers rule.
Conclusion
D is liable for murder because an intention to cause grievous bodily harm satisfies the mens rea, even though he did not intend death.

Result: The answer applies the GBH rule accurately to establish murder despite the absence of an intention to kill.

Typical mistakes

Saying the mens rea of murder requires an intention to kill; an intention to cause grievous bodily harm suffices (Vickers).
Forgetting that causation must be established, or omitting the requirement that the killing be unlawful and under the King's peace.

Active revision

D punches V once, intending to break his jaw. V falls, hits his head and dies. Advise on whether D is liable for murder.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Voluntary manslaughter: loss of control and diminished responsibility#

AdvancedAQA 7162/1 - Fatal offencesDfE GCE Law subject content

Voluntary manslaughter arises where the defendant has the actus reus and mens rea of murder but a partial defence reduces the offence to manslaughter, removing the mandatory life sentence and giving the judge sentencing discretion. There are two such partial defences relevant here, both now governed by the Coroners and Justice Act 2009. They apply only to a charge of murder.

Loss of control, under sections 54 and 55 of the Coroners and Justice Act 2009, replaced the old defence of provocation. It has three components. First, the defendant must have lost self-control, though the loss need not be sudden. Secondly, the loss of control must have a qualifying trigger: a fear of serious violence from the victim against the defendant or another, or things done or said that constituted circumstances of an extremely grave character and gave the defendant a justifiable sense of being seriously wronged, or a combination of the two. Sexual infidelity is excluded as a qualifying trigger by section 55(6)(c), although in R v Clinton (2012) the Court of Appeal held that it may still be taken into account as part of the context where other qualifying triggers are present. Thirdly, a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the defendant's circumstances, might have reacted in the same or a similar way.

Diminished responsibility, under section 2 of the Homicide Act 1957 as amended by section 52 of the Coroners and Justice Act 2009, applies where the defendant was suffering from an abnormality of mental functioning which arose from a recognised medical condition, substantially impaired the defendant's ability to understand the nature of their conduct, form a rational judgement or exercise self-control, and provides an explanation for the killing. The concept of abnormality of mental functioning descends from R v Byrne (1960), where an inability to control perverted desires qualified. In R v Golds (2016) the Supreme Court held that 'substantially' impaired means the impairment must be important or weighty, a matter for the jury. Unusually, the burden of proving diminished responsibility rests on the defence, on the balance of probabilities.

For evaluation, the 2009 reforms are generally regarded as improvements on the old law: loss of control no longer requires a sudden loss, better protecting abused defendants who kill after slow-burn provocation, and the exclusion of sexual infidelity as a trigger addresses a long-standing criticism, though R v Clinton shows the line is difficult to hold. Diminished responsibility is now more clearly tied to medical evidence. Criticisms remain, including the complexity of the tests and the placing of the burden of proof on the defendant. A strong answer applies the statutory components precisely and evaluates the reforms.

Worked example

Worked problem question: loss of control

After a prolonged campaign of serious violence and threats by V, D loses self-control during a further threatening incident and kills V. Advise on whether loss of control is available.

Issue
Whether the partial defence of loss of control reduces D's liability from murder to manslaughter.
Rule / authority
Loss of control (ss.54-55 Coroners and Justice Act 2009): (1) a loss of self-control (need not be sudden); (2) a qualifying trigger - fear of serious violence and/or things of an extremely grave character giving a justifiable sense of being seriously wronged; (3) a person of D's age and sex with normal tolerance and self-restraint might have reacted similarly.
Application
D lost self-control; the qualifying trigger is a fear of serious violence from V (and the grave circumstances of sustained abuse). The suddenness rule no longer applies, so a slow-burn reaction is not fatal to the defence, and a jury could find that a normal person in D's circumstances might have reacted similarly.
Conclusion
Loss of control is available on these facts and, if accepted, reduces D's liability from murder to voluntary manslaughter.

Result: The answer applies the three statutory components in order, using the qualifying trigger of fear of serious violence and the removal of the suddenness requirement.

Typical mistakes

Treating loss of control as requiring a sudden loss of self-control; s.54 removed the suddenness requirement.
Confusing the two partial defences, or forgetting that diminished responsibility must arise from a recognised medical condition and is proved by the defence.

Active revision

D, who has been subjected to years of domestic abuse by V, finally kills V during a further attack. Advise on any partial defence to murder.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Involuntary manslaughter#

AdvancedAQA 7162/1 - Fatal offencesDfE GCE Law subject content

Two forms of involuntary manslaughter

Fig. 2Both are unlawful killings without the mens rea of murder, one resting on an unlawful act, the other on gross negligence.

Involuntary manslaughter is an unlawful killing where the defendant lacks the intention to kill or cause grievous bodily harm required for murder. There are two principal forms: unlawful act (constructive) manslaughter and gross negligence manslaughter.

Unlawful act manslaughter requires three elements. First, the defendant must have committed an unlawful act - a criminal offence, not merely a civil wrong, and not a mere omission (R v Lowe (1973)); the unlawful act is often a battery, an assault or criminal damage. Secondly, the act must be dangerous, judged objectively: a sober and reasonable person would recognise that it carried a risk of some harm, though not necessarily serious harm (R v Church (1966)). Thirdly, the act must cause the death. In DPP v Newbury and Jones (1977) two boys who pushed a paving stone from a bridge onto a train, killing the guard, were guilty of manslaughter; the House of Lords confirmed that the defendant need not foresee any harm, provided the act was unlawful and objectively dangerous. R v Goodfellow (1986) confirmed that the unlawful act need not be aimed at the victim.

Gross negligence manslaughter does not require an unlawful act; it applies where the defendant owes the victim a duty of care and breaches it so badly as to be criminal. In R v Adomako (1994) the House of Lords set out the test: the defendant must owe the victim a duty of care; the defendant must breach that duty; the breach must cause the death; there must be a risk of death; and the negligence must be so gross that it justifies criminal liability, a question for the jury. In Adomako an anaesthetist who failed to notice for several minutes that a tube supplying oxygen had become disconnected, leading to the patient's death, was convicted. The test descends from R v Bateman (1925).

For evaluation, unlawful act manslaughter is criticised as too wide, because a defendant who foresaw no harm at all can be convicted of manslaughter (Newbury and Jones), while gross negligence manslaughter is criticised for the circularity of asking the jury whether the negligence was 'gross' enough to be criminal. Both forms carry a discretionary sentence, allowing the judge to reflect the wide range of culpability. A strong answer identifies which form is in issue, applies its elements precisely, and can evaluate the breadth and uncertainty of the offences.

Worked example

Worked problem question: unlawful act manslaughter

D throws a brick from a bridge intending to frighten drivers; it hits a windscreen, causing a crash in which the driver dies. Advise on unlawful act manslaughter.

Issue
Whether D is liable for unlawful act manslaughter for a death caused by a dangerous act done without intention to kill or injure.
Rule / authority
Unlawful act manslaughter requires (1) an unlawful act (here criminal damage or an assault), (2) that is objectively dangerous - a sober and reasonable person would foresee a risk of some harm (R v Church (1966)), and (3) that causes death; the defendant need not foresee any harm (DPP v Newbury and Jones (1977)).
Application
Throwing the brick is an unlawful act (criminal damage/assault). A sober and reasonable person would recognise a risk of some harm from throwing a brick at a moving vehicle, so it is dangerous, and it caused the death. That D intended only to frighten is irrelevant, following Newbury and Jones.
Conclusion
D is liable for unlawful act manslaughter: the act was unlawful, objectively dangerous and the cause of death.

Result: The answer applies the three elements of unlawful act manslaughter and correctly disposes of D's lack of foresight using Newbury and Jones.

Typical mistakes

Treating an omission as capable of founding unlawful act manslaughter; it requires an unlawful act, not an omission (Lowe).
Requiring the defendant to foresee harm for unlawful act manslaughter; the test of dangerousness is objective (Church), and no foresight is needed (Newbury and Jones).

Active revision

D, playing a prank, pushes a heavy object off a footbridge onto a road; it strikes and kills a cyclist. Advise on D's liability for involuntary manslaughter.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Assault and battery#

FoundationAQA 7162/1 - Non-fatal offencesDfE GCE Law subject content

Assault and battery are the two lowest non-fatal offences against the person. They are common-law offences, charged as summary offences (sometimes together described as common assault). Each has its own actus reus and mens rea, and it is important to keep them separate, because 'assault' in ordinary speech usually means what the law calls battery.

An assault (technical or psychic assault) is committed where the defendant intentionally or recklessly causes the victim to apprehend the immediate infliction of unlawful force. No touching is required; it is the causing of fear of imminent force that matters. Words alone can amount to an assault, and even silence can, as in R v Ireland (1997), where silent telephone calls that caused psychiatric harm were capable of being an assault. Words may also negate an assault: in Tuberville v Savage (1669) the statement that the defendant would not draw his sword 'were it not assize-time' showed there was no threat of immediate force. The force apprehended must be immediate, though the courts interpret this generously, as in Smith v Chief Superintendent of Woking Police Station (1983), where a defendant who looked through a victim's window at night caused apprehension of immediate force. The mens rea is intention or subjective recklessness as to causing the apprehension of immediate unlawful force.

A battery is the actual infliction of unlawful force on another. The force need not be violent: any unlawful physical contact can suffice, because in principle any touching of another without consent is unlawful, as recognised in Collins v Wilcock (1984), subject to the generally accepted physical contacts of everyday life. Battery can be committed indirectly, for example by setting a trap or, as the courts have held, by causing force to be applied through an object or another person. The mens rea is intention or subjective recklessness as to the application of unlawful force.

For evaluation, assault and battery are the foundation of the ladder of non-fatal offences, and the requirement of consent to ordinary physical contact keeps everyday life from being criminalised. A strong answer keeps assault and battery distinct, applies the correct actus reus and mens rea to the facts, and recognises when an assault or battery becomes the basis for the more serious offences that follow.

Worked example

Worked problem question: assault and battery

D shouts a threat at V from close range, causing V to fear an immediate blow, then grabs V's arm. Advise on D's liability for assault and battery.

Issue
Whether D's threat is an assault and the grabbing a battery.
Rule / authority
Assault: intentionally or recklessly causing V to apprehend immediate unlawful force (R v Ireland). Battery: intentionally or recklessly applying unlawful force, including the slightest touching (Collins v Wilcock).
Application
The threat at close range causes V to apprehend immediate unlawful force, so it is an assault, provided D intended or was reckless as to that apprehension. Grabbing V's arm is the application of unlawful force and so a battery, D intending or being reckless as to the contact.
Conclusion
D is liable for both an assault (the threat) and a battery (grabbing the arm), each with its own actus reus and mens rea.

Result: The answer keeps assault and battery distinct and applies the correct elements of each to the facts.

Typical mistakes

Using 'assault' to mean physical contact; that is battery - assault is causing apprehension of force.
Requiring violent force for battery; any unlawful touching suffices (Collins v Wilcock).

Active revision

D raises his fist at V and says 'I'd hit you if the police weren't here', then jostles V in the crowd. Advise on assault and battery.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

The Offences Against the Person Act 1861: sections 47, 20 and 18#

StandardAQA 7162/1 - Non-fatal offencesDfE GCE Law subject content

The ladder of non-fatal offences

Fig. 3The offences climb in seriousness; the crucial difference between s.20 and s.18 is the mens rea.

Above assault and battery, three statutory offences form the upper rungs of the ladder, all under the Offences Against the Person Act 1861. Section 47 creates the offence of assault occasioning actual bodily harm (ABH). Its actus reus is an assault or battery that occasions (causes) actual bodily harm, meaning harm that is more than merely trifling or transient (R v Miller (1954)); ABH includes psychiatric injury (R v Chan-Fook (1994)) and can include the cutting of a person's hair (DPP v Smith (2006)). Crucially, the mens rea for section 47 is only the mens rea for the assault or battery; the prosecution need not prove that the defendant intended or foresaw the actual bodily harm (R v Roberts (1971); confirmed in R v Savage (1991)).

Section 20 creates the offence of maliciously wounding or inflicting grievous bodily harm. A wound requires a break in the continuity of both layers of the skin (JCC v Eisenhower). Grievous bodily harm means 'really serious harm' (DPP v Smith (1961)); it may be inflicted without any technical assault and can include serious psychiatric injury (R v Burstow (1997)) or the transmission of a serious disease. The mens rea, indicated by the word 'maliciously', is intention or recklessness as to causing some harm - the defendant need only intend or foresee some harm, not serious harm or a wound (R v Mowatt (1968); confirmed in R v Savage; DPP v Parmenter (1991)).

Section 18 is the most serious non-fatal offence: wounding or causing grievous bodily harm with intent. Its actus reus is the same as for section 20 (a wound or grievous bodily harm), but its mens rea is a specific intent: an intention to cause grievous bodily harm (or an intention to resist or prevent lawful apprehension together with intention or recklessness as to some harm). Because it requires proof of intention to cause really serious harm, section 18 is triable only on indictment and carries a maximum of life imprisonment, whereas section 20 and section 47 carry lower maxima. The key difference between section 20 and section 18 lies in the mens rea: recklessness or intention as to some harm for section 20, but intention to cause grievous bodily harm for section 18.

For evaluation, the 1861 Act is heavily criticised. Its language is archaic and inconsistent ('inflict' in section 20 but 'cause' in section 18; 'maliciously' bearing a special meaning); the hierarchy of offences is not properly graduated, so that section 47 carries the same maximum sentence as section 20 despite requiring a lower level of harm and fault; and the meaning of key terms has had to be developed by the courts. The Law Commission and the government have proposed replacing the Act with a modern, clearly graded statute, but reform has not been enacted. A strong answer places the injury on the correct rung, applies the precise actus reus and mens rea, and can evaluate the case for reform.

Section 20 and section 18 compared

Fig. 4The two offences share an actus reus; the crucial difference is the mens rea required.

Worked example

Worked problem question: climbing the ladder of offences

D punches V, causing bruising and a cut lip; later, intending really serious harm, D strikes V with a bar, breaking V's arm. Advise on the appropriate non-fatal offences.

Issue
Which offences on the ladder fit each injury and level of fault.
Rule / authority
s.47 OAPA 1861: assault/battery occasioning ABH (more than trifling - R v Miller (1954)), with only the mens rea of the assault/battery (R v Savage). s.18 OAPA 1861: causing GBH (really serious harm - DPP v Smith) with intent to cause GBH.
Application
The bruising and cut lip are more than trifling, so the punch is a battery occasioning ABH under s.47, D having the mens rea for the battery. The broken arm is really serious harm (GBH); as D intended really serious harm, the correct offence is s.18, the specific-intent offence, rather than s.20.
Conclusion
The first incident is s.47 ABH; the second, given the intention to cause GBH, is the s.18 offence of causing GBH with intent.

Result: The answer matches each injury and mental state to the correct rung, distinguishing s.47, s.20 and s.18 by their mens rea.

Typical mistakes

Requiring the defendant to foresee actual bodily harm for s.47; the mens rea is only that of the assault or battery (Roberts; Savage).
Confusing the mens rea of s.20 (some harm foreseen) with that of s.18 (intention to cause GBH), which is the crucial dividing line.

Active revision

D deliberately smashes a glass into V's face, intending to cause serious injury; V suffers deep cuts. Advise on the most appropriate non-fatal offence.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

References & sources

Sources

Department for Education

GCE AS and A level subject content for law

AQA

AQA A-level Law (7162) specification

Fatal and Non-Fatal Offences Against the Person

5 sections~21 min reading time3 competenciesLevel Foundation 1 · Standard 2 · Advanced 2

Fatal and Non-Fatal Offences Against the Person

Key points

Worked problem question: murder and the GBH rule

Key points

Worked problem question: loss of control

Key points

Worked problem question: unlawful act manslaughter

Key points

Worked problem question: assault and battery

Key points

Worked problem question: climbing the ladder of offences

Sources

Fatal and Non-Fatal Offences Against the Person

Key points

Worked problem question: murder and the GBH rule

Key points

Worked problem question: loss of control

Key points

Worked problem question: unlawful act manslaughter

Key points

Worked problem question: assault and battery

Key points

Worked problem question: climbing the ladder of offences

Sources