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- Devinder shouting at Florence
D told F “Watch out. I’m coming for you next”. As F did not suffer any physical harm it follows that D will not be guilty of any of the s.18, s.20 or s.47 offences under the Offences Against the Person Act 1861 (OAPA). It may be possible that D is guilty of the common law offence of assault. The actus reus of this offence is that a person causes another to apprehend the application of immediate and unlawful force[1]. Therefore, it would be necessary to prove that D caused F to anticipate that she would be struck immediately. The mens rea of assault is that a person intended to cause a victim to apprehend the application of immediate and unlawful force or was reckless with respect to that – the defendant must be at least aware of the risk that his actions might cause a person to apprehend force[2]. Whether D is guilty of assault will depend on whether the prosecution can satisfy the requirement that F apprehended the application of immediate force. As D said “I’m coming for you next”, it could be argued that the threat of force was not immediate. It has been advanced that if a person threatens to assault a victim “next Monday[3], the requisite immediacy is insufficient to found the actus reus. However, although D may have meant that he was “coming for” F after M, the use by D of the word “next” may have led F to apprehend that she was in fact next, thus satisfying the immediacy requirement and the requisite actus reus for D to be guilty of assault.
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- M pushing G who stumbled and fell sustaining cuts and bruises
The cuts and bruises that G sustained are not sufficient to prove that M was guilty of a s.18 or s.20 offence under OAPA. Section 18 is satisfied when a person unlawfully and maliciously wounds or causes grievous bodily harm to another with intent, whilst section 20 mirrors the s.18 offence with the exception that intent is not required. G’s injuries do not amount to grievous bodily harm, therefore it may be possible to prove the lesser offence under s.47 OAPA. To prove this offence it will be necessary to show that M committed assault occasioning actual bodily harm either intentionally or recklessly[4]. It is unnecessary to prove any mens rea with respect to the harm[5]. It will be necessary to analyse the exact nature of G’s injuries as paragraph 2.4 of the Code for Crown Prosecutors, Offences Against the Person, June 2004, states that where injuries comprise of minor bruises and superficial cuts the accused should be tried under s.39 Criminal Justice Act 1988 and should only be prosecuted under s.47 in exceptional circumstances. Therefore, the precise nature of G’s injuries will determine whether M is faced with either s.39 or s.47 charges.
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- D hitting M with a broken bottle causing extensive injuries to M’s face
As D has grievously injured M, it is possible that D will be charged with either a s.18 or s.20 OAPA offence. The former requires intent to unlawfully and maliciously would or cause grievous bodily harm. Recklessness will not suffice[6]. Significantly, the jury is entitled to find the requisite intent even if causing the harm was not the defendant’s purpose, but if the defendant knew that causing grievous bodily harm was a virtually certain consequence of his actions[7]. D will not be able to raise the defence of consent; D cannot assert that because M consented to the fight he also consented to any injuries he subsequently sustained. English law will not allow the defence of consent to be raised if the injury sustained is grievous, as the law is of the opinion that it is against the public interest to allow a person to cause each other actual bodily harm without good reason[8]. It seems likely that it can be shown that at the very least D knew that grievous bodily harm to M was a virtually certain consequences of D’s actions. Even if the facts are insufficient to establish D’s guilt under s.18. D can still be charged with the s.20 offence as it is not necessary to demonstrate intent. Instead, the mens rea requires subjective recklessness on the defendant’s part with respect to some of the harm.
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- M punching D in the head; D’s thin skull fractured
It may be difficult to establish that M had the requisite intent for the purpose of s.18 to occasion grievous bodily harm upon D. If so, M can be charged with the s.20 offence of unlawfully and maliciously wounding or inflicting grievous bodily harm. In order to satisfy the mens rea of this offence it is necessary to prove that M was subjectively reckless with respect to some of the harm (but not necessarily the serious harm) that he caused. This test will be satisfied if it can be shown that M was aware that his actions might cause D to suffer grievous harm[9]. The fact that, unbeknownst to M, D had a thin skull will not reduce M’s liability whatsoever. It is a long-established principle of English criminal law that ‘one must take one’s victim as one finds him’. This means that M cannot point to a peculiar vulnerability of the victim as the legal cause of injury[10].
Bibliography
A.P. Simester; G.R. Sullivan, “Criminal Law: Theory & Doctrine”, 2003, 2nd ed., Hart Publishing
1
Footnotes
[2] Spratt [1991] 2 All ER 210
[3] A.P. Simester; G.R. Sullivan, “Criminal Law: Theory & Doctrine”, 2003, 2nd ed., Sweet & Maxwell; at pg. 382
[5] Savage[1992] 1 AC 699; Parmeneter [1991] 2 All ER 225
[8] A-G’s Reference (No. 6 of 80) [1981] QB 715 (CA), per Lord Lane CJ
[10] Hayward [1908] 21 Cox CC 692
Updated 17 March 2026
This article was written some years ago but the core legal principles it describes remain broadly accurate under current English law. The elements of common law assault, and the offences under ss.18, 20, and 47 of the Offences Against the Person Act 1861, continue to apply as described. The key cases cited — including Savage [1992], Woollin [1999], A-G’s Reference (No. 6 of 1980), and Burstow [1998] — remain good law. The thin skull rule principle illustrated by Hayward (1908) continues to apply in criminal law.
However, readers should note the following material points. First, the article references paragraph 2.4 of the Code for Crown Prosecutors, Offences Against the Person, June 2004 regarding the charging distinction between s.39 Criminal Justice Act 1988 and s.47 OAPA. The Crown Prosecution Service has since updated its charging guidance; the current applicable document is the CPS Offences Against the Person, incorporating the Charging Standard, which is available on the CPS website and should be consulted in place of the 2004 version cited. The general principle — that minor bruising and superficial cuts will ordinarily be charged as common assault under s.39 rather than s.47 — remains reflected in current CPS guidance, but the precise wording and paragraph references have changed.
Second, the consent point in section (c) warrants a brief update. The law on consent to injury has been further developed since this article was written, most notably in R v BM [2018] EWCA Crim 560, in which the Court of Appeal confirmed and elaborated on the public policy limits on consent to bodily harm, affirming that consent is generally no defence where actual bodily harm or worse is deliberately inflicted outside recognised exceptions. This does not alter the conclusion reached in the article but represents an important development students should be aware of.
Third, the bibliography and footnote 3 cite Simester and Sullivan’s Criminal Law: Theory and Doctrine in its 2003 second edition. This text is now in its seventh edition (2019) and students should use the most current edition available.
Overall, the article provides a reliable introduction to these offences and principles, but students should consult current CPS charging guidance and up-to-date editions of the leading textbooks alongside it.
