there remain uncertainties over how the two crimes co-exist. Even though they are independent offences, the term “assault” (or “common assault”) is frequently used as a generic label for assault or battery. This practice further impedes fair warning. The courts have attempted to correct that confusion by separating the offences as “common assault” and “assault by beating”. This continues to have implications for prosecutors who must draft the appropriate charge. Notwithstanding this problem, one common feature of assault and battery is clear: D may use V’s consent to harm as an answer to a charge under either offence. No liability will ensue. Importantly, such consent will not negate D’s liability for any harm caused above a battery, unless D does not intend or foresee that harm. Where such harm falls within a specified exception, D will also not be liable. Framing fault As with conduct, incoherence similarly features at the of fault. Much of this concerns the imposition of constructive liability, although it also extends to assessment of culpability in disease transmission cases. Again, these tricky matters are highlighted by the SCP. (a) Section 18 At the head of the injury hierarchy, the text of s.18 stipulates “malice” as the required mens rea standard. Nowadays, this term is understood as meaning intention or recklessness. However, despite this, s.18 can only be committed intentionally; recklessness is insufficient. Significantly, the actus reus of s.18 – wounding or causing GBH – attaches to two mens rea modes: intention as to causing GBH or intention as to resisting/preventing the lawful apprehension or detention of any person. This produces four variants of s.18: wounding with intent to do GBH;
recklessness will suffice. The latter requires, amongst other things, that the risk must have been an objectively unreasonable one to take in the circumstances. Many non-serious infections are transmitted between people all the time – an obvious example being the common cold. Clearly, it is objectively reasonable to run the risk of transmitting such illnesses in daily life. Problematically, this presupposes that distinctions between serious and non-serious diseases can be drawn. As the scoping report identifies, individuals have different susceptibilities and ailments that are regarded as “minor” may do more serious harm to one person than to another. Nonetheless, even in these situations, the possibility of transmission is still likely to be an objectively reasonable risk to take. Elsewhere, inclusion of serious disease transmission under offences 1 and 2 marks no change from current law: their equivalent crimes (ss.18 and 20) already include this harm within the meaning of GBH. Overall, in defining conduct, the new hierarchy presents a simple and logical ladder of harms across offences 1, 2 and 3. It is therefore more intelligible to practitioners and the public. However, in some respects, the revised scheme of harms perpetuates existing problems. In particular, the scoping report is vague about the boundary between “serious injury” and “injury”. Of course, some degree of overlap in classifying harms is inevitable. However, the scoping report could have been clearer on this distinction. For example, it notes that the word “serious” remains ambiguous, before debating – without resolving – whether it might be preferable for offences 1 and 2 to require “exceptionally grave injury”. That extra layer of definition would have better delimited the severity of physical or mental suffering that isolates offences 1 and 2 from offence 3. It is therefore regrettable that the scoping report does not provide more precision on how “serious” should be understood, especially given that demand for precision on this issue is longstanding. At the moment, assuming the split between “serious injury” and “injury” mimics the actus rei divide between ss.18/20 and 47,