NonFatal Offences Evaluation Question you need to be

Non-Fatal Offences Evaluation

Question you need to be able to answer • Critically evaluate the current law on non-fatal offences, and suggest any reforms that you consider might improve the law (25 marks)

Criticisms 1. 2. 3. 4. Problem of language Problem of hierarchy of seriousness Problems of Mens Rea Outdated

Criticisms - Introduction • Law Commission Report 1993 described OAPA and common assault as “inefficient as a vehicle for controlling violence” where “many aspects of the law are still obscure and its application erratic” • Law on non-fatal offences often criticised for being chaotic, unjust, irrational, outdated and unclear

Problem of Language – General • Key words used in ss 47, 20 and 18 OAPA not defined in the statute so require interpretation • Terminology like “grievous”, “actual” and “bodily harm” is continually evolving through cases – leads to inconsistent decision making

Malicious • In everyday life, how would you use the word “malicious”? • What other words would you use in its place? • Would you ever use it to mean reckless?

Problem of Language – “Malicious” • A lot of the language is old fashioned and badly drafted • e. g. “maliciously” in ss 20 and 18 – interpreted in Cunningham to cover recklessness but usual modern meaning implies a bad motive. • Also, “maliciously” is the only clue for MR in s 20 but completely pointless in s 18 where MR is made clear through the word “intent”

Problem of Language – “inflict/cause” • There are inconsistencies in the use of language • S 20 uses “inflict” while s 18 uses “cause” • “Inflict” used to be interpreted narrowly so you needed to show an assault or battery (like S. 47) • But Ireland; Burstow held that “inflict” should be given the same meaning as “cause” therefore no need to show assault/battery • This is criticised as potentially allowing liability for s 20 when there is insufficient fault on D’s part to justify the serious charge • It could be easier to prove s 20 than s 47 (which requires an assault/battery to be found)

Wounding • Would you ever class a pin prick as a wounding in everyday life?

Problem of Language – “wounding” • Meaning of wounding not in the act and developed by case law • Current definition is breaking of both layers of skin – doesn’t fit the normal understanding of the word – could be liable for s 20 for pricking V’s finger with a pin • Although Charging Standard recommends such minor injuries are more appropriately charged under s 47 – but these are only guidelines, not legally binding

Problem of Hierarchy of Seriousness • Reminder of maximum sentences: – Assault – 6 months – Battery – 6 months – S 47 – 5 years – S 20 – 5 years – S 18 – life sentence

Problem of Hierarchy of Seriousness • Potential overlap between common assault and S 47 – threshold of harm for S 47 is set very low – all harm which is considered more than “transient and trifling” – Miller • Injuries for battery and those at lower end of S 47 could be morally similar but significant disparity in sentence (6 months v 5 years) • S 20 much more serious that S 47 but maximum sentence for both is 5 years • Maximum sentence for S 18 jumps to life imprisonment – may seem disproportionate when the only difference between S 20 and S 18 is motive and level of harm is the same

Problem of Hierarchy of Seriousness • HLA Hart said these issues “might bring the law into disrepute” as “principles of justice or fairness between different offenders require morally distinguishable offences to be treated differently and morally similar offences to be treated alike”

Out of the 5 Non-Fatal Offences, which have matching AR and MR and which don’t? • Assault? • Matching (both apprehension of immediate unlawful violence) • Battery? • Matching (both application of immediate unlawful violence) • S. 47? • Not matching (AR is ABH, MR is assault/battery) • S. 20? • Not matching (AR is GBH/Wounding, MR is some harm) • S. 18? • Matching (AR is GBH/Wounding, MR is serious harm)

Problem of Mens Rea • AR and MR often don’t match – MR is often for lower offence than AR • S. 47 – AR is actual bodily harm but MR is only for an assault or battery – does not need to intend or foresee any injury • S. 20 – AR is grievous bodily harm but MR is only “some harm” (Mowatt) • These are criticised for failing to match punishment to the culpability (blameworthiness) of D – therefore unjust

Problem – Outdated • Legislation drafted in a different age – needs updating to better reflect concerns of modern society • Lord Steyn in Ireland; Burstow – “the Victorian legislator…would not have in mind psychiatric illness” but mental illness now an established area of medical health • In 1861 – no telephone, email, text etc. • Judges have had to use very liberal interpretation in order to include psychiatric harm and written communications via modern technology • Dica – biological GBH (AIDS transmission) – judges had to use very liberal interpretation and the OAPA is not really suitable to deal with cases to do with transmission of AIDS or STIs

Suggested Reforms • Criminal Law Revision Committee published proposals for reform in 1981 • These proposals formed the basis of the Law Commission Report 1993 and an attached draft Bill which was never put before Parliament • Labour Government produced a consultation document and draft Bill in 1998 – “Violence: Reforming the Offences Against the Persons Act 1861” very similar to Law Commission Bill including the following proposals:

Reform 1 – Statutory Definitions • Statutory definitions are provided for assault and battery

Reform 2 – S. 47 replaced • New offence of intentionally or recklessly causing injury to another person • Maximum sentence of 5 years • No longer a need to prove assault or battery • “Injury” defined to mean “physical injury” – including pain, unconsciousness and any impairment of a person’s physical condition, and also “mental injury” – including impairment of a person’s mental health

Reform 3 – S. 20 and S. 18 Replaced • Separate offences of: – Recklessly causing a serious injury to another – Intentionally causing a serious injury to another • Maximum sentences – 7 years (reckless) and Life (intent) • No more reference to wounding • Word “inflict” is removed and all references are to “cause”

Reform 4 – Mens Rea • MR matches the offence • Reckless D only charged under new S. 47 if he has foresight of the injury rather than just the battery • Reckless D only charged under new S. 20 if he had foresight of serious injury

Reform 5 - Infection • Apart from new S. 18 “physical injury” will not include disease – person only liable if he intends to infect another with a serious sexual disease – reckless infection not an offence

Criticisms of the Reforms • Reforms never enacted but still attract criticism • New S. 47 should also be divided into 2 separate offences based on recklessness or intent • Definition of “injury” still fails to establish clear dividing line between what might constitute S. 47 and what would be battery • “Serious” not defined • “Assault” continues to mean both assault and battery