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Copy of Non-fatal offences against the person - Criticisms

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nicky taylor

on 7 July 2016

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Transcript of Copy of Non-fatal offences against the person - Criticisms


Non-fatal offences against the
person
Criticisms

The Law Commission in
Legislating the Criminal Code: Offences Against the Person and General Principles
criticised the Non Fatal Offences Against a person. They claimed there were three issues with the law;
Wording
Structure
and Inconsistency in Sentencing

Sentencing
The hierarchy of the offences is criticised
Furthermore......
Section 20 and
Section 18
Criticism of
proposals
Poor structure, terminology and definition
"Inflict" Vs "Cause"
The word "wound" is confusing.... there is no explanation of the level of injury
Wording
Common Law Assault and Battery are not defined in the legislation. There is a lack of codification. (Kracher)
The word "wound" has a technical meaning rather then a
common meaning. It is the break in the continuity of the
whole of the skin (JJCvEisenhower 1983) therefore technically even a tiny graze can result to a Section 20
charge. The term is too broad - often charged as ABH
It is implied that the word "inflict" requires a battery to take place . In RvBurstow the House of Lords debated this and Lord Steyn decided that the two words were interchangeable. Lord Hope reinforced this by stating that "there was no difference"
The Draft Bill has received much criticism which has lead to
a lack of progress in its introduction and means it has not
been enacted.

There is a major inconsistency between the maximum
sentence that is received for common law Assault &
Battery and an ABH offence under Section 47.
For common law maximum sentence is 6 months imprisonment and for Section 47 it is 5 years imprisonment.
when the only difference is the ABH caused which can be as little as causing discomfort to a person.
Section 20 is defined as GBH or wounding with intent to cause some harm this is in contrast to Section 47 which requires an Assault or Battery causing ABH (a lower form of injury).
The wording of Section 20 is greater and carry's a more serious definition yet the the maximum sentence for the two offenses is exactly the same.

It is implied that Section 18 is more serious then
Section 20 yet the maximum sentence for Section 20 is
5 years.
whereas the maximum sentence for Section 18 is
a life sentence. The difference between the sentence is due
to the Mens Rea of the defendant.
However there is no consideration of the level of injury. A victim can sustain the same injury in both instances.
Statutory definitions are old, over 100 years old.
Advantage- it is easy to modify the law through common law
Disadvantage- it is not stable and subject to change
The legislation was enacted in 1861, making it outdated.
There is a confusion to the meaning of the word "malicious"

In section 20 its interpreted to mean "intention or recklessness to
cause some harm" (RvMowatt).This is in contrast to Section 18 where it is swept aside because there is need for direct intent. It is essential for Section 20 but its only used with the secondary
M/R in Section 18.
The
CPS Charging Standards
recommend more minor injuries are charged under S47 but these are only guidelines and not legally binding.
The main criticism stems from the use of the words inflict" (Section 20) and "cause" (section 18)
The expansion of the definition may have have a negative effect as it is easier to charge the
defendant with S.20.
The inconsistency does not seem fair.
It is true that common judicial practice does not
permit this happening often. It is very rare that
the maximum sentence will be imposed, but
still the inconsistency is present in
the technicality.
Proposed Reforms

Law Commission published a report
'
Legislating the Criminal Code: Offences Against
the Person and General Principles'

in 1993. The
report described the OAPA 1861 and the law of
common assault as
'... inefficient as a vehicle for
controlling violence... many aspects of the law
are still obscure and its application erratic..'.
The Law
Commission
The report contains a draft bill
Home Office published a consultation paper
'Violence: Reforming the Offences against the
Person Act 1861' which included a Draft Bill.
The Bill was largely based on the Law Commission
proposals. The Bill set out the offences in a
more logical structure, replacing the offences
under the OAPA 1861.
The Draft
Bill
Proposals
Assault and battery
Statutory definitions for these offences


S47- An offence of intentionally or recklessly causing
injury to another.
Sentencing remains the same. Not
necessary to prove the injury was caused by an assault or battery
S20- An offence of recklessly causing a serious injury to another.
Increase sentence by 2 years. Removed word 'inflict'
and replaced with 'cause'. No reference to wounding.
S18- An offence of intentionally causing a serious
injury to another.
To carry a maximum sentence
of life. No reference to wounding.
S47- It has been argued that the proposed new S47 offence of intentionally or recklessly causing injury to another should be split
into two offences, intentionally causing injury to another and
recklessly causing injury to another. This would bring the
offences in line with those replacing S20 and S18
offences. The word 'serious' remains
undefined.
There is also concern that the proposals have still not been
adopted and the law remains unsatisfactory
Absence of clear hierarchy of offences-"ragbag of offences brought together..."
Grevious Bodily Harm
Serious and really serious harm (DPP v Smith)
Bollom - characteristics taken into account when determining if injuries equal GBH
ABH & GBH can include psychiatric injury but what distinguishes minor and serious
Dica and Konzani - courts recognised transmission of HIV as GBH- what about other medical conditions?
R v Golding convicted of s20 for transferring herpes - less serious than HIV, should it be an ABH instead?
'maliciously' -in s.20 it is 'intention' or 'recklessness' as to whether some harm MIGHT occur but in s18 it is 'intent'
Actual Bodily Harm
Some guidance about clarity of ABH (Donovan, 1934; Miller, 1954; Chan-Fook, 1994) but still lacks clarity.
In DPP v SMith the High Court ruled cutting off a ponytail was ABH
Intention to resist or prevent lawful apprehension. Mowatt -word 'malicious' means nothing. Prof. Smith & Hogan said prosecution must prove D was at least reckless as to causing some harm in this case.
A s.20 can carries the same sentence yet is deemed more serious - yet the AR and MR required are much greater than a s47
Only 23% of those charged under s18 are actually convicted with it
Constructive Intent
Possibly most serious criticism -seen in both s47 and s20 - where D is made liable to possible 5 yr sentence, because of the outcome -which in many cases is unforeseen or unintended - than the degree of the MR
Runs counter to basis requirement of criminal liability -that it should depend on and reflect the MR possessed by the D
For s47- prosecution only has to prove the D was reckless as to the assault or battery and the ABH was a result of that
For a s20, the MR requirement is intention or recklessness as to causing some harm only. tempting for the CPS to lower a s18 charge to a s20 to gain conviction
Fails to take into account legitimate concerns of victims or societies' interests
Scoping Consultation Paper
Whether the present OAPA needs updating or replaced
Whether assault/battery should be included
How the reform might affect liability in transmission of disease
Common assault must be clearly defined - 2 separate charges
Hirst states battery must always include a direct forcible infliction of violence and cannot be an omission (Fagan)
Problem with consent - only a trifling or transient nature
Incoherence of offence classification
Fewer simpler broader offences would be better to cover the same ground (Lord Simon). Though Prof Gardner states it would be wrong to classify offences solely by the harm caused
Proportionality in offences - too similar or too strong (s18 resisting arrest)
Each offence should have clear and accurate label
Full transcript