Evaluate the current law on non fatal offences, including suggestions for reform
Law surrounding non fatal offences has been much debated and it seems unanimously accepted there is need for reform. The Offences Against the Person Act 1861 (OAPA 1861) has been heavily criticised . When it was written it aimed to bring together common law into a statute and was never written as a logical and consistent set of rules.
As Henry LJ argued the law is
.. in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free... [OAPA 1861 is] yet another example of how bad laws cost money and clog up the courts with better things to do... (Lynsey ).
The Criminal Law Revision Committee (1981) looked at need for reform, due to widespread criticism. The Law Commission published a report
Legislating the Criminal Code: Offences Against the Person and General Principles in 1993 which included reforms in a Draft Bill.
The Law Commission have described OAPA 1861 as
... inefficient as a vehicle for controlling violence... many aspects of the law are still obscure and its application erratic...
In 1998, the Home Office published a consultation paper
Violence: Reforming the Offences against the Person Act 1861 which included a Draft Bill, largely based on the Law Commission proposals.
The OAPA 1861 lacks definitions of key words and phrases which therefore must be developed through case law which is less finite. Terms are constantly being argued and redefined in appeals, leading to a lack of clear decision making.
maliciously is used in S20 and S18, but not defined in OAPA 1861.
Maliciously been interpreted to mean
recklessly (Cunningham (1957)) which is clearly an extension of its ordinary modern meaning (simply imply bad motive).
maliciously is used to infer mens rea, under S18 it is unnecessary as mens rea is defined as
The definition of the offences of assault and battery are important as used as elements of other offences.
However, confusion surrounds the precise meaning of assault, compounded by the use of the term
common assault (referring to assault and battery). The word
assault has been used in different ways in different statutes, even within the same statute. For example, S39 of the Criminal Justice Act 1988 (CJA 1988) refers to
common assault and battery but S40 refers to
a common assault .
No statutory definition of the offence of assault despite the length of sentence and offence classification being set out in S39 of CJA 1998.
‘Inflict’ and ‘cause’
S20 defines the offence by the phrase
inflict any grievous bodily harm compared to S18 which states
cause any grievous bodily harm.
Originally it was understood that
inflict had a narrower meaning than
cause and required an assault or battery. Now it is established that
cause have the same meaning and do not require assault or battery (Burstow (1997)).
The wider interpretation is criticised for permitting liability under S20, where there is insufficient fault on the defendant’s behalf to justify such a serious conviction. Perversely, a defendant could be held liable for a S20 offence with mens rea of subjective recklessness more easily than liable for the lesser offence under S47 which does require an assault.
The OAPA 1861 does not define term
Through case law, breaking of the skin has developed as the key factor (JCC v Eisenhower (1994)). This definition does not follow the normal understanding of the word
Theoretically allows for an injury caused by pin prick to be counted as a S20 wounding offence. The CPS Charging Standards recommend more minor injuries charged under S47. These are only guidelines which are not legally binding and once a charge is brought it will be decided in relation to case law and statute.
Many aspects of this area of the law are seen as inconsistent.
The offence under S39 of the CJA 1998 and offences under S47, S20 and S18 of the OAPA 1861 are not designed as a logical hierarchy. This causes inherent problems with non fatal offences against the person.
There are conflicting ideas about what is sufficient mens rea.
S47 offence has the same mens rea as the lesser offence of assault or battery (Roberts (1971)). It is argued that this is unjust as it does not even require defendant to realise that there is a risk of any injury.
Liability for GBH will occur where the defendant intended minor harm or was reckless as to causing some harm (Mowatt (1976)). This has been criticised as the punishment fails to meet the culpability of the defendant and is therefore unfair.
Inconsistencies exist in the maximum sentences available for each offence.
For an offence under S39 of the CJA 1998, maximum 6 month prison sentence compared to a maximum 5 year prison sentence for a S47 offence under the OAPA 1861. The mens rea is the same for these offences. It is argued such a variance in potential sentence is unjust.
Under OAPA 1861, both a S20 and S47 offence have maximum 5 year prison sentence. Both offences require the same mens rea but a S20 offence causes a much more serious injury.
Legal philosopher HLA Hart wrote:
.. [illogical sentencing] might bring the law into disrepute.. principles of justice or fairness between different offenders require morally distinguishable offences to be treated differently and morally similar offences to be treated alike....
The OAPA 1861 is 150 yrs old which causes problems. Strengthening the demand for updated legislation to cover new circumstances. It is argued that the Act does not reflect social issues and concerns relevant today. Since there have been vast changes in way we communicate, issues raised by use of telephones and emails etc.
Judges have to interpret the law in relation to completely new technologies or more developed understanding.
bodily harm used in S47, S20 and S18, did not recognise possibility of psychiatric illness caused through fear and required judges to develop case law alongside greater medical knowledge (Ireland (1997)). Lord Steyn noted:
.. the Victorian legislator.. would not have in mind psychiatric illness... (Burstow (1997)).
Proposals for reform: Draft Bill
The Draft Bill set out a number of reforms and aimed to provide much needed reform.
It replaces the old offences with a more logical structure.
S39 offences are replaced with statutory definitions for assault and battery.
S47 offence is replaced with an offence of intentionally or recklessly causing injury to another. To carry a maximum sentence of five years imprisonment. It is not necessary to prove injury was caused by an assault or battery.
S20 offence is replaced with an offence of recklessly causing a serious injury to another. To carry a maximum sentence of seven years. It removed the word
inflict and replaced with
cause. There is no reference to wounding.
S20 offence is replaced with an offence of intentionally causing a serious injury to another. To carry a maximum sentence of life. There is no reference to wounding.
There is a definition of
physical injury (including pain, unconsciousness and any impairment to physical condition) and
mental injury (including any impairment of a person’s mental health).
The harm intended or foreseen must relate to the offence committed (contrary to Mowatt (1976) and Roberts (1971)).
Intention and recklessness are expressly defined.
The Draft Bill received much criticism leading to a lack of progress in introduction. It has still not been enacted.
It has been argued 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 new S47 offences in line with those replacing S20 and S18 offences.
The definition of
injury is criticised for failing to make a clear distinction between what is sufficient for an injury and what would be charged as the lesser offence of assault.
serious remains undefined. The term
assault continues to mean both an assault and battery.
There are also concerns that as proposals are still not been adopted the law remains unsatisfactory.