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Criminal | Offences Against The Person

Non-Fatal Offences: Evaluation & Reform

Revision Note | A Level

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Introduction

  • non fatal offences have been criticised, unanimously accepted there is need of reform
  • Offences Against the Person Act 1861 (OAPA 1861) has been heavily criticised

    Lynsey [1995]

    • D spat in V’s eye, D being held for shoplifting by a police officer
    • Henry LJ: .. Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person 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..
  • OAPA 1861 aimed to bring together common law into a statute, never written as a logical and consistent set of rules
  • issues surrounding non fatal offences arise from OAPA 1861 lacking basic explanation and clarity

Language

  • OAPA 1861 lacks definitions of key words and phrases
  • definitions must be developed through case law, less finite
  • terms are constantly being argued and redefined in appeals
  • leading to a lack of clear decision making

‘Maliciously’

  • word maliciously used in S20 and S18, but not defined in OAPA 1861
  • maliciously been interpreted to mean recklessly (Cunningham (1957)), clearly an extension of its ordinary modern meaning (simply imply bad motive)
  • under S20, maliciously used to infer mens rea, under S18 it is unnecessary as mens rea is defined as with intent

Assault

  • definition of offences of assault and battery important as elements of many offences, but are unclear
  • confusion surrounds precise meaning of assault, compounded by the use of the term common assault (referring to assault and battery)
  • 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
  • offence of assault not clearly defined in legislation, although the length of sentence and offence classification is 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 understood that inflict had a narrower meaning than cause, required an assault or battery
  • now established inflict and cause have the same meaning, do not require assault or battery (Burstow (1997))
  • wider interpretation criticised for permitting liability under S20, where there is insufficient fault on D’s behalf to justify serious conviction
  • perversely, D 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

‘Wounding’

  • OAPA 1861 does not define term wound
  • through case law, breaking of the skin has developed as the key factor (JCC v Eisenhower (1994))
  • definition developed does not follow the normal understanding of the word wound
  • theoretically allows for an injury caused by pin prick to be counted as a S20 wounding offence
  • CPS Charging Standards recommend more minor injuries charged under S47, but only guidelines not legally binding, once a charge brought it will be decided in relation to case law and statute

Inconsistency

  • many aspects of this area of the law are seen as inconsistent

Offences

  • offence under S39 of the CJA 1998 and offences under S47, S20 and S18 of the OAPA 1861, not designed as a logical hierarchy
  • causes inherent problems with non fatal offences against the person

Mens rea

  • 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))
  • argued this is unjust as it does not even require D to realise that there is a risk of any injury
  • liability for GBH will occur where D intended minor harm or was reckless as to causing some harm (Mowatt (1976))
  • can be criticised as the punishment fails to meet the culpability of D and therefore unfair

Sentencing

  • inconsistencies exist in the maximum sentences available for each offence
  • for an offence under S39 of the CJA 1998, maximum 6 month prison sentence
  • for a S47 offence under the OAPA 1861, maximum 5 year prison sentence
  • mens rea is the same for S39 and S47 offences, so argued variance in potential sentence unjust
  • under OAPA 1861, both a S20 and S47 offence have maximum 5 year prison sentence
  • both S20 and S47 offences require the same mens rea, S20 offence causes a much more serious injury
  • on illogical sentencing, legal philosopher HLA Hart wrote: .. [it] 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...

Outdated

  • OAPA 1861 is 150 yrs old which causes problems
  • problems can help strengthen the demand for updated legislation, to cover new circumstances
  • argued that the OAPA 1861 not reflect the social issues and concerns relevant today
  • vast changes in way we communicate, issues raised by use of telephones and emails etc
  • leaving judges to interpret the law in relation to completely new technologies
  • similar problems in medical field
  • phrase bodily harm used in S47, S20 and S18, did not recognise possibility of psychiatric illness caused through fear
  • 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))
  • knowledge about transmission of disease has developed, Ds now liable for infecting others with HIV (Dica (2004))

Proposals for reform

  • this area has been the focus of ongoing interest and various proposals

Criminal Law Revision Committee

  • Criminal Law Revision Committee (1981) looked at need for reform, due to widespread criticism
  • published findings which lead to the Law Commission undertaking research in the area

Law Commission

  • published a report Legislating the Criminal Code: Offences Against the Person and General Principles in 1993
  • report described OAPA 1861 and law of common assault as ... inefficient as a vehicle for controlling violence... many aspects of the law are still obscure and its application erratic..
  • report also contained a draft bill, but it has not been considered in Parliament

Draft Bill

  • in 1998, Home Office published consultation paper Violence: Reforming the Offences against the Person Act 1861 which included a Draft Bill
  • Bill largely based on Law Commission proposals
  • Bill set out offences in a more logical structure, replacing the offences under the OAPA 1861

    • Assault and battery

  • statutory definitions for these offences

    • S47

  • an offence of intentionally or recklessly causing injury to another
  • to carry maximum sentence of five years imprisonment
  • not necessary to prove injury was caused by an assault or battery

    • S20

  • an offence of recklessly causing a serious injury to another
  • to carry maximum sentence of seven 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 maximum sentence of life
  • no reference to wounding

    • Injury

  • injury defined
  • including physical injury (including pain, unconsciousness and any impairment to physical condition)
  • alsomental injury (including any impairment of a person’s mental health)

    • Mens Rea

  • harm intended or foreseen must relate to the offence committed (contrary to Mowatt (1976) and Roberts (1971))
  • intention and recklessness are expressly defined

Criticism

  • Draft Bill received much criticism, leading to a lack of progress in introduction, not been enacted
  • argued 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
  • would bring the S47 offences in line with those replacing S20 and S18 offences
  • new definition of injury 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
  • word serious remains undefined
  • term assault continues to mean both an assault and battery
  • concern as proposals still not been adopted, law remains unsatisfactory
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