Law Reforms Non-Fatal Offences

Example Questions Critically evaluate the current law on non-fatal offences, and suggest any reforms that you consider might improve the law. (25 marks) Consider what criticisms may be made of the non-fatal offences against the person. Discuss what reforms might be introduced to deal with these criticisms. (25 marks)

Mark Scheme Potential Content (A) Structural, language and antiquity issues: maximum sentences and the hierarchy of offences; antiquated and ambiguous language (for example ‘malicious’, ‘grievous’, ‘actual’, and the problems with the use of the term ‘assault’). (B) Specific actus reus and mens rea issues, including issues with a defence of consent: assault/battery as a requirement of liability for non-serious injury; definition of actus reus of assault; mens rea and the principle of correspondence; the consent framework and the nature of the exceptions. Sound: actus reus and mens rea issues or consent issues (C) Appropriate suggestions for reform in relation to (A) and/or (B). These should be related to the evaluation (and especially to any criticisms advanced) and should, where possible, draw on substantial proposals (such as those made by Law Reform bodies and/or expert commentators).

What the mark scheme tells us We need to be aware of structural/language issues as well as specific actus reus and mens rea problems. The suggested reforms generally cover one of each of the above and fit together nicely

Law Commission A Law Commission Report published in 1993 described the OAPA 1861 and law of common assault as: ‘inefficient as a vehicle for controlling violence’ where ‘many aspects of the law are still obscure and its application erratic’ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271986/2370.pdf

The report

Widespread criticism of the legislation governing the non-fatal offences has led to the Criminal Law Revision Committee publishing proposals for REFORM in 1981. These proposals formed the basis of the Law Commission Report 1993 and an attached draft Bill later updated in the Home office Bill 1998 that was never put before Parliament.

General criticisms AR and MR criticisms The GENERAL STRUCTURE of non-fatal offences (NFO) has been criticised for being complicated and illogical. The OAPA 1861 is Victorian legislation that was never intended to be a logical and consistent set of rules as it is a piece of legislation that simply brought all the then applicable laws into one Act, called a consolidation act. This means the sections are randomly ss47, 20 and 18 because the Act also includes other sections setting out the law on matters as diverse as poisoning and kidnapping. The OAPA does not include Common Assault which is not even defined in an act, though has been clarified as an offence in the CJA 1998 leading to further confusion. The phrase BODILY HARM has also caused much criticism as it is used in S47, S20 and S18 but has no statutory Definition. The courts have had to interpret the phrase widely to cover matters which were beyond the Victorian legislators’ contemplation. For example Chan Fook said bodily harm should include depression for ABH and Ireland said more serious psychiatric harm for GBH, to ensure cases of stalking and harassment by electronic means could be criminalised. In Dica the notion of biological GBH was developed to allow the Ps who wilfully spread aids to be prosecuted for this offence. Clearly when the act was developed medical knowledge was not sufficiently developed to understand how such diseases could be spread and the law is criticised for applying many different meanings to a similar phrase but across 3 different offences.

Reform Home office draft Bill in 1998 defined injury to include physical and mental injury with definitions and a much closer link to medical definitions, immediately improving the criticism on the use of archaic language for an easily understood word that has very clear boundaries. However the reform suggested means that only intentional serious injury can be committed through transmitting a disease, and it is not clear what diseases would be included, so even the reforms suggested lack clarity in some areas. http://www.lawteacher.net/PDF/Reform%20of%20OAPA.pdf

General criticisms AR and MR criticisms The language used in NFO’s is ANTIQUATED AND OUT OF DATE. Lord Steyn commented in Ireland; Burstow (1997) regarding the meaning of GREVIOUS BODILY HARM that ‘the Victorian legislator ... would not have in mind psychiatric illness’ but illnesses affecting the mind are now an established area of medical health and legislation needs to reflect this. Judges have found ways to establish liability for psychiatric harm in the stalking cases (e.g. Constanza) but the liberal interpretations they imposed upon the wording of GBH in the Act in order to achieve this have been the subject of much criticism. This area of law has been REFORMED as stalkers can now be prosecuted under the Protection from Harassment Act 1997 as opposed to the OAPA 1861, clearly a DESIRABLE development in this area of increasingly prevalent criminal behaviour. The meaning of WOUNDING is also not set out in the Act and case law has provided that it means a breaking of both layers of the skin (Eisenhower). This does not match the normal understanding of the word and this means that a person can be charged under s20 for wounding by merely pricking their victim’s finger with a pin. However, the Charging Standard recommends that such minor injuries including small cuts and lacerations would be more appropriately charged under s47. However CPS Charging Standards are guidelines to assist prosecutors and are not legally binding upon the courts. Once the charge is determined, the courts will be decide the case in accordance with statute and case authority, potentially leading to serious offences for minor wounds.

Reform 1993 LC report on OAP: Language totally altered to suite modern understandings. The word injury is used and defined in the proposed bill making it clear it includes physical as well as mental injury. This resolves the complexity of definitions through case law for all NFO’s making law fit for purpose, e.g. no more problems with wound being technically just a pin prick and risk of injustice.

General criticisms AR and MR criticisms The phrase ASSAULT has also been criticised as it is used to cover a wide range of injuries from the technical meaning of words alone, in Ireland, to the confusion of use in S47 ABH, where its use was finally interpreted to mean either a battery or assault in cases like Savage. S47 of the OAPA 1861 only uses the word ‘assault’ when this is also meant to cover battery. The common law offence of Common Assault adds to this antiquated and complex system of NFO’s by requiring reference to hundreds of years of case law to correctly interpret the law, e.g. the issue of when a withdrawal of an assault requires research into the case of Tuberville v Savage, a 300 year old case with little similarities to situation that would arise today, in this case the drawing of a sword. The issue of INFLICT in S20 has also caused frequent criticism from the very outset of the act and whether this meant anything significantly different from cause in S18. At its narrowest interpretation in Clarence (1888) ‘inflict’ was understood to need an assault or battery requiring the application of direct force. In this case the court held that the defendant had not inflicted grievous bodily harm on his wife when he infected her with gonorrhoea on the basis that her consent to sexual intercourse meant that there had not been a battery. In other cases the courts had taken a much wider view of the word inflict meaning there was no need to prove an application of direct force. In the case of R v Martin (1889) the court held that the D shouting fire in a theatre when he had locked all the exits was an infliction of GBH on the V’s who were seriously injured. The meaning of inflict was finally decided in R v Ireland (1997), where the House of Lords ruled that there was no necessity to apply direct or indirect force. However, eventhough the issue is now resolved there has been a significant number of cases upto 1997 where the issue has caused inconsistent decisions and injustice.

Reform OPA LC report 1993 combines all offences into one Bill including assault and battery. Assault is still used as a phrase for the least serious NFO but battery as a phrase would be abolished as would the use of assault in any other NFO, resolving all the problems with misunderstandings of the phrase. The offence of assault is very clearly defined as applying force to body or causing V to believe that force was imminent give much clearer definitions and stopping mistakes being made through having to look at old and archaic case law. There is a clear definition of what is now S20 as Reckless serious injury which uses the word cause, finally resolving the debate on the issue of inflict as requiring an assault/battery.

General criticisms AR and MR criticisms Section 39 of the CJA 1988 and ss47, 20 and 18 were not designed to work as one coherent HIERACHY OF OFFENCES. Accordingly, there is not a logical sentencing structure that reflects the seriousness of each offence, known as the ladder principle. Lord Bingham has recently put it that ‘ the interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than he deserves or acquitted altogether.’ For example this is risked with s39 of CJA 1988 and s47 since the threshold of harm that qualifies as ACTUAL BODILY HARM is set very low, ‘transient and trifling’ (R v Miller (1954), and injuries at the lower scale of s47 and those charged under s39 of the CJA 1988 are morally similar but the respective sentences of five years and six months do not follow a clear hierarchy of seriousness and can be seen as unjust. CONSTRUCTIVE INTENTION, an MR concept, has been criticised in the offence of S47 ABH and S20 as the P only have to prove a lower level of blameworthiness to establish a much more serious level of MR and offence. For example even though Roberts only intended to touch the girls leg, a battery, proving the MR of the battery was sufficient to show that D had caused and should be blamed for an ABH (Savage). This is unfair to D’s as they should only be found guilty of an offence if it can be shown they have the MR for it, in otherwords an intention or recklessness as to the ABH, not just the battery. On the other hand in Mowatt, a S20 offence the courts argued that making a D liable for a more serious offence by proving the MR of a lesser offence would serve to act as a deterrent and was in the interests of V’s and society as a whole.

Reform AS the LC Bill 1993 would encompass all NFO’s there is a coherent hierarchy in terms of seriousness, also reflected in the sentencing of each offence, sticking to Bingham’s ladder principle, allowing for much fairer charging and sentencing. The most serious offence does not differentiate between police and public as there are other offences on statute books that deal more fairly with police related assaults, if necessary.MR now links clearly to the level of awareness of the D, e.g. Reckless serious injury is required for S20 where D must be proved to have recklessly caused serious injury, not just some harm. LAW REFORM under the 1998 draft Bill says that harm intended or foreseen must correspond to the offence committed abolishing the much criticised mens rea principles in Roberts and Mowatt. Accordingly, the reckless defendant will only be convicted under the new s47 if he has foresight of the injury as opposed to the battery that caused it and he must have foresight of serious injury to be convicted for grievous bodily harm.

General criticisms AR and MR criticisms Problems encountered in defining fear of ‘immediate’ personal injury in assault. Courts have had to define v wide to cover stalking cases such as Smith v Woking but definitions have not always been helpful, e.g. Ariobeke where trial judge defined the word too widely meaning D initially convicted of Manslaughter. The word MALICIOUS in S20 and 18 is not defined in the Act and was interpreted in R v Cunningham (1957) to cover recklessness but its usual and modern meaning would usually imply bad motive and wickedness. Furthermore, whilst ‘maliciously’ provides the only clues as to mens rea under s20 it has an unclear purpose in s18, where the mens rea is made clear by the words ‘with intent’. Malicious in S18 has been interpreted in Mowatt/Morisson to be used where the D is resisting arrest, effectively lowering the MR of S18 for the AR of the offence where this circumstance arises, to protect officers who act on behalf of the public to prevent injury and death. However, as the act provides no clues as to the words use this may not have been parliaments’ intention.

It would be DESIRABLE to adopt the reforms to resolve many of the criticisms of NFO’s. There are statutory definitions for assault and battery, ending the complexity of archaic case law surrounding these offences .S47 is replaced by the offence of intentionally or recklessly causing injury to another person with a maximum prison sentence of five years. Prosecution will no longer need to prove that the injury was caused by an assault or battery. ‘Injury’ is defined to mean ‘physical injury’ which includes pain, unconsciousness and any impairment of a person’s physical condition and also ‘mental injury’, which includes any impairment of a person’s mental health. Sections 20 and 18 are replaced by the separate offences of recklessly causing a serious injury to another and intentionally causing a serious injury to another. The maximum prison sentences are seven years and life imprisonment respectively. There is no longer any reference to wounding so the problem that a minor wound can be charged under these sections is removed. The troublesome word ‘inflict’ is removed and all references are to ‘caused’. Intention and recklessness are clearly defined in this proposal so creating a harmonious, logical and easily understood set of NFO’s which will meet the needs of society and surely offer a more just approach to such offences.

Reform Bill sent to parliament in 1998 but nothing done so law is still complex, outdated and uncertain. Unfortunately repeated governments have taken no action to adopt the proposals regardless of the clear DESIRABILITY for this to happen so justice can only be currently served through the complex web of case law created by judges to interpret old statutes in the light of a modern and more complex society.

Model Answers http://survivinglaw.blogspot.co.uk/2012/06/law03-non-fatals-evaluation.html http://e-lawresources.co.uk/Non-Fatal-Offences-Against-the-Person---Criticisms.php file:///C:/Users/m.crump/Downloads/3.%20A-level%20Law%20Feedback%20on%20A2%20Post-event%20handbook%20SKM.pdf