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/uplo
ads/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 nonfatal 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%20OAP
A.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
•
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.
AR and MR criticisms
•
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
• 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.
AR and MR criticisms
•
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/la
w03-non-fatals-evaluation.html
• http://e-lawresources.co.uk/Non-FatalOffences-Against-the-Person---Criticisms.php
• file:///C:/Users/m.crump/Downloads/3.%20Alevel%20Law%20Feedback%20on%20A2%20P
ost-event%20handbook%20SKM.pdf