Revision Booklet (1 of 3): Question (C) Evaluation and Reform

Non-fatal offences against the person Murder / voluntary Manslaughter *Defences

29th November 2010

*the exam question is most likely to be on Murder, Manslaughter or Non-fatal offences

Potential Question (1): Non-fatal Offences against the Person

Example of a potential examination question Critically consider the strengths and weaknesses of the current law on non-fatal offences against the person, including in your answer any appropriate suggestions for reform. (25 marks)

Potential Content (A) Critical consideration of structural issues (connected, for instance, with sentencing). Language and associated issues (B) Critical consideration of specific actus reus and mens rea issues (including the issue of consent in non-fatal offences) Note: The potential content should be understood to include some discussion of possible reform, though this need not apply to every issue in the potential content

Examiners Report Again, there were many excellent answers, and few candidates were unable to make at least a reasonable attempt. Candidates explored both general structural issues and more specific actus reus and mens rea issues. Discussion of structural issues tended to focus on matters which included inconsistency in sentencing; the (alleged) illogical numbering of offences, the fact that assault & battery are not incorporated into the 1861 Act, and problems with language issues.

Some very good examples of the latter were given, referring to out-of-date terms such as “occasioning”, “grievous”, and “malicious”, with strong use of authority. Typical actus reus issues considered included the difficulties in the interpretation of “immediacy” in assault and the nature of “wounding” as a kind of injury rather than as a level of injury. Mens rea issues addressed included the lack of correspondence between actus reus and mens rea in most of the offences, particularly in s47 and s20.

Candidates also frequently referred more approvingly to the capacity of the Courts to adapt the law to changing circumstances, such as the recognition of harassment and the phenomenon of transmission of serious infections such as HIV. For some candidates, however, this was yet another weakness, since it indicated that the framework of the law was significantly defective and needed to be subjected to modern legislation. On the whole, candidates avoided discussion of reforms, but when they were introduced, they were often linked perceptively to the deficiencies already identified.

Model Answer (1): Non-fatal Offences against the Person

Discuss the extent to which the law relating to non-fatal offences is in need of reform. [25]

Summary of intro…

The law relating to non-fatal offences has been criticised on a number of grounds, most authoritatively by the Law Commission who stated that the language is outdated and obscure, the structure of the offences is illogical and many of the laws are ineffective by today‟s standards. This essay will explore the central criticisms of the OAPA with reference to case authorities and briefly explore attempts to reform the law.

PC 1 language: with examples

The Language used in the OAPA 1861 is no doubt out dated for example the words „grievous‟ and „malicious‟ are not generally used in modern times and have required interpretation by the courts. Grievous being interpreted as meaning really serious (DPP v Smith) (or serious after Saunders (1985)) however, malicious has been given an interpretation quite unrelated to what one might expect. In general parlance the word malicious is perhaps related to evil or hatred whereas in legal terms malicious means intention or reckless. This was confirmed by Coleridge J in Martin (1881). The wording of the act creates grave uncertainly as the use of words like malicious have to be strained to give them a meaning that best fits the crime.

PC (1) Mowatt and ulterior intent

According to the case of Mowatt, for s18 offence the word maliciously appears superfluous as if one intends GBH, one must foresee GBH as a probable or possible outcome. There remains a real danger that in absence of at least some foresight of harm, the risk is present that if one accidently injures another in order to evade arrest may be guilty of an offence carrying a maximum sentence.

PC (1) issues over the terms assault and battery

There exist further problems with misleading language used.

For

example, in every day usage the word „assault‟ generally conjures up an image of physical attack whereas in legal terms no physical contact is required.

The term „battery‟ in general usage suggests a higher level of force than is actually required by law. The use of the word bodily harm under s.18, 20 and 47 includes psychiatric harm according to Ireland, Burstow & Constanza yet it is highly unlikely the Victorian Draftsmen would have had this type of harm in mind. On a positive note, it has allowed the law to develop, recognizing new offences such as Harassment; that said these are dealt with by other statutes like the Protection from Harassment Act (1997)

PC (1) Issues over the term inflict…

Use of the word „inflict‟ has caused the courts considerable problems. It was first interpreted as requiring proof of an assault or battery (Clarence). In Wilson it was stated all that was required was the direct application of force, however, in Martin the defendant was liable where the force was indirectly applied. In this case, D placed an iron bar across a fire exit in a theatre and shouted „Fire‟. Several people were injured in the panic to leave. D‟s conviction for GBH was upheld.

PC (2) differences between s.39 CJ and 47 OAPA…

The structure of the offences can also be criticised. There is no statutory definition of assault or battery and there are no clear boundaries between the offences. Any intentional touching of another without consent will amount to a battery (Collins v Wilcock) whereas any hurt or injury calculated to interfere with the comfort of the victim amounts to ABH (Miller). There seems little difference between the two other than interference with comfort yet battery carries a maximum penalty of 6 months whereas ABH 5 years.

PC (2) anomalies over AR and MR

The maximum sentence for s.20 grievous bodily harm (five years' imprisonment) is the same as that for s.47 actual bodily harm, even though the former is by definition more serious. This is illogical: either the sentence for GBH should be increased, or that for ABH should be reduced, or the two offences should be merged. The mens rea for several offences does not match the actus reus. A person who does not foresee any harm (but foresees apprehension or a mere touch) can be convicted of assault occasioning actual bodily harm (Savage); a person who foresees only slight injury can be convicted of inflicting grievous bodily harm. The mens rea for s.18 GBH or wounding, which carries a possible life sentence, could be no more than an intention to escape plus foresight of some (minor) injury.

PC (2) anomalies over wound in s.20

It is illogical to have a separate offence of wounding which is considered alongside GBH. A breaking of the 7 layers of the skin constitutes a wound (Eisenhower). Thus a pin prick could suffice which is clearly far removed from amounting to really serious harm.

PC (3) developments in the law

A number of cases (e.g. Burstow, Dica) show how the judges have been able to adapt the non-fatal assault offences to meet modern requirements. In 1993 the Law Commission recommended the creation of a specific offence of transmitting HIV recklessly, following the case of Roy Cornes, an HIV-positive hemophiliac who was accused of recklessly infecting four women. He died before his case could reach court. It appears as though the courts have created an answer to such problems under the common law and Dica confirms that the V must fully consent to the known risk of infection if the D is to be found not guilty of s.20 offence.

PC (3) Law Reform

What these cases illustrate is that there is a definite need to reform a law which is as outdated as it is confusing. The current framework under the OAPA creates confusion which can sometimes lead to illogical results. The Law commission have, on several occasions, tried to address the above issues, most notable in their Paper, "Legislating the Criminal Code: Offences against the Person and General Principles" (1993) and later in 1998. These have yet to be made into legislation but government has responded by stating that the aim of the proposed new offences would enable violence to be dealt with more effectively by the courts, with the law set out in plain, modern language.

Conclusion

Notwithstanding the suggested reforms, the 1994 charging standards have at least gone some way towards alleviating the above

inconsistencies and in addition, the sentencing tariffs have tried to draw a clear line between the offences of 47 and 20.

Model Answer (PC2): Break it down…
The question wants you to review 3 PCs. they are:

1. Issues over language 2. Issues of the structure of the offences 3. Developments and reform

Issue (1) Language 1

2

3

4

5

Model Answer (PC2): Break it down…
The question wants you to review 3 PCs. they are:

1. Issues over language 2. Issues of the structure of the offences 3. Developments and reform

Issue (2) Structure 1

2

3

Model Answer (PC3): Break it down…
The question wants you to review 3 PCs. they are:

1. Issues over language 2. Issues of the structure of the offences 3. Developments and reform

Issue (3) developments and reform 1

2

3

Sign up to vote on this title
UsefulNot useful