Evaluation of non-fatal offences

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  • Created by: debbieoxt
  • Created on: 14-05-18 21:02

Problems with assault and battery

  • No statutory definition of the offences, only the sentences are contained in statute law (s.39 Criminal Justice Act 1988). Courts have had to defone assault and battery (Fagan and Ireland). Judges are making law, undemocratic, goes against separation of powers. Furthermore, judges have widely interpreted words such as immediate to mean in a minute or two in Ireland. Language is misleading. Example - assault generally conjures up an image of a physical attack, but legally no physical contact is needed. Battery suggests a higher level of force than actually required by law. To add to this, assault is used to refer to both the offences, even though they are two offences, this is misleading. There is no clear dividing line between assault/battery and s47, for example, a small bruise could come under battery or s47 ABH, however the maximum sentences both differ greatly,assault is 6 months and ABH is 5 years. The 2015 law commission's proposals seems to clear these misunderstandings. They have suggested renaming assault to threatened assault and battery to physical assault to minimise confusion. Also, they have proposed a new offence of aggravated assault which will deal with low level injuries. In conclusion, there are many problems with the current law dealing with assault and battery, namely the language is misleading, the definitions do not come from Parliament and there is an overlap with s47. However, the new proposal should help clear the problems.
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Problems with s47 ABH

  • S47 is defined as 'assault occasioning actual bodily harm' under the Offences Against the Person Act 1861, however the definition fails to define what 'actual bodily harm' is. This was later defined by the courts in Miller. This is undemocratic as judges are making law, which is the role of Parliament. Furthermore, judges have widely interpreted 'bodily harm'. It now includes psychiatric harm according to Ireland and DPP v Smith, yet it is unlikely the draftsmen would have had this type of harm in mind. On one hand, it is necessary for the judges to intervene and give meaning to the words in light of current issues and changes, but on the other hand, this goes against the idea of separation of powers. The definition of s47 includes that an assault has to be proven which caused the actual bodily harm. This is misleading as this also includes a battery. In addition, to be found guilty of a s47 offence, the actus reus and mens rea for assault or battery has to be proven. This means where D did not foresee or intend 'actual bodily harm', they can still be found guilty of an s47 offence (Savage). This seems unfair, especially as the maximum sentence for s47 is 5 years and assault/battery is 6 months. The structure of the act is illogical, s47 and 20 have the same maximum sentence yet the actus reus and mens rea for s47 is less than that required for s20. Illogical numbering system, least serious offence is further down than most serious. The 2015 law commission's proposals have proposed to remedy much of the problems with s47. Clause 3 (s47) would cover offences where D intentionally or recklessly caused injury to V. This removes the need to prove assault/battery and the mens rea corresponds with the actus reus. In conclusion, there are many problems with s47 ABH, primarily due to the act being from 1861. The act is outdated and to add meaning, judges have interpreted the law which is undemocratic. However, if implemented, the 2015 proposals should help to make the law much fairer.
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Problems with s20 GBH

  • S2o GBH has been defined in the OAPA 1961. The first problem is that the act is outdated. As a result, judges have intervened to give meaning to words in the act. Psychiatric harm is not a recognised injury under s20 GBH from the case of Burstow. STDs have also been recognised as an injury under s20 - again, this as decided in case law in Dica. The word maliciously used in s20 and 18 has not been defined in OAPA 1861 and has been interpreted by the courts in Cunningham to mean recklessly - this is clearly an extention of its ordinary meaning. This means judges are overstepping their powers and blurring the theory of separation of powers by deciding the law, in order to bring the law up to date. Currently, s20 GBH deals with wounding/GBH with intention or recklessness. This has caused confusion over which harm comes under s20 and 18 if the offence has been committed with intent. It has proven to be difficult to determine which harm is serious enough to come under s18 as the actus reus for both offences is the same. S20 uses the word inflict and s18 uses the word cause, yet both mean the same thing (Burstow). Therefore, there is an unneccessary change in the wording of the act within two sections,when both the words mean the same thing. Furthermore, the maximum sentence for s47 and 20 are the same, 5 years, even though the level of harm is very different. Additionally, the mode of trial for s20 and 47 is the same, which seems illogical. Lastly, there is a large gap between s20 and 18, yet the main difference between the two is mens rea. Thr 2015 law commission's report has proposed to remedy much of the problems with s20. Clause 2 (s20) would cover an incident when D recklessly causes serious injury to V. This will make the difference between s20 and 28 much clearer. Additionally, the maximum sentence would increase to 7 years. This would reflect the seriousness of the offence in comparison to s47. In conclusion, there are many problems with s20, mainly due to the act being outdated and therefore failing to take into account changes in society. However, if the 2015 report recommendations are implemented much of the prolems associated will be remedied.
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Problems with s18 GBH

  • S18 GBH is defined in the OAPA 1861. The first problem is that the act is outdated. The offences do not run on a chronological order, s18  is the most serious yet it is first in the act. In addition, currently s18 GBH deals with intention to cause GBH/wound and also with maliciously wounding/causing GBH with intent to resist an arrest. This is very confusing as two different offences are governed under the same section. The 2015 law commission's report has proposed to remedy the problems with s18. Clause 1 will deal with D intentionally causing V serious injury. This would make the distinction between s20 and 18 much clearer, with clause 2 (s20) dealing with serious injury caused recklesslu and clause 1 (s18) dealing with serious injury caused intentionally. Also, the commission has proposed a separate clause 6 to real with causing serious harm when intending to resist arrest. This will remedy the confusion with the current s18 dealing with two separate offences in the same section. In conclusion, if the 2015 report is implemented, the above problems would be remedied, resulting in a much clearer set of rules governing non-fatal offences.
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