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Non-Fatal Offences Evaluation (Hierarchy (Defies logical order, S.47 and S…
Non-Fatal Offences Evaluation
Introduction
Professor Clarkson 1993 'rag-bag of offences in dire need of reform'
Draft Bill Home Office 1998
Law Commission 2015
Main Act - Paragraph 1
'Workhorse of the criminal justice system'
26,000 cases per year
Jack Straw, Home Secretary 'outdated Victorian legislation'
Act was a consolidation act
OAPA 1861 - Paragraph 2
157 years old
'Malicious' in s.20 and s.18 had made judicial interpretation necessary e.g. Mowatt and was made unnecessary in s.18
GBH interpreted as some harm in Smith; Saunders
Wounding - Eisenhower - still has a wide range and is unclear
Terms not used commonly in the modern day
Ambiguous and confusing
LC has proposed a clearer hierarchy which would reflect the correct levels of AR and MR and follow the correspondence principle
Assault and Battery - Paragraph 3
Common law offences but charged under s.39 of the CJA 1988
s.47 - Assault Occasioning Actual Bodily Harm, is generic, encompassing both common law offences
Press coverage of the offences
Reform
Integrated into statute
'Physical assault' need not lead to injury and have a sentence of 6 months
'Aggravated assault' would lead to injury, albeit not serious one and attract a 12 month sentence
Aggravated assault still does not correspond AR to MR
Definition of ABH
Relies on judicial interpretation - Chan Fook 'any injury not so trivial as to be regarded as insignificant'
Definition has been stretched to include psychological harm which has to be medically evidenced which is discriminatory
Still does not offer perfect clarity
Causation
'occasion' s.47, 'inflict' s.20 and 'cause' s.18 have not been updated
LC would update these and allow transmission of disease (Dica; Golding; Konzani; Rowe) and psycological harm (Burstow) and silent phone call into assault (Ireland)
Hierarchy
Defies logical order
S.47 and S.20 are based on constructive offences where the injury determines the offence not the mens rea - 'a crime of half a mens rea' Professor Glanville Williams for s.47 (Savage)
MR and AR don't correspond for the statutory offences, especially with the resistance of arrest (Morrison)
s.47 and s.20 have the same level of sentence despite being harshly different levels of injury
s.47 has the same level of mens rea as assault but has a very different sentence
Sentencing
s.47 and s.20 hold the same maximum sentence despite having different level of harm
This then exceeds rapidly to life for s.18
Reforms
s.47 - would become I/R causing some injury - 5 years
s.20 R causing serious injury - 7 yera
s.18 intentionally causing serios harm - life
AR and MR would correspond and sentencing structure allows for differination
malicious removed as unneccesary