Unit 3 Criticism Essay: Non-fatal Offences Against the Person (Criticism 2…
Unit 3 Criticism Essay: Non-fatal Offences Against the Person
Judge Goymer describes law on non-fatals as
' Out of date and in some areas obsolete as new ways of offending are not adequately captured'
Current law has been deemed unsatisfactory and regulary criticised by the LC. In the
2015 Scoping Report No. 361 - ' Reform of offences against the person'
Non-fatals are the most common offences dealt with. Current law contained in the
CJA 1988 and OAPA 1861
. Creates multiple sources of law ( case law and statutes) lack of a consolidated legal authority.
The LC recommended possible reforms bought about in the modified version of the
Home Offices 1998 Draft Bill
. Little reform has been implemented but these are the current desirable proposals for reform.
Criticism 1: Mens rea element
However, could be argued that it acts as a deterrent for future D's. Preventing potential V,s harm
Home Office bill recommends modification of the offences to deal with the lack of coincidence. S.20 would be replaced with an offence such as AR: D must cause serious injury. MR: D must foresee serious injury. Instantly creates clarity and holds d accountable for true mental fault.
Some offences mens rea does not match the seriousness of the act as defined by the actus reus
.EG S.20 GBH
: AR -
MR - intention or recklessness as to **some harm. (Mowatt)
Could be seen as unjust as D could be convicted when they were only reckless to causing a minimum level of harm. Not held to account for to level of his mental fault
However this reform could see a less desirable amount of justice served to the defendant from the point of view of the victim as they are receiving lessened sentences.
Criticism 2: Poor language
However, this has allowed for the courts to develop the act in line with society and cases dealt with in the court
Recommends a review of the outdated language in order to create a more modernised definitions for clarity,
Wounding has been removed and will now be classes in an offence depending on a wounds serious ness. As injury of serious injury. More coherent structure and would follow the Charging standards view that minor cuts should be classed as a lower offence.
Language is often poorly defined and misleading. Victorian legislation is over 150 years old, high volume of outdated and archaic language. can lead to confusion as interpretation can be difficult. lead to a lot of judicial interpretation to bring clarity for aspects of the Act.
However, the reform could create further confusion as key words/phrases are redefined.
'Occasioning actual bodily harm' the word 'Occasioning' is seen as outdated and not often used in the modern day language causing some confusion. lack of clear definition in the sections leading to statutory interp. EG, S.18 and S.20 where wounding is held as a break in the continuity of the whole skin. ( Eisenhower). To broad of a description and statutory interp is undemocratic.
Criticism 3: Hierarchy
However, this structure has been used for many years with 26,000 prosecutions a year. Showing it could be successful to some extent.
suggests the creation of a new offence. 'Aggravated assault' this would bridge the gap between common assault and ABH. correctly labels those who do more then mere assault but don't deserve more the 12 months. 73% of ABH convictions receive a 12 month sentence. lead to more consistency.
Incoherent and unsatisfactory hierarchy of seriousness leading to an arguably unjust sentencing structure. inconsistent such as with the large gap between the max sentence for common assault and ABH. there may be over lap in seriousness as ABH only requires more than merely trivial and wholly insignificant.
However, implemented it could take time for judges to use the new structure correctly.
Some offence could fall both in to S.39 and S.47 as they are morally similar. The difference in 6 months to 5 years is unjust. Another example is the same sentence of S.47 and S.20. creates illogical structure that doesn't reflect level of seriousness.