A03 For Non Fatal Offences Flashcards
Dis 1 - s20?
Dis - OATP is over 160 years old and when it was created mental health problems were not widely known,
so the act only referred to ‘bodily harm’ in the offences and did not mention any mental
harm.
Result - As a result, it was unknown whether the offences could include mental harm and to
fill this gap the courts in Chan Fook and Burstow held that the meaning of ‘bodily harm’ did
include mental health, so D’s can be convicted for this.
Counter - This is an example of judges
developing the law to provide fairness and to reflect modern society, however it can be
argued that their role is only to apply the law so this conflicts with the Separation of Powers
and Parliamentary Sovereignty.
Dis 2 - s20?
Dis - Another problem is infecting another person with a disease is not included in the 1861 Act
as there was only limited understanding of this and the idea that a criminal offence could be
committed by infecting someone with a disease was certainly not thought of then.
Result - Again,
the courts filled this gap by ruling in Dica (2004) that infecting someone with HIV did come
within the wounding of inflicting grievous bodily harm.
Counter - Having to reform law case by case makes law complex and conflict with rule of law as rules not all in one place. And advising clients harder.
Dis 1 - s47?
Dis - There are also inconsistencies with regards to the mens rea required for the different types
of non-fatal offences, for example s.47 has the same mens rea as assault and battery. It
does not require that D intended or even realised there was a risk of injury.
Result - This appears
unfair as the maximum for a s.47 is 5 years imprisonment and it is triable either way
whereas for an assault or battery the maximum is 6 months, and it is a summary offence. Not intended to commit that crime but much harder punishment.
Counter - However this could become common knowlege if the courts make an example out of it putting people of off commiting crimes making society safer.
Dis 2 - s47?
Dis - Additionally, a person who causes a small cut can be charged with the more serious offence
of s.20 instead of the lesser offence of s.47.
Result - This is potentially unfair as there are different levels of wounds and many don’t equate to GBH this means s47 should be reformed so it clarifies and seperates the types of cuts clearly .
Counter - Same punishments so deosnt matter that much and other areas should be focused on moreas they are more urgent.
What piece of legislation set out several recommendations for changes to OATP 1861?
The law commission report 2015
What are the 3 principles that The Law Commission Report 2015 said a new statue should respect?
1) It should provide a clear hierarchy of offences from most to least serious :
Harm caused, culpability of D and Max sentence.
2) Each offence should provide a clear and accurate label for the conduct and be defined in language that is easy to understand.
3) Each ingredient of the offence - external or mental element - should be set out explicitly.
Why are the 9 points to consider for A03 criminal law?
Fit for purpose
Up to date
Just or unjust
Effective or ineffective
Balances, principal, and policy
Fair or unfair based on sound moral principles
Certain - linking with the rule of law
Judge-made linking with SOP and PS
