Criticisms and Reforms of the OAPA 1861 Flashcards
Why is the language of the OAPA 1861 criticised?
The language is old fashioned and unclear, using terms like “grievous” and “malicious” which confuse modern juries and legal practitioners
How is the structure of offences under the OAPA problematic?
The offences are not graded logically by seriousness, e.g., ABH (s47) carries the same maximum sentence as GBH s20, even though GBH is more serious
What is the problem with the word “inflict” in s20 GBH?
It suggests that direct physical contact is needed, although cases like R v Burstow showed that serious psychiatric harm can also amount to GBH, causing confusion
Why is the mens rea requirement criticised in the OAPA?
Under s20, D only needs to forsee some harm, not serious harm, even though the offence punishes serious injury - the AR and MR don’t match, which seems unfair
Why are sentencing powers under the OAPA criticised?
ABH (s47) and GBH (s20) both carry a maximum sentence of 5 years imprisonment, even though GBH involves far greater harm, leading to inconsistent justice
What language reforms have been proposed?
The law commission suggested repalcing terms like “grievous” and “malicious” with clear modern language like “serious injury” and “intentionally or recklessly causing harm”
How could the structure of offences be improved?
Create a tiered system that clearly distinguishes between levels of harm and levels of fault (e.g. recklessness vs intention)
How could the MR for serious offences be reformed?
The law commission recommends that for the most serious injuries, D should have to intend or forsee serious harm, matching the harm caused with the mental state required
What was the draft bill proposed by the law commission in 2015?
It proposed clear, modern offences like “aggravated assault” and “serious injury with intent”, aiming to replace the confusing offences in the OAPA 1861
Name 2 law commission reports recommending reform of the OAPA 1861
Law Com 20.218 - legislating the criminal code: Offences Against the Person and General Principles
Law Com No.361 - Reform of the Offences against he Person
Why is there confusion between assault and battery in the OAPA?
They are not clearly separated in the Act- both fall under ‘common assault’ and the law had to be clarified through case law (e.g. Fagan v MPC) instead of by statute
What confusion has arisen about psychiatric harm under OAPA?
Cases like R v Burstow and R v Ireland had to interpet ‘bodily harm’ to include psychiatric harm, but this was not clear in the original Act, leading to uncertainty
How does the outdated OAPA affect legal certainty?
Defendants and victims face uncertainty about charges because judges must rely heavily on case law interpretation, making outcomes unpredictable and undermining the rule of law
Why has Parliament delayed reforming the OAPA 1861?
Law reform is politically low priority; Parliament tends to focus on newer, urgent issues (terrorism, Brexit) and technical reforms like OAPA modernisation are repeatedly pushed aside
What did the Law Commission propose in 2015 to replace the OAPA?
A new Act with simple offences like ‘intentional serious injjury’ and ‘reckless injury’ using clear, modern language and ensuring proportionality in sentencing
