Evaluation Of Non Fatal Defence Flashcards
(Front – P):
The language in the OAPA 1861 is outdated and unclear.
Dev/I/E/H:
• Development: Terms like “maliciously” are not defined in the statute and must be interpreted through case law, creating inconsistency.
• Impact: This can lead to unpredictable outcomes and confusion, especially for juries and non-lawyers.
• Example: In Cunningham (1957), “maliciously” was interpreted to mean recklessly, which goes beyond its usual meaning of bad motive.
• However: Case law helps update the interpretation, allowing the law to evolve without needing constant statutory reform.
(Front – P):
The definitions of assault and battery are unclear and inconsistent.
Dev/I/E/H:
• Development: The term “common assault” is used inconsistently, and the offences are not clearly defined in legislation.
• Impact: This causes uncertainty in charging and can lead to appeals or delays due to legal technicalities.
• Example: S39 Criminal Justice Act 1988 uses “common assault” and “battery,” but S40 uses only “common assault”.
• However: Courts have created clear principles through precedent, providing some clarity even without statutory definitions.
(Front – P):
The distinction between “inflict” and “cause” in S20 and S18 creates confusion.
Dev/I/E/H:
• Development: Initially, “inflict” (S20) required assault or battery, while “cause” (S18) did not—but now courts treat them as having the same meaning.
• Impact: This allows for serious liability under S20 without sufficient fault, which may be unfair.
• Example: In Burstow (1997), psychological harm without physical assault was held sufficient for S20.
• However: This flexibility has allowed the law to address modern harm (like psychological injuries), which Victorian lawmakers couldn’t foresee.
(Front – P):
The definition of “wounding” under the OAPA 1861 is too broad and unrealistic.
Dev/I/E/H:
• Development: “Wounding” is not defined in the Act; case law has interpreted it to include any break in the skin.
• Impact: Even minor injuries like a pinprick could meet the definition of a wound, leading to disproportionate charges.
• Example: JCC v Eisenhower (1994) – internal bleeding wasn’t a wound as skin wasn’t broken.
• However: CPS Charging Standards guide prosecutors to charge more minor injuries under S47—but these are only guidelines, not law.
(Front – P):
There’s a lack of consistency in how offences are structured and categorised.
Dev/I/E/H:
• Development: The OAPA 1861 and S39 CJA 1988 were not designed as a logical hierarchy of offences.
• Impact: This causes confusion and inconsistency in charging decisions and sentencing.
• Example: S47 has the same mens rea as S39 despite carrying a longer sentence.
• However: Judges may use discretion to give fairer sentences, even if the structure is flawed.
Introduction
Non-fatal offences under the Offences Against the Person Act 1861 (OAPA 1861) have faced heavy criticism for being outdated, inconsistent, and unclear. Reform is widely agreed upon, as the law lacks necessary definitions and clarity, leading to confusion in its application.
Conclusion
Reform of OAPA 1861 is essential due to its outdated and inconsistent nature. Although proposals have been made, they haven’t been adopted, leaving the law unsatisfactory. Clear and fair reform is needed to improve the legal framework for non-fatal offences.
