evaluation of non fatal offences Flashcards
point1 language
the language used is frequently not consistent with the modern day use and understanding of language and as a result there has to be extensive common law interpretation
dp 1
For example, 5.20 OAPA states “unlawful and malicious, and the word malicious is understood today as cruel or intending to do harm, though this was interpreted in Savage to mean intentionally or recklessly and yet for S.18 the word ‘malicious’ does not add anything to the mens rea, s .18 is a specific intent crime.
This inconsistency could be argued to make the offences contrary to the rule of law in that they are not easily understood by ordinary people, and as Sir James Stephen stated in 1877 ‘no-one who was not already wel acquainted with the law would derive any information from reading the statute’: This suggests that the law is in dire need of reform.
wdp 1
Furthermore, the terms ‘assault” and “battery are ambiguous and have connotations of something physical and aggressive, which can cause issues of fair labelling as the general public do not understand the technical meaning of either offence. Reforming the law and creating clearer offences would remove this
misunderstanding and stigma.
point 2 correspondence principle
A further reason why the offences need reforming is because in the current law the offences do not always form to the correspondence principle, as the mens rea of the S.47 and S.20 do not correspond with the
actus reus.
dp 2
For example, the mens rea for S.47 is that of the base assault or battery, and the defendant need not even realise the risk of injury. This results in the defendant being liable for a serious offence against the person, when they may have only been reckless as to the application of force (or even only causing the victim to apprehend force!).
wdp 2
However, one key function of the law is to balance competing interests and this demonstrates the promotion of the victim’s interests, which the general public would agree with as the victim is the one who has suffered injury at the hands of the defendant.
p 3 application
A further issue with the law which clearly demonstrates a clear need for reform is that it is arguably not applied as it technically should be. This can then lead to confusion and could lead to issues with fairness if the law is being correctly applied to everyone.
dp 3
For example, a black eye is technically ABH but more commonly charged as common assault. Technically a pin prick is a wound, but would be more appropriately charged as ABH. This clearly demonstrates a need for a clearer hierarchy of offences that accurately reflect the seriousness of the act.
wdp 3
However, CPS / charging guidelines, and discretion in sentencing, remedy this to an extent. This is because the CPS and the judge sentencing can take into account all of the relevant factors and charge / sentence appropriately. This then suggests that the law may not be in such an urgent need of reform, as it is working effectively.
