NFO evaluation Flashcards
What are the 4 main points to include in an evaluation essay about NFO?
-Outdated
-Inconsistencies
-Correspondence principle
-Archaic language
What to include in the introduction?
-Offences against a person act 1861
-Criminal justice act 1988
-Provide the law on assault, battery, AOABH, GBH and Wounding
-The law commission and other law reform bodies have criticised the law
Point and A01 for outdated
Point: made in 1861 so 150yrs old.
A01: knowledge of scientific value not available. V’s have to rely on common law.
-Mental health issues not known about so under s47 or s20 or s18 causes the V depression it was not covered.
-R v Burstow set precendent where woman suffered psychological harm.
-Chan fook psychiatric harm could be recognised
-Diseases not well known. Not considered bodily harm
-R v Dica changed it in 2004 after man guilty of s20 offence when infected 2 with HIV
Criticism and counter argument/reform for outdated
Criticism: 2015 law commission report suggested law should be clear on psychiatric injury
-Spreading diseases with intent or recklessness should be included in statute
-Law would be more clear and victims receive justice
-Counter: although outdated provides flexibility as judges can set precedent in fast changing society. Judges can act fairly on case by case basis.
Inconsistencies Point and A01
-Point: Inconsistencies between non-fatal offences and in this area
-A01: Offence under s39 of CJA and S47 S20 and S18 of OAPA not designed as logical hierarchy.
-Conflicting ideas abt mens rea. s47 same mens rea as assault and battery which are lesser offences. Roberts argued unjust as not require D to recognise risk of injury for GBH. Only intended to applH force which is battery but bc she was injured which he didn’t foresee he was charged with AOABh
-Small cut can be s20 which requires intention or recklessness whereas s47 don’t need to prove. Someone who foresees cut can be convicted of larger offence (Morrison)
Inconsistency criticism and reform
-Criticism: Lack of logical hierarchy, problems as not a sensible approach to A0ABH and mens rea of more serious offences
-Issues arounds mens rea which all offences seem the same but large difference in actus reus
-Reform: 2015 report makes mens rea clear and ensures that dfts can’t be held responsible for a crime they did not foresee as much higher prison sentence at 5 years.
-Suggests 2 new sections on resisting arrest and one for serious injury caused by resisting arrest and the other for minor injury. can;t be held liable for an injury they did not foresee when resisting arrest
Corespondance principle (point and A01)
Point: both CJA and OAPA act under scrutiny as principle is that the outcome the dft intends should match the actual outcome. not the case
-A01: In s20 the dft does not have to intend or foresee risk of serious injury but can still be guilty of wounding or GBH. R v Burstow, dft did not intend or foresee the depression but was guilty.
-s47 doesn’t require dft to foresee injury
Correspondence principle (Criticism and reform)
-D should not be liable of an offence unless they meant to do it or were reckless
-But current law, can be guilty of s20 and s47 without any intention or recklessness for that harm. All that needs to be proven is that there was intention or recklessness to do some harm. Correspondence breached
-Reform: 2015 law commission report: dft must intend or foresee the particular outcome
Archaic language (point and A01)
POINT: lang used outdated and not used in 21st century.
-A01: Maliciously used in MR of wounding S20. Cunningham states means intention or recklesses but has connotations of illwill and deliberation. In s20 inflict is used but s18 cause.
Archaic language (criticism and reform)
-Criticism: maliciously has multiple connotations and meanings so unclear in court. meaning of s20 also unclear. Confusing as to whether technical assault is required for s20 as burstow says it is not.
-lacks definition of key words, definitions in case law which aren’t as definite. OAPA doesn’t define wound, JCC v Eisenhower.
-Reform: 2015 law commission report: threatened assault replace common assault and refelcts modern version. cause used throughout to prevent confusion. use reckless so that it is clear and easy to apply
Conclusion
1861 and 1988 act in need of reform as clear a lot needs to change so not caught out by technicalities. 1998 draft bill and 2015 law commission report provide clear and easy to follow structure, allow fair rulings.
