Non-Fatal Offences against the Person - Reform

Question 1

4 Reforms in the Law Commission’s Scoping Report on OAP- list of reform proposal

Answer 1

1. The main injury offences should follow the “correspondence principle”, in which the harm required to be intended or foreseen matches the harm
   done. For example, for an offence of “recklessly causing serious injury”, it should be a requirement that the defendant foresaw a risk of serious injury.
2. As concerns disease, the 1998 draft Bill should be modified to follow the scheme of the existing law, in which there are no specialised offences of transmitting disease but reckless transmission can fall within general offences of causing injury. If it is desired to consider any other scheme, this should be done in a wider review devoted to this one subject.
3. There should be an offence of “aggravated assault”, meaning any assault which in fact causes an injury: this new offence would sit between the offence of intentionally or recklessly causing harm and the assault
   offences. The maximum sentence for this summary only offence should be 12 months.
4. There should be no general offence of recklessly endangering people, but the existing endangerment offences involving poisons, explosives and railways should be replaced by similar (but simpler) offences.

Question 2

Law Commission’s Scoping Report on OAP - criticisms of current law

Answer 2

1. There are too many narrowly defined offences about the same subject, where fewer and simpler offences would suffice; for example there are three offences of poisoning, four concerning explosives and three
   concerning railways.
   (2) In some cases, the same section contains a list of different but related detailed situations, leaving doubt about whether the section creates one offence or several. One example is section 18, which arguably creates four offences, covering ten different factual situations.
   (3) The order and grading of the offences by seriousness is unclear. Even when it is clear which offences are meant to be the more serious, the
   differences are not always reflected in sentencing powers. For example, the offence under section 20, involving “grievous bodily harm”, carries the
   same maximum sentence (5 years) as that under section 47, involving only “actual bodily harm”.
   (4) There are many rarely used offences, some of which seem no longer to be necessary: an example is the offence of assaulting a magistrate or other person in the exercise of his or her duty preserving a wreck.
   (5) The Act uses archaic vocabulary, such as “grievous” (to describe a serious injury) and “detainer” (to mean detention).
   (6) It uses words without a clear meaning, such as “maliciously”, that have required extensive interpretation by the courts and are sometimes
   redundant.
   (7) It refers to specific devices and chemicals as means of committing offences, such as laudanum, and is therefore liable to obsolescence as these means fall out of use or further inventions are made.
   (8) It refers to obsolete legal concepts, such as felony, misdemeanour and penal servitude, which have to be re-interpreted by provisions in other statutes.
   (9) It does not state the penalties for major offences, such as those under sections 47 and 20: these have to be deduced from a chain of interlocking provisions in other statutes.

Question 3

Law Commission’s Scoping Report on OAP - Assault & Battery reform

Answer 3

> The names “assault” and “battery” are misleading. We recommend that the offence of inflicting violence should be called “physical assault” and that the offence of causing V to think that violence is imminent should be called “threatened assault”.
Join together into one single offence covering both behaviours.
Introduce the offence of “aggravated assault.”

Question 4

Law Commission’s Scoping Report on OAP - Injury Offences

Answer 4

> The draft Bill contains three new offences of causing injury, as follows:

(1) Intentionally causing serious injury (clause 1); maximum sentence: life.
(2) Recklessly causing serious injury (clause 2); maximum sentence: 7 years.
(3) Intentionally or recklessly causing injury (clause 3); maximum sentence: 5 years.

Question 5

Law Commission’s Scoping Report on OAP - Injury Offences - omissions

Answer 5

The draft Bill provides that the clause 1 offence (intentionally causing serious injury) can consist of either an act or an omission; the other two injury offences must consist of an act. It also provides that all these offences can include a case where D culpably fails to prevent the consequences of his or her previous act (or omission in the case of clause 1).

Question 6

Law Commission’s Scoping Report on OAP - Injury Offences - Definition of Injury

Answer 6

> Injury is defined as including both physical and mental injury. Except for the purposes of clause 1 (intentionally causing serious injury), both physical and mental injury exclude “anything caused by disease”.
There is a strong body of opinion, especially in the medical profession and groups concerned with HIV and sexually transmissible infections, that the
transmission of these diseases should never be criminal unless done intentionally.
So only clause 1 covers transmission of STDs.

Question 7

Law Commission’s Scoping Report on OAP - Injury Offences - Definition of Injury - why only make STDs transmission criminal if intentional?

Answer 7

(1) an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute
recklessness;
(2) it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;
(3) it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;
(4) because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and
(5) the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people infected with HIV; the existence of an offence reinforces both these
phenomena.

Question 8

Law Commission’s Scoping Report on OAP - Injury Offences - Definition of Injury - why only make STDs transmission criminal if intentional? arguments against

Answer 8

1. In particular, under the draft Bill it would not be criminal to transmit HIV, an STI or any other disease even in the course of a rape or an assault.
2. If D is aware of a risk of transmission, and V is not aware of it, it seems reasonable that the major share of responsibility for avoiding the risk should lie on D rather than on V.

> Therefore we should stick with the current Act.