Non fatal offences against the person - reform

Question 1

Law Commission Reform for non-fatal offences against the person

Answer 1

• Law Commission Scoping Report, Offences Against the Person 2015
• Main injury offences should follow ‘correspondence principle’ in which harm required to be intended or foreseen matches the harm done
• ‘Maliciously’ and ‘grievous’ lack clear definitions in current law
• ‘assault’ and ‘battery’ are misleading in current law
• Differences in seriousness of offences is not reflected in sentencing powers
• Proposed new offences:
  1. Intentionally causing serious injury – life imprisonment
  2. Recklessly causing serious injury – 7 years
  3. Intentionally or recklessly causing injury – 5 years
  4. Aggravated assault – 12 months
  5. Physical assault – 6 months
  6. Threatened assault – 6 months

Question 2

Critical commentary for non-fatal offences (2)

Answer 2

• Clarkson
  o Current law is illogical and chaotic
  a) It is illogical that a wounding (which could only be minor cut) is treated as serious bodily harm
  b) Why should a defendant be guilty of the most serious non-fatal offence, section 18, carrying a maximum of life imprisonment, when only minor injury is foreseen but there is an intention to resist arrest?
  c) It is unclear whether there is a difference between causing grievous bodily harm in section 18 and inflicting grievous bodily harm in section 20
  d) A section 18 offence can be committed “by any means whatsoever” while a section 20 offence allows the violence to be inflicted “either with or without any weapon or instrument.” What is the difference?
  e) Correspondence issue - The only mens rea required for inflicting grievous bodily harm contrary to section 20 is that the defendant foresees the risk of some bodily harm.
  f) Similarly, with section 47the defendant must cause actual bodily harm but need not realise that this is possible. The mens rea of a mere common assault (assault or battery) will suffice
  g) Sections 20 and 47both carry the same maximum penalty of five years’ imprisonment. This is a serious distortion of the relative seriousness of the offences.
  h) A battery involves a ‘hostile’ touching – uncertain what this means
  i) Assault and battery and s.47 can be committed intentionally or recklessly – despite Savage/Parmenter there is confusion over whether this is subjective or objective
• Gardner
  o Lack of clarity in the current law and inconsistency violates the rule of law – how can the law be consistently applied and interpreted by judges in the courtroom as well as citizens trying to follow the law if it is illogical and incoherent