Non Fatal Offences AO3 Flashcards
non fatal ao3 - intro
what are the main problems?
- outdated - over 150 years old, judges have had to update the law to cover modern offences
- illogical hierarchy and structure of offences
- language used is archaic - need for modern, simplified language – uses words like malicious and grievous
non fatal ao3 - use of different words
gbh
problem - difference in wording between AR of both s.20 and s.18
- s.18 defined as ‘wounding or CAUSING GBH’ - s.20 defined as ‘wounding or INFLICTING GBH’
- the courts convict on the basis that ‘causing’ and ‘inflicting’ mean the same thing and essentially mean to do serious harm
- this may be confusing for lay people as that way there is nothing distinguishing the physical act of the two GBH offences, despite them having varying maximum sentences
- however, we should assume that as Parliament made the Act, they purposly chose different wording for the two offences and that there is an actual different between the two.
- this then poses the question as to why the courts are going against the doctrine of PS, and not convicting as they’re instructured
not fit for purpose?
non fatal ao3 - old language
gbh
outdated due to the language it uses, such as ‘wounding’ or ‘grevous’.
- these words are words that lay people may not understand, which can lead to a misunderstanding of the offence and what particularly is being charged, this can lead to miscarriage of justice.
- in reality, barristers and solicitors amend the language, which along with judges against the law goes against the doctrine of the SoP and PS, as they are not elected and therefore can’t be held accountable
- however, judges and barristers amending the law is beneficial as it makes the law simpler for lay people and means that modern offences can be convicted
non fatal ao3 - circular definition of gbh
gbh
another problem with gbh within OAPA is the circular definition of GBH, meaning the definition was given by the courts as Parliament didn’t apply one in OAPA
- GBH was defined in the case of Saunders as ‘serious harm’ and has then been used to define GBH in all cases since
- this is a problem because judges had to step in, fusing their branch of judiciary with the legislative, going against the doctrine of SoP (Montesquieu) and is judicial lawmaking
- judges should not be fusing their branches or making law as it is undemocratic - judges are not elected and therefore can’t be held accountable by the public
- although, it should be argued that judges creating a definition was beneficial as it has made it clearer what counts as GBH, meaning courts can convict offenders with ease
non fatal AO3 – papercut problem
One of the main problems with GBH within OAPA is that a wound is defined in Eisenhower as a “break in the continuity of the skin”.
- This essentially means that any cut would satisfy this requirement and be classed as a wound. This is too wide a definition as it could include harm that is clearly not serious.
- The Law Commission have suggested removing the word wound entirely which is a sensible idea and instead focus on “serious injury” which is a much clearer definition and one which laypeople would have a firmer grasp.
- Despite this, the courts generally ignore the law and instead use the charging standards when deciding what to charge a defendant with. This is concerning and lends the question as to why Parliament does not reform the law to reflect the charging standards instead if this is the desired option.
non fatal AO3 - outdated
GBH
problem - OAPA and therefore GBH is outdated
- burstow - victim was severely staked for 5+ years, showed that psychiatric harm can coujnt as GBH
- dica and rowe showed that a defendant can be charged with GBH by recklessly or intentionally transferring GBH.
- in both these cases, judges have had to step in to update the law, as there was little to no knowledge about mental health or HIV when OAPA was written in 1861, showing that the Act is no longer useful as it doesn’t include modern offences
non fatal AO3 – illogical hierarchy
GBH within OAPA has an illogical hierarchy as ABH and S.20 GBH both have a maximum sentence of 5 years imprisonment
- this is a problem because an offender who has caused much more significant harm to a victim (broken bones) can receive the same sentenec as an offender who causes much less harm (sprains/bruises). this can mean that offenders don’t receive the punishment their crime warrants.
- the law commission has suggested changing Section 20 GBH to 7 years, as the harm that warrants the offence is more serious
non fatal AO3 – circular definition
ABH
includes a circular definition
- abh is defined in the case of miller as ‘any harm calculated to interfere with the health or comfort of the victim’
- as parliament did not include a definition when it was written, judges have had to step in which goes against the doctrine of SoP and is judicial law making as these judges that are amending the law can’t be held accountable by the public
- the fact that judges are having to define the laww shows that OAPA has outlived its usefulness as it’s not clear, and therefore does not allow the judges to follow exactly what Parliament intended when they made the act - clear evidence that OAPA needs to be reformed, but Parliament has no interest in doing so
non fatal AO3 - outdated
ABH
ABH is outdated and doesn’t fit with modern society/offences
* ireland - victim received continous silent telephone calls, showed that psychological harm counts as ABH
- judges have had to step in and update the law because OAPA was written when there was little knowledge about mental health
- cases like ireland show that OAPA is no longer completely inclusive/accurate as the world has developed
- this means that it should by reformed, and by Parliament, to inclujde modern offences, so that issues of judicial law making and fusion of branches of teh government can be avoided
non fatal AO3 - AO3 – lack of MR for ABH part
ABH
MR for ABH is ‘intentionally or recklessly committing an assault or battery’
this means that the defendant does not have to intend to cause the harm, as shown in Roberys
* this is a problem as it can seem slightly unfair, as even though the defendant may not have intended to cause ABH they can still be liable for it.
* the fact that ABH has hugely different maximum sentences (6 months imprisonment for assault and battery) supports this, as a defendant can receive a much larger sentence due to the fact that their actions happened to cause ABH.
* on the other hand, it could be argued that this is fair due ot the thin skull rule as the defendant has to take the victim as they are, so if their actions occassioned an ABH they should be charged for it
* the law commission has suggested to change the mens rea to ‘intentionaly or recklessly causing injury’ - sensible idea as it would be simpler and use modern language, meaning lay people could understand and arguable be fairer for D
non fatal ao3 - assault and battery not in act
assault and battery are covered by common law and therefore not in OAPA, despite the fact that it is meant to be a consolidating statute.
- the fact that offences are covered in common law shows that they have been defined by judges, which raises the problem of judicial law making
- however, it is beneficial that judges did defined the offecnes as it means that people can achieve justice. assault and battery not being included in OAPA shows that it is not serving its purpose (consolidating statute), therefore has outlived its usefulness and needs to be reformed by Parliament
non fatal ao3 - confusion as to what constitutes assault
there is confusion amongst lay people about the different between assault and battery
most lay people assume that assault is also physical when it is essentially a threat
- this can be a problem as confusion from lay people can lead to a misunderstanding during their case, which in serious circumstanecs can lead to a miscarriage of justice.
- the law commission has suggested calling assault ‘verbal assault’ and battery ‘physical assault’, which is a good idea as it would make the law clearer for lay people, easily avoiding misunderstandings in the process of trying to achieve justice
non fatal AO3 – battery very wide definition
definition of battery is very wide
- collins v wilcock show that slightest touch is enough and it doesn’t have to be violent. thomas - touching clothes is enough for battery. martin - indirect application is enough, santana bermudez - omission
- this couild possibly cause a defendant to be charged incorrectly as there is so many possibilities, there is a high change of confusion. this would then mean a miscarriage of justice has taken place and more time and money would need to be taken to correct it
- on the other hand, a very wide defintion is beneficial, as it means battery will be easy to prosecute and identify when battery has been comitted
