Non Fatal Offences AO3 Flashcards
Out of Date? AO1?
Common law assault - Section 39 of the Criminal Justice Act 1988.
Common law battery - Section 39 of the Criminal Justice Act 1988.
ABH - Section 47 of the Offences Against the Person Act 1861.
GBH without intent - Section 20 of the Offences Against the Person Act 1861.
GBH with intent - Section 18 of the Offences Against the Person Act 1861.Out
Out of Date? AO3? Codification?
- The 1861 act is over 150 years old and despite the fact that assault and battery are very common offences are not defined in statute law.
- It would seem appropriate for Assault and Battery to be codified into parliamentary law.
- Law Commission Report 2015 recommends that the act should be replaced by a comprehensive modern statute.
Out of Date? AO3? Mental Health?
- There are no mental health references as they weren’t considered during the 1860s, only physical factors.
- The Courts through the case of Burstow addressed this problem through judicial precedent.
- The act does not cover whether the infliction of disease is harm, Courts used Dica to enable this.
- Some argue that this isn’t a problem as the role of case law is to fill in statute law.
- However, others think that unelected judges should not be making law, it is the job of parliament and therefore, they should be updating the act.
Inconsistency between Offences? Mens Rea for ABH, Battery and Assault are the same?
AO1 - S47 OAPA, S39 CJA, Roberts - The ABH is caused by Assault or Battery.
AO3 - They carry the same mens rea, they do not require the defendant to intend or even realise there is a risk of harm. Despite this the maximum sentences are different for ABH it’s 5 years and Battery 6 months.
Inconsistency between Offences? Wounding?
AO1 - S20 OAPA and S47 OAPA.
AO3 - A person who cuts another can be charged with a serious offence of S20 instead of S47 as S20 refers to a wound or GBH. Yet many types of wounds, especially cuts do not amount to and equal ABH. The Maximum sentence for the both is the same even though GBH is far more serious.
Inconsistency between Offences? Arrest?
AO1 - Morrison.
AO3 - The arrest element is confusing, someone can be convicted of GBH even if they meant to carry ABH, shows how serious parliament finds using force on police officer. Public policy decision providing protection to society so they can carry out their jobs more effectively. The Law Commission 2015 recommends that a new act with a clear hierarchy of offences and are classified by the harm caused and the culpability of the D.
Need For Modern and Simple Language?
AO1 - R v Eisenhower and R v Taylor.
AO3 - The acts need to be updated so that the language should be simplified. S20 uses the word maliciously (Eisenhower), the definition of the word means deliberately and with ill will towards the victim, however, in 1861 it meant recklessly. In S18 the word cause is used in R v Taylor. The words actual bodily harm and grievous bodily harm are not common within the English Language.
Sentencing problems?
Assault and Battery - These re summary offences that are punishable with a fine 6 months. An advantage of this is that it can therefore, be dealt with in the Magistrates Court in turn avoiding the expenses of the magistrates. This saves the courts time and money due to the fact that a majority of non fatal offences are assault and battery.
However, ABH and S20 GBH both carry the same sentence guidelines of 5 years. It seems unnecessary to have two offences that have the same penalty even though GBH is supposed to be much more serious than ABH.
Correspondence Principle?
2015 report states that the act does not conform with the correspondence principle which means that the intention of the D does not match his act. D should only be held liable for the harm they intend to cause. In S20 a person could be guilty of serious harm without intending it.
2015 Law Commission Reform?
They recommend updating the act, they though there would be another low level offence which would be aggravated assault. This would help victims who feel aggrieved when they have been assaulted but the D is only charged with common assault. It recommends a maximum prison sentence of 12 months which is a 6 month increase from the common law one. The recommendations in the report would create more coherent set of offences, no overlap or inconsistency.
