Non-Fatal Offences EVALUATION Flashcards
Explanation
Assault is the first NFO and comes from common law. The actus reus (AR) is causing the victim (V) to apprehend immediate unlawful force. D can commit assault through actions (Read v Coker) or words (Constanza/Ireland) as long as V expects force in the near future (Smith v CCoW). The mens rea (MR) is intention or recklessness to cause V to apprehend immediate unlawful force. Battery is also from common law, and is when D applies unlawful force, meaning it is hostile and goes beyond the ordinary jostlings of everyday life (Wilson v Pringle). D must have intention or recklessness to apply unlawful force here.
Assault occasioning actual bodily harm comes from S47 of the OAPA and in the AR, D must commit an assault or battery that results in ABH (which Chan-Fook defines as harm not so trivial as to be wholly insignificant). Importantly, the MR of S47 is just having the mens rea of assault or battery, not for harm (R v Savage). Wounding comes from both S18 and S20. The AR of both sections is to unlawfully wound, meaning a cut or break in 2 layers of skin (Eisenhower). The MR determines which section will be used. S20 is where D intends or is reckless as to causing some harm (Mowatt), whereas S18 is where D intended serious harm (Belfon). Grievous bodily harm (GBH) also comes from S18 and S20. The AR of both sections is to cause GBH, meaning really serious harm (DPP v Smith). The MR of GBH is the same as wounding, due to it coming from the same sections.
Assault can be confusing
The crime of assault can be criticised because lay people constantly confuse it with crimes that require injury or contact (i.e. battery or S47). This makes the law difficult to understand, and can lead to problems with accurate crime reporting if the public can’t identify these common crimes. The LC have suggested changing the names of assault and battery to ‘threatened assault’ and ‘physical assault’ respectively. This is much clearer in identifying whether contact has been made and should clarify the law for lay people. However, they also want to have a crime of ‘aggravated assault’ which involves causing an injury, so the word assault may still confuse people by being used in 3 crimes with different outcomes.
S47 goes against the principle of correspondence
The idea that AR and MR should be equal when deciding guilt. In S47, the AR is more important because D must cause an injury but does not need any MR for it. This can be unfair because the level of harm caused may be down to luck, whereas D has more control over the level of harm intended, meaning D’s blameworthiness may not be reflected. The LC wants to replace S47 with 2 crimes: aggravated assault, and causing injury. Causing injury corresponds because D must cause injury in the AR and have the MR for injury too. Aggravated assault still does not correspond because the AR requires an injury but the MR is only for threatened or physical assault, but the sentence has been reduced from 5 years down to 12 months to mitigate any injustice caused by this.
Sentencing of S20 and S18
The sentencing difference between S20 and S18 can also be questioned. S20 carries a 5 year maximum compared to S18’s discretionary life. This is a very large jump considering the actus reus is identical, and S18’s sentence could be seen as too high because it is on the same level as murder despite nobody dying and D not having the mens rea to kill. The LC suggests increasing S20’s sentence to 7 years but keeping S18 with a life sentence. The life sentence can be justified on the grounds that implied malice in murder is the same as S18’s mens rea, and this acts as a strong deterrent.
Wounding has little value in law
The current crime in wounding has little value in law. Firstly, it sits alongside GBH in S18 and S20, suggesting that a break in 2 layers of skin is as serious as GBH - which is false considering even pin-pricks can break 2 layers of skin. Additionally, wounding is a type of injury rather than a level of injury (i.e. we don’t have the crimes of ‘breaking bones’ or ‘bruising’; we just have GBH and ABH), so it makes the law more complicated than it needs to be. The LC recognised this and would simply include wounding as an ‘injury’ or ‘serious injury’ depending on how bad the cut is.
The word ‘bodily’
Another problem with these offences is the inclusion of the word ‘bodily’ in ABH and GBH. Psychiatric harm affects the mind more than the body, yet can be ABH and GBH. Cutting hair is arguably not harming the body, but can still be ABH. The language of the OAPA can therefore lead to confusion and uncertainty, which is why the LC wants to simply use the word ‘injury’ instead. This is a more common word, which can cover a broader range of things than bodily harm. However, the word ‘injury’ is not very simple to define either and so may still lead to confusion over what counts.
