reform of non fatal offences

Question 1

Criticism 1

Answer 1

LANGUAGE - OAPA 1861 lacks definition of key words. definitons had to be developed through case law MALICIOUS with cunningham as original word is ill will or hatred whereas law defines it as intention or recklessness which is clearly an extension of its original meaning. used in s20 and 18. In s20 its used to define mens rea but in s18 its mens rea is already defined as with intent so its pointless.

GRIEVOUS with DPP v smith. defines grievous as really serious harm. Out of date language colloquialism is needed as when defining so general public have knowledge on law.

Question 2

Suggested reform 1

Answer 2

law comissions 2015 report realtered the language to suit modern society. The word grievous is replaced with ‘very serious’ in clause 1 and 2. Also malicious has been replaced with intention or recklessness

Question 3

Criticism 2

Answer 3

INCONSISTENCY- offences under the s39 of CJA 1998 s47, s20 and s18 of the OAPA are not designed as a logical heirarchy. MENS REA of s47 has same mens rea of lesser offfences of s39 (ROBERTS). Unjust as as doesnt require D to realise risk of injury. Furthermore the punishment for said offences vary greatly. s39 has a maximum of 6 months in prison but s47 has a maximum of 5 years.

Question 4

Suggested reform 2

Answer 4

proposed a bill that would encompass all NFO’s and have a logical sentencing structure in terms of seriousness set out in 4 clauses. proposed reform includes raising the maximum sentence of clause 2 (s20) to 7 years rather than 5 years in order to distinguish the offence from s47. Also s20 would require intention/recklessness as to serious harm not just some harm. This means cases like PARMENTER who didn’t intentionally hurt anyone wouldnt be made guilty of the more serious NFO’s.

Question 5

Criticism 3

Answer 5

OUTDATED - OAPA is 150 years old. doesnt reflect the social issues and concerns revelant today. Case law had to pave the way for medical and psychiatric injuries. The phrase ‘bodily harm’ left no room for possibility of psychiatric illness as the victorian legislator wouldnt have it in mind when making the law all those years ago. DICA held it was allowed as knowledge on STDs have changed understanding on the matter. BURSTOW held psychiatric illness, if grave enough, can amount to s20.

Question 6

Suggested reform 3

Answer 6

‘injury’ was defined as having a physical injury i.e. pain, unconsciousness and any impairment of physical condition. Also mental injury was added including any imparement to a persons mental health. However the reform only suggested intentional serious injury could be committed through transmitting a disease and didnt make it clear what disease this includes. This shows th suggested reform itself has criticisms and lacks clarity.