Evaluation Of Non Fatal Defence Flashcards
(5 cards)
Introduction
Non-fatal offences under the Offences Against the Person Act 1861 (OAPA 1861) have faced heavy criticism for being outdated, inconsistent, and unclear. Reform is widely agreed upon, as the law lacks in many areas leading to confusion in its application.
Conclusion
Reform of OAPA 1861 is essential due to its outdated and inconsistent nature. Although proposals have been made, they haven’t been adopted, leaving the law unsatisfactory. Clear and fair reform is needed to improve the legal framework for non-fatal offences.
Point:
Much of the law on NFO is outdated as it originates from the OAPA 1861.
Development:
This Act was created in the Victorian era and is no longer fit for modern society. Much of the language is outdated, meaning the average/reasonable person is unlikely to understand it.
Impact:
This undermines the rule of law, as people need to be able to understand the law in order to follow it.
Example:
For example, S.20 of the OAPA states grievous bodily harm and malicious wounding are criminal offences. The word “grievous” is vague and old-fashioned, and had to be clarified in case law. In R v Saunders and DPP v Smith, GBH was defined as “really serious/serious harm”. This provided a clearer, modern interpretation. This definition now includes more types of harm such as biological harm, as seen in R v Dica, where D infected V with HIV. This shows the courts adapting the law to new societal issues, offering greater protection for the public.
However:
Expanding the meaning of GBH may lower the perceived seriousness of the offence, as it includes a wider range of harm, potentially blurring the boundaries between offences.
Reform:
It may be an idea for reform to create a new offence to split GBH into different types of harm, in line with the Law Commission’s recommendations in the Draft Criminal Code.
Point:
The definition of assault and battery are unclear and inconsistent.
Development:
The term “common assault” is used inconsistently across legislation, and neither assault nor battery is defined in statute, relying instead on common law. This creates a lack of transparency in the law.
Impact:
This can cause confusion, especially since actions like silent phone calls and minor touching can amount to criminal offences, which may not be obvious to the public. It also leads to inconsistent charging decisions and appeals on technicalities, delaying justice and undermining confidence in the legal process.
Example:
Section 39 of the Criminal Justice Act 1988 refers to “common assault and battery” but offers no definitions, and Section 40 only mentions “common assault”, which adds to the inconsistency. However, courts have developed legal principles—for example, in Ireland, silent phone calls were held to be assault, and in Thomas, touching clothing was battery. These case law developments help provide some predictability.
However:
Despite the courts stepping in, relying on case law rather than clear statute is problematic and may still confuse the public.
Reform:
This area of the law would benefit from reform to modernise and clearly define assault and battery in statute, as recommended by the Law Commission, making the law more accessible and consistent.
Point:
There’s a lack of consistency in how non-fatal offences are structured and categorised.
Development:
The OAPA 1861 and Section 39 of the Criminal Justice Act 1988 were not designed as a logical hierarchy of offences. Offences with similar harm and fault can carry very different maximum sentences, which undermines the fairness of the legal system.
Impact:
This causes confusion and inconsistency in charging and sentencing, which can result in unjust outcomes. For example, S.20 GBH carries a 5-year sentence, while S.18 GBH, which may involve similar harm but with intent, carries a life sentence. This undermines the principle of proportionality.
Example:
Two defendants may cause the same level of injury, but if one is charged under S.18 and the other under S.20, they face vastly different sentencing outcomes—this is not only unfair, but risks bringing the justice system into disrepute.
However:
Judges can use discretion to give fairer sentences, even if the structure is flawed. This judicial flexibility may reduce some unfairness.
Reform:
Nevertheless, reform is necessary to create a clearer, more proportionate offence hierarchy, as proposed by the Law Commission, to ensure consistency and fairness in both charging and sentencing.
