Evaulation Of NFO Flashcards
(12 cards)
What is problem with language in s.39
- not clear they are different offences, references to ‘common assault’ make it confusing for LAY PEOPLE.
Socially people may be treated as if they commited a worse crime than they had. E.g. jobs. This is UNFAIR LABELLING
E.g. Collins v Willcock decided “any touching, however slight” may be battery.
Counter argument to language in a.39
Allows protection of public to not be threatened and have unlawful force applied on them.
Due to social disdain for those guilty of assault or battery, it acts as a deterrence, giving victims tangible rights to be free from minor, yet criminal offences. So more FAIR for victims and GOOD POLICY
What is problem with having no statutory definitions?
As neither assault nor battery is defined in the Criminal Justice Act 1988, this gives judges the power to define such terms. Points of law that are immensely important for LAY PEOPLE to understand whether someone has acted criminally towards them, and that allows them to regulate their own behaviour to stay out of criminality may be INACCESSIBLE.
E.g. Ireland (1999) silent phone calls may not be known as an assault
Counter arguement for lack of statutory definition.
Judges can deal with points of law as they come, and it’s incredibly difficult for parliament to a) foresee any possible application of assault/battery in an evolving society or b) create an umbrella definition which gives judges clear indication on what decision to make.
This means defining it may actually end up pointless, and possibly lead to UNFAIR decisions in unforseeabke circumstances e.g. would Santana-Bermudez failure to tell police officer of needle in pocket be battery?
Reforms of s.39 CJA 1998 assault/battery
2015 LAW COMMISSION REPORT:
2 new offences
- physical assault
- threatened assault
GOOD: - as it clears up misconceptions by the public, it removes unfair labelling of those convicted, ensuring society understands the nature of the D’s crimes, and treats them according to such
What are problems with language in s.47 OAPA1861
- inconsistency with s.39CJA1988 as assault and battery are previously considered seperate offences, but this combines 2 offences and names only one (assault) reaffirming the misconception that they are the same. So CONFUSES LAY PEOPLE
- the term ABH is misleading, as if Miller (1954) it is any ‘Hurt or injury calculated to interfere with health or comfort” if “more than trivial”. ‘BODILY’ may be inferred as physical harm but as of Ireland (1999) it includes psychiatric injury so UNCLEAR TO LAY PEOPLE.
What are positives of language in s.47
Leaving the definition of ABH to development in common law allows landmark cases like Ireland to evolve with modern times, at some point, a definition will become outdated and cause issues.
What is problems with AR and MR of s.47
- MR does not correspond with AR.
MR is intentionally/recklessly causing v to apprehend immediate unlawful force/applyijg unlawful force.
This does not factor the fact that the AR includes a causation of ABH.
The D must not for see the risk of injury, only the assault or battery. E.g. Savage (1991) D threw beer at V, glass slipped. - unfair for D as goes against principle that people should only be guilty for offences that they forsaw, could have same intention/forsee exact same thing but as an injury was caused it jumps from 6months to 5 years.
What is a positive of no corresponding AR and MR?
Fair for V as CONSTRUCTIVE INTENT forces people to take responsibility for already criminal actions. This achieves justice as D should not intent/recklessly a/b anyway, they should be liable for injury.
Also DETERS people from A/B
What are reforms of s.47?
2015 LAW COMMISSION REPORT:
2 new offences:
- Intentionally/recklessly causing injury (D must forsee risk of injury) - 5 year max
- aggravated assault (no need to forsee) - 12 months max
Injury defined to include psychiatric injures lies
GOOD: more fair for D as MR+AR correspond for first offence and sentence reduced on where they did not forsee.
Modsrnises language by removing ‘occasioning’ and using injury rather than ABH.
How is language in “maliciously wounding or inflicting GBH (s.20OAPA1868)’ outdated
- GBH old fashioned and relies on common law definition of serious harm (DPP v Smith 1961). This needs constant updating by judges such as Burstow (1997) to include psychiatric harm. Creates UNCERTAINTY.
- wounds (Eisenhower 1983) May be minor injuries, although CPS manages it, and instead prosecutes for ABH, still shows outdated nature of law.
- maliciously infers evil intent to LAY PERSON but actually means in common law as being to reckless to some harm, creates confusion.
- inflicting same as cause
Does AR and MR correspond?
No.
AR: wounding/inflicting GBH
MR: intentionally/recklessly
