Non fatal offences EVALUATION A03 Flashcards
what is the A03 about
about reforming the law for non fatal offences (OAPA)
what is the home office bill (1998)
government published its own proposals for reform, but these were never acted upon
what is the eleventh programme 2011
law commission reviewed this area of law again and made new proposals in the eleventh programme and they identified the following problems with the current law
what are the 5 evaluation points
1) out of date
2) complex, out of date language
3) the statute has been heavily interpreted by judges
4) illogical sentences
5) assault and battery are outside the OAPA 1861
write me the point for out of date
- OAPA outlived its usefulness, massively out of date
- because the act was created in 1861
- legislation is over 160 years old
write me the developed point for out of date
- created in victorian times to match victorian issues
- outdated issues and doesn’t fit with modern society
- does cover a lot of modern issues, such as protecting the D and V.
- For example, the act doesn’t cover psychological injuries. were not considered in victorian times or medicine. Means the act itself does not protect Vs who suffer psychological injuries
- However, this issue has been resolved by judges who have made rules within cases to protect these victims.
Chan Fook- allows psychiatric injuries to be classes as ABH
Burstow- allows the same to be classed as GBH - this judicial made law now protects the V of the crimes
write me the well developed point for out of date
- in addition the act doesn’t cover the transmission of sexual diseases. This has been identified as a modern problem and the V are not protected under the OAPA 1861
- however judges have extended the law within Dica and Golding to find D’s guilty of GBH if they transit a sexual disease
write me the point for complex, out of date language
- due to act being 160 years old, a lot of language is out of date
- led to confusion when interpreting the offences in modern times
write me the developed point for complex, out of date language
- For example, under S20 the word ‘maliciously’ is used in modern language as meaning acting deliberately with ill-will towards the V.
- however the meaning of ‘maliciously’ in 1861 means the D intended or was reckless as to whether harm occurred to the V.
- due to this, the law commission has suggested that the word ‘reckless’, should replace the word ‘malicious’ to avoid further confusion.
write me the well developed point for complex, out of date language
- further issues with the language in the act between S18 and S20 offences
- word ‘grievous’ is also out of date in modern times and had to be interpreted by judges in DPP V Smith as meaning ‘really serious harm’
- also in S.20 the word ‘inflict’ is used for the GBH whereas, in S18 the word ‘cause’ is used for the GBH. This has led to problems when interpreting S20 and S18 offences and how they can be committed.
However, this has now been resolved in Burstow where it was decided they mean the same thing
write me the point for the statute has been heavily interpreted by judges
- while the non fatal offences predominantly come from the 1861 act, the law in this area has also been heavily adapted and changed through statutory interpretation and judicial precedent in the common law
- this has been necessary to close the gaps in the law, yet arguably judges have acted against their constitutional role by doing so.
write me the developed point for the statute has been heavily interpreted by judges
- for example, in Chan Fook the courts decided that psychiatric injury can be classed as ABH
- similarly in Burstow, judges decided that serious psychiatric injury can amount to GBH
- judicial interpretation of the OAPA 1861 was necessary here to modernise the law for a modern era and has arguably improved the law to meet the needs of a modern society and to match modern medical understanding.
- the law now protects the V’s who suffer from psychological as a result of the D’s actions.
- Ambiguity benefits the defence
write me the well developed point for the statute had been heavily interpreted by judges
- however, arguably by doing so, judges are eroding the theory of the seperation of powers, which states that only the legislature should make laws and that the judiciary should merely apply them in court
- the judiciary cannot be confident that the laws they are creating
