Non fatal offences evaluation essay Flashcards
where can the law on non fatal offences be traced back to?
When is the hierarchy followed? Is this good? is reform necessary?
traced back to the Offences Against the Person Act 1861 [OAPA], where there is a hierarchy of offences ranging from the least severe non-fatal offences to the more severe offences.
not only followed in terms of severity but also in terms of punishment. While this may seem reasonable, the law on non-fatal offences has come across as being unclear, inconsistent and extremely confusing.
Reform may be necessary to ensure that the law on non-fatal offences adequately protects the public.
What’s at the bottom of the hierarchy? Where is it categorised - why is this confusing?
What’s the actus reus - what does it include (cases)?
assault and battery, which are considered to be somewhat at the same level.
ssault is categorised under section 39 of the Criminal Justice Act 1988, which already suggests the need to be addressed, as it is separate from OAPA 1861, which could cause confusion.
actus reus of assault requires there to be a fear of immediate application of unlawful force, so touching is not needed to fulfil the actus reus of this offence, so the actus reus can involve words being stated (as per R v Constanza) and silent phone calls (as seen in R v Ireland).
What can the word immediate refer to - case?
what was also included? was this good?
What could be misleading?
Mens rea?
what happened if found guilty?
immediate” can also refer to being “imminent”, which was seen in the case of Smith where the victim experienced fear through someone standing at their window.
Psychiatric illness was also included, as per R v Ireland. This could be viewed as somewhat good as it prevents people from getting away with making people fear unlawful force, thus making them more cautious of the law.
assault” could be seen as misleading given that the term gives the impression that force is literally applied, when that is not the case.
mens rea of assault requires for intent or recklessness to be present while committing the offence, so whether they had the intent to commit assault or there was reasonable foresight that while carrying out an act, there would be a risk of harm, but recklessness is subjective in terms of the courts.
guilty of assault, they would be present at the Magistrates Court where they would typically have to pay a £5,000 fine or serve a six-month prison sentence, which some may view to be reasonable in some conditions.
What may be considered at first glance of assault ? what case argues against this?
what could be asserted?
What should be noted ?
consider the law on assault to be an example on non-fatal offences being outdated, but the inclusion of psychiatric illness in the case of R v Ireland suggests otherwise.
asserted that the law on non-fatal offences adequately protects the public and ensures people do not get away with “simply” scaring people into believing they will be assaulted.
word “assault” can be misleading and so the public could believe that a physical attack is required to be charged with the offence.
What’s next in the hierarchy after assault?
How do you commit it - cases?
What can it also be - case?
Where is this law found - criticism?
battery, which is placed at the same level as assault.
defendant must have applied unlawful force, which can consist of “slight” touching as per Collins v Wilcock, which can apply to clothing (R v Thomas, where the defendant touched a woman’s skirt).
battery can be an indirect act as seen in Haystead (where the defendant assaulted a parent holding a baby, causing the baby to fall).
falls under s.39 of the Criminal Justice Act 1988, continuing to suggest that there is an inconsistency present in non-fatal offences.
What does the term battery indicate?
What’s the mens rea?
Why is this an issue?
indicate that a decent level of force is required to commit this offence, which seems to be misleading to the public.
mens rea needed to commit battery is intent or recklessness, which means the defendant must realise that there is a risk that committing the act or omission could cause unlawful force to be applied, which can be viewed as somewhat subjective, so it is up to the courts to decide if the mens rea has been fulfilled.
may be an issue as there could be an inconsistency in cases, where one person may be charged with battery while another isn’t, even if they are in similar situations.
what could be suggested on the law of battery?
Criticism of the actus reus?
What does it require? What does the law on battery support?
law on battery is somewhat clear, it could lead to inconsistencies.
given the criteria needed to fulfil the actus reus of battery, there could be absurd cases that come through where there has been minimal hurt or injury and so the courts could be backlogged with cases that aren’t important.
requires clarity to ensure there is minimal inconsistency in cases. The law on battery offences seem to support the argument that the law on non-fatal offences should be reformed to ensure that the public is adequately protected.
Where can asset occasioning actual bodily harm be found - definition?
what can it consist of - cases?
s.47 of OAPA 1861, where the actus reus needed to commit the offence is assault or battery that causes actual bodily harm [ABH], which can be defined through “any hurt or injury calculated to interfere with comfort”, established in R v Miller.
consist of the victim losing consciousness (as seen in T v DPP), cutting hair if it’s significant, as seen in DPP v Smith, or psychiatric injury like in R v Ireland or R v Chan Fook.
