ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

IS THE LAW ON NON-FATAL OFFENCES IN NEED OF REFORM?

Updated on December 5, 2009

Is the law on non-fatal offences in need of reform?

Asssault, Battery, Actual Bodily Harm, Grievous Bodily harm sections 18, 20 and 47 are all non-fatal offences against the person under the Offences Against the Persons Act 1861.

It must be said that just because an act is old this does not mean that is actually dated, but in this case it may have been that the act was out of place even when it was written 150 years ago.

The Offences Against the Persons Act 1861 defines the non-fatal offences it covers. The act contains many old fashioned terms and the words do not equate with the modern dictionary definitions. Some are downright misleading; for example malicious, grievous and occasioning.

One of the major problems with the Act is that it does not allow for the broad range of circumstances which give rise to criminal liability where an offence is non-fatal in nature. This has led to some fairly absurd judgements. A case in point is R v Burstow, a case which recognised that really serious psychiatric injury can amount to Grievous Bodily Harm. The judgment in this case was designed to give justice to the victim but it did not really fit well with the law under the 1861 act. As a result of the decisions is R v Burstow and R v Ireland, the legislature scripted the Protection from Harassment Act 1997 which properly provides for such circumstances.

A similar Act was passed to deal with racially and religiously aggravated assaults in this instance The Crime and Disorder Act 1998. Again this was because the 1861 Act did not adequately allow for these particular cases.

The above shows that a number of items of legislation have had to be passed to compensate for the deficiencies in legislation under the 1861 Act; which means that rather than having one piece of legislation that deals with the non-fatal offences, there are a number of pieces being produced which can create uncertainty because there may be overlaps between the offences.

The case of R v Dica is an important case for consideration because many would think of assault as being the application of force on someone or impact on another. It would make sense that a defendant who deliberately stabs someone with a syringe containing HIV infected blood to be dealt with under the law of assault but it does not seem right that someone who has consensual and unprotected sex should be able to claim the protection of assault law. Much confusion and debate has arisen from this case and cases which have followed. Consent is not a recognised defence to assault.In DPP v Smitha man was convicted of assault occasioning actual bodily harm for cutting his partners hair. The High Court said that assault was broad and extended to damage to hair. Essentially the judge was making law and it is well established as a constitutional foundation that judges do not make law as that is the job of the legislature. The defects in the law are forcing judges into territory which they should not enter.

Another problem with the Act is that the exact requirement in relation to mens rea for assault varies with each type of assault. Maliciously, recklessly, intentionally and this should be treated with some causation as it could give rise to injustice. Conversely the means rea between different offences which are some less serious that others are also the same, for example ABH has the same mens rea as assault or battery.

A further issue arising from the Non-Fatal Offences Act is that it fails to deal with the fine line which may exist between the different categories of offence and although there are Crown Prosecution Service charging standards these are merely a guideline to what constitutes as an offence.

Problems also arise with the sentences and so although section 20 is a considerably more serious offence than section 47 they carry the same maximum sentence of 5 years this makes little sense and it would be fair to say that the sentences should be adjusted to reflect the relative seriousness of the offences.

In some instances the mens rea and actus reus of the offences do not match. So in the case of assault occasioning ABH a person who foresees slight harm can be convicted of inflicting grievous bodily harm and a person who does not foresee and harm but foresees fear of harm can be convicted of section 47.

The law commission has been troubled by the problems of the 1861 Act particularly because each year 80,000 cases come before the court under the Act. In 1993 the Law Commission proposed a new law to take its place, but the Government did nothing about this until 1998 when the Home Office issued a Consultation Document ‘Violence: reforming the offences against the person’. This included a draft bill which set out four main offences. These were intended to replace s18, s20, s47 and assault and battery. In order starting with the most serious they are:

  1. Intentional serious injury where person would be guilty if he intentionally caused serious injury to another.
  2. Reckless serious injury where a person would be guilty if he recklessly caused serious injury to another.
  3. intentional or reckless injury where a person would be guilty if he intentionally or recklessly caused an injury to another,
  4. Assault a person would be guilty if he intentionally or recklessly.

Mr Justice Brook said that it was intolerable that such an important act had not been properly considered or reformed. Sadly so far nothing has been done.

In view of the arguments raised here and of the academic and legal commentators there is no doubt that the law is in need of reform and it is absurd that the government has not given it the priority which it deserves.

One would hope that this will be a matter that will be dealt with without further and unnecessary delay because the lack of clear decisions, clarity and usefulness will undoubtedly lead to injustice.

Comments

    0 of 8192 characters used
    Post Comment

    • profile image

      bob 

      6 years ago

      coool

    • profile image

      Master54 

      8 years ago

      Jan u r really talented. Will mail you privately - may be able to put some work your way.

    working

    This website uses cookies

    As a user in the EEA, your approval is needed on a few things. To provide a better website experience, hubpages.com uses cookies (and other similar technologies) and may collect, process, and share personal data. Please choose which areas of our service you consent to our doing so.

    For more information on managing or withdrawing consents and how we handle data, visit our Privacy Policy at: https://hubpages.com/privacy-policy#gdpr

    Show Details
    Necessary
    HubPages Device IDThis is used to identify particular browsers or devices when the access the service, and is used for security reasons.
    LoginThis is necessary to sign in to the HubPages Service.
    Google RecaptchaThis is used to prevent bots and spam. (Privacy Policy)
    AkismetThis is used to detect comment spam. (Privacy Policy)
    HubPages Google AnalyticsThis is used to provide data on traffic to our website, all personally identifyable data is anonymized. (Privacy Policy)
    HubPages Traffic PixelThis is used to collect data on traffic to articles and other pages on our site. Unless you are signed in to a HubPages account, all personally identifiable information is anonymized.
    Amazon Web ServicesThis is a cloud services platform that we used to host our service. (Privacy Policy)
    CloudflareThis is a cloud CDN service that we use to efficiently deliver files required for our service to operate such as javascript, cascading style sheets, images, and videos. (Privacy Policy)
    Google Hosted LibrariesJavascript software libraries such as jQuery are loaded at endpoints on the googleapis.com or gstatic.com domains, for performance and efficiency reasons. (Privacy Policy)
    Features
    Google Custom SearchThis is feature allows you to search the site. (Privacy Policy)
    Google MapsSome articles have Google Maps embedded in them. (Privacy Policy)
    Google ChartsThis is used to display charts and graphs on articles and the author center. (Privacy Policy)
    Google AdSense Host APIThis service allows you to sign up for or associate a Google AdSense account with HubPages, so that you can earn money from ads on your articles. No data is shared unless you engage with this feature. (Privacy Policy)
    Google YouTubeSome articles have YouTube videos embedded in them. (Privacy Policy)
    VimeoSome articles have Vimeo videos embedded in them. (Privacy Policy)
    PaypalThis is used for a registered author who enrolls in the HubPages Earnings program and requests to be paid via PayPal. No data is shared with Paypal unless you engage with this feature. (Privacy Policy)
    Facebook LoginYou can use this to streamline signing up for, or signing in to your Hubpages account. No data is shared with Facebook unless you engage with this feature. (Privacy Policy)
    MavenThis supports the Maven widget and search functionality. (Privacy Policy)
    Marketing
    Google AdSenseThis is an ad network. (Privacy Policy)
    Google DoubleClickGoogle provides ad serving technology and runs an ad network. (Privacy Policy)
    Index ExchangeThis is an ad network. (Privacy Policy)
    SovrnThis is an ad network. (Privacy Policy)
    Facebook AdsThis is an ad network. (Privacy Policy)
    Amazon Unified Ad MarketplaceThis is an ad network. (Privacy Policy)
    AppNexusThis is an ad network. (Privacy Policy)
    OpenxThis is an ad network. (Privacy Policy)
    Rubicon ProjectThis is an ad network. (Privacy Policy)
    TripleLiftThis is an ad network. (Privacy Policy)
    Say MediaWe partner with Say Media to deliver ad campaigns on our sites. (Privacy Policy)
    Remarketing PixelsWe may use remarketing pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to advertise the HubPages Service to people that have visited our sites.
    Conversion Tracking PixelsWe may use conversion tracking pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to identify when an advertisement has successfully resulted in the desired action, such as signing up for the HubPages Service or publishing an article on the HubPages Service.
    Statistics
    Author Google AnalyticsThis is used to provide traffic data and reports to the authors of articles on the HubPages Service. (Privacy Policy)
    ComscoreComScore is a media measurement and analytics company providing marketing data and analytics to enterprises, media and advertising agencies, and publishers. Non-consent will result in ComScore only processing obfuscated personal data. (Privacy Policy)
    Amazon Tracking PixelSome articles display amazon products as part of the Amazon Affiliate program, this pixel provides traffic statistics for those products (Privacy Policy)