IS THE LAW ON NON-FATAL OFFENCES IN NEED OF REFORM?
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:
- Intentional serious injury where person would be guilty if he intentionally caused serious injury to another.
- Reckless serious injury where a person would be guilty if he recklessly caused serious injury to another.
- intentional or reckless injury where a person would be guilty if he intentionally or recklessly caused an injury to another,
- 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.