Non Fatal Offences Reform Essay
The OAPA is Victorian legislation which contains a diverse set of offences and was never intended to be a consistent set of rules. As a result, there is no uniformity of language between the sections, and key words and phrases are not defined in the Act.
The Act uses complicated and obscure language such as 'maliciously' and 'grievous' which is difficult for non-lawyers to understand. There is no statutory definition of assault or battery. The terminology is also not the same throughout the Act ~ what difference is there between 'causing', 'inflicting', or 'occasioning' harm?
The Act contains offences which are no longer necessary in the 21st century, such as S17 "impeding a person endeavouring to save himself from a shipwreck", and S39 "assaults with intent to obstruct the sale of grain".
The law is outdated as the Act focuses on 'bodily harm' but does not mention psychological injury. Lord Steyn in R v Ireland commented that "the Victorian legislator (...) would not have in mind psychiatric illness", but mental illnesses are now better known and the law needs to reflect this.
The courts need to be creative in relation to stalking (R v Cox) and biological GBH (R v Dica).
Non-fatal offences against the person - Criticisms
- The Law Commission in Legislating the Criminal Code: Offences Against the Person and General Principles criticised NFOAPs on three main issues: firstly the language used is complicated, obscure and out dated, secondly the structure of the offences and thirdly the Law Commission was critical of the effectiveness of the current law on NFOAPs. The Law Commission proposed to repeal Ss 18, 20 & 47 and replace them with new provisions.
- The Language used in the OAPA 1861 is no doubt out dated. For example the words ‘grievous’ and ‘malicious’ are not generally used in modern times and have required interpretation by the courts.
- Grievous has been interpreted as meaning really serious (DPP v Smith), however, malicious has been given an interpretation quite unrelated to what one might expect. In general parlance the word malicious is perhaps related to evil or hatred whereas in legal terms malicious means intention or reckless.
- There exist further problems with misleading language used. For example, in every day usage, the word ‘assault’ generally conjures up an image of physical attack whereas in legal terms no physical contact is required.
- The term ‘battery’ in general usage suggests a higher level of force than is actually required by law. The use of the word bodily harm under s.18, 20 and 47 includes psychiatric harm according to R vIreland, R v Burstow & R v Constanzayet it is highly unlikely the Victorian Draftsmen would have had this type of harm in mind.
- Use of the word ‘inflict’ has caused the courts considerable problems. It was first interpreted as requiring proof of an assault or battery (R v Clarence). InR vWilsonit was stated all that was required was the direct application of force, however, in R vMartin the defendant was liable where the force was indirectly applied. The current meaning was established in R v Burstow as simply meaning cause.
- The structure of the offences can also be criticised. There is no statutory definition of assault or battery and there are no clear boundaries between the offences.
- Any intentional touching of another without consent will amount to a battery (Faulkner v Talbot) whereas any hurt or injury calculated to interfere with the comfort of the victim amounts to ABH (R vMiller). There seems little difference between the two other than interference with comfort, yet battery carries a maximum penalty of 6 months whereas for ABH it is 5 years.
- Similarly there is no clear boundary between ABH and GBH it is for the jury to decide what amounts to really serious harm and different juries will differ in their opinions.
- ABH and GBH can have very different levels of severity of injury and yet an offence of GBH under s.20 carries the same max penalty as an offence of ABH under s.47. Yet for GBH the punishment jumps from 5 years to life for an offence under s.18 which could involve the same injury as an offence under s.20.
- It is illogical to have a separate offence of wounding which is considered alongside GBH. A breaking of the 7 layers of the skin constitutes a wound (Moriarty v Brookes). Thus a pin prick could suffice which is clearly far removed from really serious harm.
- A further criticism is the effectiveness of the offences. Many NFOAPs will go unpunished. Many will not be reported and many that are reported may not be prosecuted. This has been a particular problem in the past with regards to domestic violence. Prosecutors will generally charge under the lesser offence in order to secure a conviction and plea bargaining is often used.
- Also there is a practice in some areas of not prosecuting assault and battery as the costs involved outweigh the benefits
Lecture outlines on the individual offences can be found here:
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Non-fatal offences against the person