Law: Criticising the non-fatals

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  • Criticisms of the non-Fatals
    • Introduction
      • It was created in 1861 and brought all legislation into one act
      • Most offences have been removed or updated but the non-fatals are within an act more than 150 years old.
      • A law commission report in 1993 described the law on the non-fatals as ''inefficient'' and said that ''many aspects of the law are still obscure''
    • Language
      • The 'grievous' in GBH is outdated and not really understandable to the public, nor the jury
        • The cause of Smith describes it as really serious harm, while the case of Saunders describes it as serious harm. Leaving a clear difference between the two.
          • The judge describes the term differently each time to the jury, which means that outcomes of cases could be different.
      • The word 'malicious' is not clearly understandable
        • It is a mens rea word and so you would expect it to be used in s.18, but it's used in the lower offence of s.20. It would make more sense for it to be used when pure intention applies.
      • Assault means, in common assault, to apprehend immediate unlawful violence. But people's perception is that it means physical violence, like a common battery
        • It is also used for psychiatric harm, when the D hasn't even touched the V. This leads to further confusion over what it actually means.
    • Lack of Logical sentencing structure
      • HLA Hart said it ''might bring the law into dispute''
      • There is an overlap between offences and the sentences which are given
      • s.47 is similar to other offences in terms of the mens rea. The cases of Savage and Parmenter confirm that the mens rea is intention or recklessness to commit that offence.
        • Common assault and common battery have the same mens rea as for ABH, but in ABH there's a 5 year conviction and CA/CB has a 6 month conviction
          • s.47 and s.20 both have a 5 year conviction, but GBH is a more serious offence. This is unfair for the victim who would want to see the defendant being punished for the harm done and the intentions behind the harm.
            • There's a big leap between s.20 and s.18 because s.18 carries a life sentence.
              • This leads to the question of whether we want to see the D punished for the harm caused or the intention?
    • Outdated
      • Since 1861 methods of communication have changed
        • When common assault was made it was presumed to be a face to face confrontation
          • Since then, phones, laptops etc... have been developed so there are now different ways which common assault can be committed.
            • This means that common assault is no longer fit for purpose as it was only designed for face to face confrontations
      • In 1861, psychiatric harm didn't exist, yet its included in ABH and GBH.
        • In ABH is very hard to prove that psychiatric harm occurred because of the need for a common assault or common battery.
  • Reforms
    • Law commission report no 218 suggested that CA and CB should be replaced with a single offence which includes both elements
      • However we still have a problem with confusion with the language
      • s.47 ABH should be replaced with intentional or reckless injury (MR for the injury caused
        • s.20 should be replaced with reckless serious injury (MR for serious injury)
        • s.18 should be replaced with intentional serious injury
    • A draft bill for reforms was made in 1993 and the government responded with one similar to the 1993 one. But since this date no reforms have been made.

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