Special Study 2017 - the law commission

  • Created by: atp_
  • Created on: 07-04-17 12:52
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  • Analysis of definition of injury
    • Mental
      • Recognised psychiatric illness / condition
      • not Psychological stress
        • Chan Fook
      • Maintain current definition
    • Disease
      • Should not be charged with s.47
      • should only be a criminal offence when there is intention
      • All cases: Dica, Krozani, and Golding were all reckless
    • OAPA 1861 Law Commission comments 2015
      • Injury offences and how they differ
        • Clause 1
          • intentionally causing serious injury - max sentence 7 years
            • There's no specific mention of wounding - a wound can either be a serious injury or an injury depending on the facts
        • Clause 2
          • Recklessly causing serious injury - maximum 7 years
            • In the offence of recklessly causing serious injury 'D must foresee the risk of serious injury' (unlike the existing s.20 where it is enough to foresee any injury)
        • Clause 3
          • Intentionally or recklessly causing injury - maximum 5 years
            • The offence under clause 3, unlike 47, does not require an assault / battery to occur - any means of causing injury is sufficient.
      • Main issues about Offences against the Persons Act 1861
        • The 1861 Act has been in force over 150 years and has been frequently amended.
        • Despite a long history of criticism of many aspects of the act - it remains heavy use  : the offences in the Act form the basis of over 26000 prosecutions every year.
        • Frequent changes due to the law have left it in coherent and confusing state with more provisions repeated that currently in force
        • 1/3 of ABH charges dealt with by the Crown Court are given under 6 months
      • Proposed new offences
        • 1. intentionally causing serious injury
          • (wounding is not included unless the wound is a serious injury)
          • Crown Court. Maximum - Life
        • 2. Recklessly causing serious injury.
          • D must be reckless about the risk of serious injury; wounding is not included unless the wound is a serious injury.
          • Either Way offence. Maximum 7 years
        • 3. Intentionally or recklessly causing injury (whether or not by assault)
          • D must intend or be reckless about the risk of some injury.
          • Either way offence. maximum 5 years
        • 3. (recomenned in report but not in the draft bill) Aggravated assault
          • includes every physical or threatened assault which in fact causes injury, whether or not D intended or was reckless about injury
          • Magistrates maximum 12 months
        • 4. Physical assault
          • should not be used for cases of low-level injury, as these may be charged as aggravated assault.
          • Magistratesmax 6 months
        • 4.threatened assault
          • Magistrates; 6 months
        • Administering a substance capable of causing injury
          • where injury caused, offences under clauses 1 to 3 may also apply. There is also an offence of using a stupefying substance to enable sexual activity, with a maximum sentence of 10 years: Sexual Offences Act 2003
          • Either way; 5 years
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