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Non-fatal offences evaluation
It has been universally evident that them L for NFO OAPA 1861 is in need of reform.
Recommendations for the reform of this area of the L have been made by both the Criminal L
Revision Committee and the LC. The LC pointed out that there are 3 main problems with the OAPA
1861. These are that: the Act uses complicated old fashioned language, the structure of the act is
complex and that non-lawyers find the Act completely unintelligible.
The first observation to be made about the L of NFO is that it is not completely codified. The separate
offences of A and B remain common L offences, albeit with their separate nature confirmed in S39 of
the CJA 1988, but the more serious offences ABH, GBH, and GBH with intent are contained in the
Even at the time it just put all existing legislation into one act and was described as "a rag-bag of
offences", and as it is now nearly 150 years old, the criticisms are even more acute. Some of the
language used is now archaic GBH simply means serious harm and `A occasioning ABH' most
commonly means some kind of B causing real harm to the V. 'Inflict' applies that there must be some
force, however it was recognised in Wilson (1984) GBH can occur without A or B. It was also
disregarded by the SC in Burstow (1998). As to case L, the definition given to wounding in
Eisenhower is far too wide, as it could cover anything from a minor cut or even a graze. An
interesting contrast can be made here with regard to the Theft Act 1968, which was intended to
codify the entire L of theft. Within 10 years, a further Theft Act had to be passed and there have
been significant statutory additions and amendments since. Yet the 1861 Act remains unamended.
Other linguistic criticisms arise over the words A and B. Although A is technically used to describe
`causing the V to apprehend immediate unlawful violence', it is most commonly understood to refer
to some sort of physical attack. The strict definition of B is `unlawful infliction' and no injury of any sort
is required. Probably the most serious criticism of the 1861 Act concerns the issue of MR for each of
the offences. S47, which deals with A occasioning ABH, is entirely silent on the issue of MR, and it has
been left to the courts to determine what it is. The cases of Savage and Parmenter now confirm that
the MR of A or B intention or R to act done is all that is required. In S20, the word `malicious' has
been interpreted to mean `intention or R as to the act' (Mowatt and Grimshaw). In interpreting S18,
judges and academic lawyers have concluded that `malicious' is effectively redundant, except at
regards the secondary MR intent to resist arrest because it makes it more confusing.
A further point of criticism is that this Act is now undergoing almost perpetual revision and rewriting
by judges, which could almost be called `law-making by statutory interpretation'. The case of Dica is
a good example of the ability of senior courts to amend the law. The courts confirmed that the injury
by reckless infection does constitute a S20 offence and that Clarence was overruled on the issue of
direct bodily violence being required which is bad because . ..
Given the judicial decisions in Savage and Mowatt, it is clear that these cases now involve
constructive liability making it unnecessary for the Crown to prove intention or R as to the AR of the
offence. A conviction under S47 can be obtained by proving that ABH was in fact caused common A
and that the D either intended or was reckless as to the A, or B. For neither of the offences is there a
need to prove that the D intended or was reckless as to causing any level of harm at all. This issue of
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MR should be related to the AR of the offence and to the
possible consequences of being convicted of that offence.
Finally, the `hierarchy of sentencing' can easily be criticised. Both A and B have the same maximum
sentence of 6 months or a £5000 fine, yet B is a much more serious offence. Examples include
changes in A (Ireland (1997) and Burstow (1998).…read more