- Created by: Eleanpr Hughes
- Created on: 26-01-10 19:17
NF offence intro
- largely comes from 1861 Offences Against the Person Act
- Act contains - s47 assault occasaiong ABH, s20 malicous wounding or malicous infliction of GBHm s18 wounding or with intent to cause GBH
- also s39 CJ assault and battery and common law defence of consent
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archaic / vague
- language used is very old > ARCHAIC!!!!
- phrases suh as "grevious", "whosover" - not used everday need interpretation by the judges!!!
- vague terms: "malicous" s20 - intention and recklessness, "maliceaforethought" - muder intention
- same phrase = 2 meanings = lack of consistency in courts and uncerainty
- rewriting offences so AR and MR reflect current meanings e.g. reckless causing of serious bodily harm s20 - simplify judges work and avoid problem of barristors confusing jury with complex language
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separate offences of assault and battery no longer
- usually assault preceds a battery (physical force) - assult offence not required
- trivial offences both with minor emotional & physical impact - single defnce could be created covering condict of both
- media reports describe conduct for battery as being "assaulted" - new assault offence = better understanding of law?!!!
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over lap of offences
- possible that same situation can give rise to to charge of ABH and GBH althought these offences should progress in terms of severity e.g. assault and battery, followed by ABH then s20 and finally s18!!!
- But sentencing not support: s20 and s47 same maximum sentence (5 years)
- overlap highlighted by problem of jury allowing to convict D of lesser offence where they fel charge not proven - mandair
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relaxation of meaning of subjective recklessness (
- D only has to forsee the risk of some harm - savage > sufficient to secure conviction from anything from assault to s20
- fact D does not have to forsee serious harm for s20 seems too strict for many
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separate offences in s18 and s20
- If prosecution charge wounding when should GBH and this collapses then this will waste of recourses
But could be agrgued that these offences well established and law in ths area is constantly evolving to meet changing circumstances chan fook - physcological injury. sufficient flexable way to deal with most cases
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common law defence of consent
- relate sepecically to NFA offences
- vague notions to justify victims consent e.g. rough and undisciplined horseplay (aitken) - drunk - intoxicated mistaken belief not succesful O'Grady
- Brown and others V Wilson = inconsistency in application of law regarding to sexual consent!!! - moral judgments taken into account?!!!
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Law commision - propsoed reforms 1998 Draft bill
- no longer separate wounding and GBH charge both covered by phrase "injury"
- progression achieved by categorising offences "injury", "reckless injury" (replace s47), "reckless serious injury" (s20), "intentional serious injury" (s18)
- But: need clear explanations between "injury" and "serious injury" > should be more consistent and cost effective prosecution system due to removal of over laps (Y)
- raise max senstence for equivalnt s20 offence to 7 years instead of 5!!! > formal hirarchy > offences progresses in terms of severity and injury and MR!!!
- Assault ad battery = single defence - resflect most cases of A and B occur together e.g. being punched (physical act and also in fear of punch) and taking about batteries many people refer to act as "assults"
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problems with proposed reforms!!!
- sheer lengthiness
- O.A.P.A - complicated and longwindy > new offence some of these problems > complicated for jurors
- overall though - Good!!!! - too long being realised!!!!, should any problems occur job of courts to sort it out!!!
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