- Created by: Elliiphant
- Created on: 13-05-15 15:14
The 'grievous' in GBH- like the act itself, is outdated language and not understandable to the general public (including the jury).
- Smith defines GBH as RSH, Saunders describes it as SH- clear difference between the two.
- The judge will explain 'grievous' differently each time to the jury - different outcomes in cases which is unfair on each individual defendant.
The work 'malicious' also leaves room for confusion. Many don't understand what it actual means.
- It's a MR word and so we expect it to be used within s.18 of GBH (intent) but it's actually used in the lower offence of s.20 GBH malicious wounding. It would make more sense for it to be used when pure intent applies.
The word 'assult' which means in common assult to .... however peoples perseption of assult is that it means to cause someone physical harm like in common battery
- assult is also used when you have caused someone psychiatric harm even if you haven't touched them and so again we have this confusion over what people think assault really means.
Lack of Logical Structure Structure
HLA Hart (legal philospher) said ''might bring the law into disrupte.
There is an overlap between the offences compared with the defences in sentencing.
s.47 is similar to other offences in terms of the level of MR required. The cases of Savage and Parmenter now comfirm that MR is intention/recklessness to commit that offence.
With CA and CB the same levl of intent is required as it is for ABH, but when you look at the sentences ABH= 5 years. CA/CB= carries 6 month sentences.
Also s.47 and s.20 both have a 5 year sentence yet GBH is a much more serious offence= unfair for victims who want to see the person who caused them harm given harsher punishments for the type of crime they committed.
There's a big leap in the sentences given in s.20 and s.18 as s.18 carries a life sentence.
Do you punish a D for the harm they caused/ harm they intended. V= appropriate sentence to reflect harm done, D= judged on the level they intended. Currently we don't have a system based on either.
Since 1861 methods of communication have changed but the offences haven't.
When CA was made it was seen was seen to be committed through a face to face confrontation but due to phones, laptops etc... CA can be committed in different ways.
CA is therefore not fit for purpose as it was not designed for anything other than face to face confrontation.
Also in 1861 (when act was made) it was not known that psychiatric harm existed, yet it has been included in ABH and GBH.
In ABH it's very hard to prove that psychiatric harm occured because of a need for a CA or CB
Reforms for the non-fatal's
- The Law Commission report no.218 suggested that assult and battery should be replaced with a single new offence of assault that includes both elements.
However with this we still have the problem of confusion within the language as assaults would till include the apprehension of violence which people don't associate it with
- Also proposed that s.47 ABH should be replaced with the offence of intentional or reckless injury (MR for injury caused), s.20 should be replaced with reckless serious injury (MR for serious injury) and s.18 to be replaced with intentional serious injury.
A draft bill for reforming the non-fatals was written in 1993, and the government responded with a bill based on the 1993 one. But, since this date no reforms have been made.