Why non-fatal offences need reforming
Quotes condemning the current law surrounding non-fatal offences:
The legal academic Professor J. C. Smith described the Offences Against the Person Act 1861 as a "rag-bag of offences brought together from a wide variety of sources with no attempt to introduce consistency as to substance or as to form".
A Law Commission report in 1993 described the Offences Against the Person Act 1861 as "inefficient as a vehicle for controlling violence".
A 2014 Consultation Paper by the Law Commissions stated that "offences of violence are some of the most common in our criminal justice system (...) it is therefore essential that laws in this area are clear and fit for purpose in the 21st century".
The OAPA is Victorian legislation which contains a diverse set of offences and was never intended to be a consistent set of rules. As a result, there is no uniformity of language between the sections, and key words and phrases are not defined in the Act.
The Act uses complicated and obscure language such as 'maliciously' and 'grievous' which is difficult for non-lawyers to understand. There is no statutory definition of assault or battery. The terminology is also not the same throughout the Act ~ what difference is there between 'causing', 'inflicting', or 'occasioning' harm?
The Act contains offences which are no longer necessary in the 21st century, such as S17 "impeding a person endeavouring to save himself from a shipwreck", and S39 "assaults with intent to obstruct the sale of grain".
The law is outdated as the Act focuses on 'bodily harm' but does not mention psychological injury. Lord Steyn in R v Ireland commented that "the Victorian legislator (...) would not have in mind psychiatric illness", but mental illnesses are now better known and the law needs to reflect this.
The courts need to be creative in relation to stalking (R v Cox) and biological GBH (R v Dica).
Case law has provided new definitions for 'maliciously' (intention or recklessness) and 'grievous' (really serious), so these definitions should replace the existing obscure language.
Case law has also clarified the gap relating to psychological injury with R v Chan-Fook recognising that "recognised clinical conditions" relating to psychological injury can amount to ABH, and R v Ireland recognising that "really serious" psychological injury can be GBH.
In R v Dica and R v Porter, the courts recognised that deliberately infecting another person with HIV should result in a conviction for S20 GBH, however many people think this is too lenient and that it would be better to introduce a new offence for this.
This case law resolves some problems and gaps in the law in the short term, but ideally the issues should be addressed by Parliament.
Inconsistency and overlap between offences
It can be difficult to determine which offence to prosecute, as the differences are unclear. The difference between battery and ABH is unclear, but the sentencing difference is huge.
The Law Commission notes that "GBH S20 is seen as more serious than ABH S47 but the maximum penalty (five years) is the same".
The difference between GBH S20 and S18 is often merely a policy decision for the CPS, and only 23% of offenders prosecuted under S18 are eventually convicted of that offence, with most of the remainder being reduced to lesser offences such as GBH S20.
The Law Commission note that the lack of a clear hierarchy of seriousness between the offences has led to "systematic undercharging compared to what is legally possible".
The introduction of the new offences outlined by the Law Commission would help to solve these problems (this will be discussed in more detail later).
Hierarchy of seriousness is unjust and immoral
The statutory and common law offences were developed in different centuries so there is no logical sentencing structure to reflect the seriousness of each offence.
The legal philosopher HLA Hart wrote that this "might bring the law into disrepute as principles of justice or fairness between different offenders require morally distinguishable offences to be treated differently and morally similar offences to be treated alike".
An example of this is the difference between ABH and battery, which is marginal, but the one carries a maximum sentence of 5 years and the other 6 months, so Hart would say this is both morally and legally unjust because the offences are so morally similar.
The Law Commission published their proposals for reforms to non-fatal offences in "Reform of Offences Against the Person (2015) Law Com No 361" in November 2015. These proposed reforms built on the 1998 Home Office Bill.
The draft Bill contains updated language and statutory definitions of 6 new offences to replace the existing law:
- Intentionally causing serious injury
- Recklessly causing serious injury
- Intentionally or recklessly causing injury
- Aggravated assault
- Physical assault
- Threatened assault
These offence have a clear sentencing structure, with the highest carrying a maximum sentence of life imprisonment, and the lowest a maximum sentence of 6 months.
Responses to these reforms
Many saw the draft bill and the new modified version as an improvement to the existing law but there are some criticisms.
Many feel the 'new' ABH offence should be divided into two separate offences with different sentences to reflect the difference between intention and recklessness.
The definition of 'injury' is vague and gives little assistance in the boundaries of harm between the different offences.
There is no specific reform relating to biological GBH. The Law Commission did consider this issue but concluded that "the issues were more complex than time or space allowed", so reforms for this in future would be needed.