criticisms of non fatals

Intro

This area of law is in need of reform
Recommendations have been made by the criminal law revision committee and the law commission

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JC Smith described the OAPA as a rag bag of offences
Even when OAPA was passed it was out of date, now over 150 years
Language used is often archaic eg- actual, grievous, malicious
assault and battery mean a different thing to the layperson
This can confuse juries as they have to determine what it means
LCR stated that laymen should not be put to the trouble of understanding these mysteries
Maliciously- s18- intention s20- intention or recklessness
If jurors do not understand language this breaches the d's right to a fair trial
definition of wound in eisenhower and moriarty are too wide

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s47 and s20
People are guilty for the outcome rather than what they intend
Goes against the principle that people can only be guilty for what they foresee
The MR of ABH is assault or battery, not ABH
LCR states that it is unjust to punish people for the results of their conduct that is neither intended nor foresaw.
2014 consultation paper- in many offences there is a lack of correspondence between the external elements of the offence and the required mental element.
D can be held liable for results that are more severe than what D foresaw

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Assault- 6 month
ABH - 5 years
s20 - 5 years
s18 - life
There is a potential for overlap
There is a jump from one offence to another
It is accepted that maxiumum sentence will rarely be imposed, but it is unfair that maximum for s20 and s47 are the same
CMV Clarkson - this is a serious distortion of the relative seriousness of the offences

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Even basic offences elements such as actual and grievous bodily harm have to be expressed via case law
Unsatisfactory as cases can be appealed to the CA and SC
Little certainty in some situations and this would not be necessary if statute was clearer
RvR
Merritt and Balfour

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2014 paper- we live in a free and non paternalist society
We have the right to consent
However in a free society it is still arguable that citizens should be protected against themselves
Lord Templeman- it is an offence for a person to abuse their own body and mind by taking drugs
it is further arguable that freedom to harm oneself is undermined when another party is involved
Society has a direct interest in limiting the extent to which the person should be allowed to injure others with consent eg. brown and wilson
homosexual?

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LC draft bill 1993 tried to get rid of archaic language
Home office 1998
OAPB assault battery ABH and GBH would be assault 7 years, intentional or reckless inury 5 years, reckless serious injury 5 years and intention serious injury life
now self evident that there is an unarguable case for codification
2014 law commission said that if reforms were enforced there would be a simplification of law

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