Evaluation of Non-Fatal Offences

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Problems with non fatal offences

The problems with non-fatal offences include:

  • DEFINITIONS of the crimes
  • UNFAIR SENTENCING
  • STRUCTURE
  • TERMINOLOGY
  • WOUNDING-no one is arrested for wounding
  • BATTERY- the slightest touch
  • INTENT- they coukd plead ignorance
  • INCONSISTENT AR & MR in ABH
  • PUNISHMENTS
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Problems with the OAPA 1861

The OFFENCES AGAINST THE PERSON ACT 1961 is a CRITICISM of non-fatals because:

  • It fails to provide LOGICAL STRUCTURAL HEIRARCHY of offences, because there are OTHER CRIMES in between, that are NO LONGER RELEVANT
  • CONFUSION is caused because the offences are DEFINE TOO NARROWLY which also OVERLAP
  • The LANGUAGE used is OBSCURE & ARCHAIC meaning COURTS WASTE TIME explaining the law
  • This ACT is too OUTDATED because it used lanugage that is OBSOLETE and that are NO LOGER VALID, which may be PRESERVED ELSEWHERE
    • E.g. SHIPWRECKING
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Evidence of problems with the OAPA & ways to resol

The OFFENCES AGAINST THE PERSON ACT 1861 has been described as:

  • As a 'RAGBAG OF OFFENCES' as it CONTAINS lots of random, NOT COHERENT OFFENCES
  • In practise, problems with the law are OVERCOME using GUIDELINES issued by the CPS & Council guidelines
  • INSTEAD, it is argued that these guidelines should NOT REPLACE legislation
  • A LOGICAL HEIRARCHY has been RECOMMENDED by the DRAFT BILL to AMEND non fatal offences (following the LC report)
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Problems with the Structure

Problems with the structure include:

  • The structures of how the offences are SET OUT along with the relationships between them, are NOT LOGICAL or COHERENT
  • The structure WITHIN the offence itself is NOT LOGICAL because there is a LACK OF CORRESPONDENCE between the AR & MR
  • E.g. The OFFENCES AGAINST THE PERSON ACT 1861 LACKS STRUCTURE because ABH is charged under s.47, whereas GBH is charged under s.20 & s.18, which is MORE SERIOUS than ABH
  • Also the law FAILS to PROVIDE a LOGICAL STRUCTURAL HIERARCHY of offences, because there offences that are NO LONGER VALID, that are charged between GBH & ABH, such as ASSAULT ON PRESERVING SHIPWRECKS
  • OVERLAP between ASSAULT & ABH as the MR is the SAME
  • This CAUSES CONFUSION
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Explanation of structure

PROFESSOR JC SMITH DESCRIBED the OAPA 1861 AS:

  • A 'RAGBAG OF OFFENCES' which explains there is an OVERLAP in the elements of the offence, such as the MR of ABH & ASSAULT is the SAME
  • Therefore there is a LACK of CORRESPONDENCE of AR & MR:
    • ABH CAUSED SIGNIFICANT HARM, but they only need to INTEND or to be RECKLESS to COMMIT AN ASSAULT or BATTERY- no match
    • The AR & MR of GBH also does NOT MATCH
  • This CAUSES  a DIFFICULTY TO PROSECUTE
  • Therefore, the OBSOLETE ACTS should be TAKEN OUT of the OAPA and the AR & MR of these offences need to COINCIDE with EACH OTHER
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Problems with Terminology

The TERMINOLOGY is a CRITICISM of non-fatals because:

  • Some of the terminology of non-fatals is OUTDATED because it has language that is not USED ANYMORE.
    • E.g. OCCASIONING means resulting in
    • INFLICTION means resulting in
    • GRIEVOUS means serious harm
  • This is means that non-fatals are UNCLEAR because ASSAULT has MULTIPLE MEANINGS:
    • E.g. Assault can be an attack, to cause apprehensio of unlawful force & common assault
  • Therefore, the offence of assault should be REPLACED
  • BATTERY is MISLEADING becayse it implies STRONG FORCE, but the LEGAL MEANING is the SLIGHTEST TOUCH without consent.
    • Therefore ACTUAL is not needed
  • BODILY is also MISLEADING BECAUSE:
    • ABH includes HARM that is NOT BODILY (PSYCHIATRIC HARM)
    • SAME with GBH because it can be BIOLOGICAL
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Definitions

Defintions of non-fatal offences are confusing, which include:

  • ASSAULT:
    • The defintion of assault includes IMMEDIATE  which has DIFFERENT MEANINGS
    • Immedate does not necessarily mean INSTANT but IMMINENT
    • Thus, immediate has been EXTENDED in LEGAL TERMS
    • Therefore, IMMEDIATE needs to be REPLACED by IMMINENT
  • BATTERY:
    • FORCE does NOT CARRY its ORDINARY MEANING
    • There are CERTAIN LEVELS of FORCE
    • The legal requirment is for d to commit the SLIGHTEST TOUCH, but its IMPLIES MORE (like punching)
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Definitions

Other DEFINTIONS of non-fatal offences also include:

  • ABH:
    • ABH is where the harm committed is harm is that is NOT SO TRIVIAL as to be WHOLLY INSIGNIFICANT
    • This means that it does NOT state what the HARM IS
    • We do NOT KNOW WHAT HARM IS TRIVIAL
    • Meaning ABH is UNCLEAR & the police or CPS have to CHARGE HOW THEY THINK
    • The MR of ABH has NO RELATION TO HARM CAUSED- there is no need to INTEND or FORESEE HARM
    • Therefore, ABH should be AMENDED to require to INTENT OR BE RECKLESS TO CAUSE SIGNIFICANT HARM
  • S.20 GBH:
    • Wounding & GBH are NOT RELATED- wounding is TYPE of harm, whereas GBH is LEVEL OF HARM
    • To 'BREAK THE CONTINUITY OF THE SKIN' could be a CUT or STAB- in practice it depends on the SERIOUSNESS
    • MR (PREVENTION OF ARREST) are completely SEPERATE OFFENCES but with equal MR
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Unfair Sentencing

The SENTENCING of non-fatal offences is unfair because:

  • The STRUCTURE of sentencing does not BEAR any RELATIONSHIP to the HEIRARCHY or the SERIOUSNESS of the offence
  • E.g. ASAULT & BATTERY= 6 MONTHs IMPRISONMENT
  • E.g. ABH= MAX of 5 YEARS IMPRISONMENT:
    • This is a BIG JUMP from assault to ABH, when the MR is the SAME
    • This sentence is pointless because the MAJORITY of people charged with ABH recieve up to 12 MONTHS
    • It is EXPENSIVE because d's can CHOOSE to use the expensivr long CC, which is UNNECESSARY
  • GBH= MIN. of 5 YEARS IMPRISONMENT
    • GBH has an INCREASED AR & MR which does not justify the same sentence as ABH.
  • s.18 GBH= UP TO LIFE IMPRISONMENT:
    • This extension is ONLY JUSTIFIED through the INTENT (NO RECKLESSNESS)
    • They committed the SAME LEVEL OF HARM but just intended serious harm.
    • This SENTENCE is IDENTICAL to that of MANSLAUGHTER (when D might have just intended serious harm- not murder)
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