Evaluation of 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

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• This ACT is too OUTDATED because it used lanugage that is OBSOLETE and that are NO LOGER VALID, which may be PRESERVED ELSEWHERE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

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)

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• Also the law FAILS to PROVIDE a LOGICAL STRUCTURAL HIERARCHY of offences, because there offences that are NO LONGER VALID, that are charged between GBH & ABH, such as ASSAULT ON PRESERVING SHIPWRECKS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

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

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

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)

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

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)