- OAPA has been around for over 150 years. Built up through case law.
- This means that the law has been tried and tested.
- New laws and legislation can be easily introduced where needed.
- Example: Dica 2004 introduced biological GBH.
- When there was little mention on psychiatric injury cased
- Due to OAPA age, offences are badly defined and complicated, old-fashioned.
- 'Maliciously in s20
- caused problem. Implies intention whereas Mens Rea is recklessness. Also in s18, Mens Rea already defined as specific intent.
- 'Wounding' has a common definition.
- Defined as cutting all layers of skin (leaking). Small graze would count as wound facing D with s20 malicious wounding.
- 'Inflict' applies that there must be some force, however Lord Roskill recognised in Wilson (1984) GBH can occur without assault or battery. Also disregarded by HOL in Burstow (1998)
- 'Maliciously in s20
Language is too complicated for the average man to understand.
- Assault and Battery have a max sentence of 6 months whereas s47 has max sentence of 5 years.
- The mens rea is exactly the same. Only difference is the ABH (which does not have to be major)
- Max sentence for s47 and s20 is same even though MR and AR are higher.
- The increase in sentencing for s20 to s18 is from 5years to life, due to S18 having more serious mens rea. Very large increase!
- Usually cases dropped from 18 to 20 as intent is hard to prove.
Changes in statutory offences via case law
- Due to poor case decisions in the past changes must be made to the OAPA.
- This is very expensive and time consuming
- Example: Changes in assault Ireland (1997) and Burstow (1998).
Draft Criminal Law Bill (consultation paper), issued by the Home Office in 1998 called 'Violence: Reforming the OAPA1861'.
- Language changed/modernised. Serious injury rather than GBH.
- This set out 4 main offences replacing s18, 20, 47 and A&B. These are:
- Intentional serious injury.
- Reckless serious injury.
- Intentional or reckless injury.
- Assault - Intentionally or recklessly;
- apply force to body of another, or
- cause to believe force is imminent.
- Injury was also defined including physical and mental injury.
- Wounding was not mentioned.
- bad cut = bad injury (vise versa)
New sentencing framework also set and clear definitions for mental and physical injury were given by the Law Commission