Evaluation of Non-Fatal Offences

• 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

Language

• 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)

Language is too complicated for the average man to understand.

Sentencing

• 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