- Created by: rachel
- Created on: 11-06-14 16:10
Non-Fatal Offences Eval.
INTRO- Professor JC Smith- 'a rag bag of offences brought together from a wide variety of sources with no attempt to introduce consistency as to substance or form'. Offences Against the Person Act- offences all mismatched together with no logical structure in terms of mens rea and sentencing. Outdated- made 150 years ago.
P1- Terminology is outdated and confusing. 'Wounding'-JCC v Eisenhower. Same level as GBH. CPS Charging Standrds recommend that a minor wound is charged under S47. 'Inflict'/'cause'- inflict sounds more serious/greater intention. Common law- Burstow- 'inflict' and 'cause' mean the same thing.
P2- Law C.-change AR and MR for S20/18. No reference to wounding. S20- offence of recklessly causing a serious injury to another. S18- intentionally. Current problem would not arise- wounding would be charged under S47-more serious nature-S20/S18. What would amount to the difference between an injury under S47 or S20/18? As prosecution have to prove an assault/battery as part of the AR for a S47 offence, may be easier to prove S20.
P3- Inconsistency of max. sentencing. S20/47- 5 years. S18- life. Causing bruising = recklessly causing permanent injury.
Non-Fatal Offences Eval.2
P4-Law C.-replace S47 sentence with lower sentence- 3years. Keep S20 the same- some would argue it does not reflect the seriousness of injury caused/the max. sentences between S18/S20 cannot be justified because of the different levels of mens rea.-If D intends serious injury, maybe it is fair to recieve max. sentence.
P5-Constructive liability- D's liability based too heavily on AR, AR and MR should be equally weighted- correspondence. S47/S20- constructive liability. D may have little control over consequences of actions. Sufficient to show that D intended/was reckless about the assault/battery- Savage. S20- need to prove D intended/was reckless as to causing some harm- Parmenter.
P6-Law C.-change MR of S47- 'intentionally/recklessly causing injury', S20-'recklessly causing serious injury'. Address unfairness issue. What amounts to injury and serious injury-no definitions been put forward.
Non-Fatal Offences Eval.3
P7-OAPA- does not define key terms. Defined and extended through common law. Confusion and uncertainty in the law. Judges creating law- undermines Parliament. Wounding, GBH-Smith and ABH-Chan-Fook have all been defined by common law. Keeps law flexible. Current and relevant by updating law with case law. Psychiatric harm in GBH- Burstow, ABH-Chan-Fook, biological harm- Dica-S20/18.
P8- Law C.-codify common law. More certainty. Time locking the law. No need for codification- updating law w/case law keeps it current and relevant.
CONCLUSION- Needs reforming. Inconsistent/unfair-sentencing/constructive liability. Differences between S47/20/18 are not clearly spelt out. Suggestions by Law C. would improve this. Made over 20 years ago- unlikely that they will now be acted upon. Law Commission indicated- hoping to review the current law in 2014- let's hope Parliament will act upon any proposals and take the much needed steps to reform the law.