Evaluate the current law on non fatal offences, including suggestions for reform
Law surrounding non fatal offences has been much debated and it seems unanimously accepted there is need for reform. The () has been heavily criticised . When it was written it aimed to bring together common law into a statute and was never written as a logical and consistent set of rules.
As argued the law is ().
The looked at need for reform, due to widespread criticism. The published a report in 1993 which included reforms in a Draft Bill.
The have described as .
In 1998, the Home Office published a consultation paper which included a Draft Bill, largely based on the proposals.
The lacks definitions of key words and phrases which therefore must be developed through case law which is less finite. Terms are constantly being argued and redefined in appeals, leading to a lack of clear decision making.
The word is used in S20 and S18, but not defined in .
been interpreted to mean () which is clearly an extension of its ordinary modern meaning (simply imply bad motive).
Under S20, is used to infer mens rea, under S18 it is unnecessary as mens rea is defined as .
The definition of the offences of assault and battery are important as used as elements of other offences.
However, confusion surrounds the precise meaning of assault, compounded by the use of the term (referring to assault and battery). The word has been used in different ways in different statutes, even within the same statute. For example, S39 of the () refers to but S40 refers to .
No statutory definition of the offence of assault despite the length of sentence and offence classification being set out in S39 of .
‘Inflict’ and ‘cause’
S20 defines the offence by the phrase compared to S18 which states .
Originally it was understood that had a narrower meaning than and required an assault or battery. Now it is established that and have the same meaning and do not require assault or battery ().
The wider interpretation is criticised for permitting liability under S20, where there is insufficient fault on the defendant’s behalf to justify such a serious conviction. Perversely, a defendant could be held liable for a S20 offence with mens rea of subjective recklessness more easily than liable for the lesser offence under S47 which does require an assault.
The does not define term .
Through case law, breaking of the skin has developed as the key factor (). This definition does not follow the normal understanding of the word .
Theoretically allows for an injury caused by pin prick to be counted as a S20 wounding offence. The recommend more minor injuries charged under S47. These are only guidelines which are not legally binding and once a charge is brought it will be decided in relation to case law and statute.
Many aspects of this area of the law are seen as inconsistent.
The offence under S39 of the and offences under S47, S20 and S18 of the are not designed as a logical hierarchy. This causes inherent problems with non fatal offences against the person.
There are conflicting ideas about what is sufficient mens rea.
S47 offence has the same mens rea as the lesser offence of assault or battery (). It is argued that this is unjust as it does not even require defendant to realise that there is a risk of any injury.
Liability for GBH will occur where the defendant intended minor harm or was reckless as to causing some harm (). This has been criticised as the punishment fails to meet the culpability of the defendant and is therefore unfair.
Inconsistencies exist in the maximum sentences available for each offence.
For an offence under S39 of the , maximum 6 month prison sentence compared to a maximum 5 year prison sentence for a S47 offence under the . The mens rea is the same for these offences. It is argued such a variance in potential sentence is unjust.
Under , both a S20 and S47 offence have maximum 5 year prison sentence. Both offences require the same mens rea but a S20 offence causes a much more serious injury.
Legal philosopher wrote: .
The is 150 yrs old which causes problems. Strengthening the demand for updated legislation to cover new circumstances. It is argued that the Act does not reflect social issues and concerns relevant today. Since there have been vast changes in way we communicate, issues raised by use of telephones and emails etc.
Judges have to interpret the law in relation to completely new technologies or more developed understanding.
The phrase used in S47, S20 and S18, did not recognise possibility of psychiatric illness caused through fear and required judges to develop case law alongside greater medical knowledge (). noted: ().
Proposals for reform: Draft Bill
The Draft Bill set out a number of reforms and aimed to provide much needed reform.
It replaces the old offences with a more logical structure.
S39 offences are replaced with statutory definitions for assault and battery.
S47 offence is replaced with an offence of intentionally or recklessly causing injury to another. To carry a maximum sentence of five years imprisonment. It is not necessary to prove injury was caused by an assault or battery.
S20 offence is replaced with an offence of recklessly causing a serious injury to another. To carry a maximum sentence of seven years. It removed the word and replaced with . There is no reference to wounding.
S20 offence is replaced with an offence of intentionally causing a serious injury to another. To carry a maximum sentence of life. There is no reference to wounding.
There is a definition of .
This covers (including pain, unconsciousness and any impairment to physical condition) and (including any impairment of a person’s mental health).
The harm intended or foreseen must relate to the offence committed (contrary to and ).
Intention and recklessness are expressly defined.
The Draft Bill received much criticism leading to a lack of progress in introduction. It has still not been enacted.
It has been argued the proposed new S47 offence of intentionally or recklessly causing injury to another should be split into two offences, intentionally causing injury to another and recklessly causing injury to another. This would bring the new S47 offences in line with those replacing S20 and S18 offences.
The definition of is criticised for failing to make a clear distinction between what is sufficient for an injury and what would be charged as the lesser offence of assault.
The word remains undefined. The term continues to mean both an assault and battery.
There are also concerns that as proposals are still not been adopted the law remains unsatisfactory.
В боковое зеркало заднего вида он увидел, как такси выехало на темное шоссе в сотне метров позади него и сразу же стало сокращать дистанцию. Беккер смотрел прямо перед.
Вдалеке, метрах в пятистах, на фоне ночного неба возникли силуэты самолетных ангаров.