Revision Booklet (1 of 3): Question (C)

Evaluation and Reform

Non-fatal offences against the person

Murder / voluntary Manslaughter
*Defences

29th November 2010

*the exam question is most likely to be on Murder, Manslaughter or Non-fatal offences

Potential Question (1): Non-fatal Offences
against the Person

Example of a potential examination question

Critically consider the strengths and weaknesses of the current

law on non-fatal offences against the person, including in your
answer any appropriate suggestions for reform. (25 marks)

Potential Content

(A) Critical consideration of structural issues (connected, for instance, with sentencing).
Language and associated issues

(B) Critical consideration of specific actus reus and mens rea issues (including the issue of
consent in non-fatal offences)

Note: The potential content should be understood to include some discussion of possible reform,
though this need not apply to every issue in the potential content

Examiners Report

Again, there were many excellent answers, and few

candidates were unable to make at least a reasonable
attempt. Candidates explored both general structural
issues and more specific actus reus and mens rea
issues. Discussion of structural issues tended to focus
on matters which included inconsistency in sentencing;
the (alleged) illogical numbering of offences, the fact
that assault & battery are not incorporated into the
1861 Act, and problems with language issues.
Some very good examples of the latter were given, referring to out-of-date terms such as
“occasioning”, “grievous”, and “malicious”, with strong use of authority. Typical actus reus issues
considered included the difficulties in the interpretation of “immediacy” in assault and the nature
of “wounding” as a kind of injury rather than as a level of injury. Mens rea issues addressed
included the lack of correspondence between actus reus and mens rea in most of the offences,
particularly in s47 and s20.

Candidates also frequently referred more approvingly to the capacity of the Courts to adapt the
law to changing circumstances, such as the recognition of harassment and the phenomenon of
transmission of serious infections such as HIV. For some candidates, however, this was yet
another weakness, since it indicated that the framework of the law was significantly defective and
needed to be subjected to modern legislation. On the whole, candidates avoided discussion of
reforms, but when they were introduced, they were often linked perceptively to the deficiencies
already identified.
 Model Answer (1): Non-fatal
Offences against the Person

Discuss the extent to which the law relating to non-fatal offences is in need of
reform. [25]

Summary of intro…
The law relating to non-fatal offences has been criticised on a number of

grounds, most authoritatively by the Law Commission who stated that the

language is outdated and obscure, the structure of the offences is illogical

and many of the laws are ineffective by today‟s standards. This essay will

explore the central criticisms of the OAPA with reference to case

authorities and briefly explore attempts to reform the law.

PC 1 language: with examples The Language used in the OAPA 1861 is no doubt out dated for example

the words „grievous‟ and „malicious‟ are not generally used in modern

times and have required interpretation by the courts. Grievous being

interpreted as meaning really serious (DPP v Smith) (or serious after

Saunders (1985)) however, malicious has been given an interpretation

quite unrelated to what one might expect. In general parlance the word

malicious is perhaps related to evil or hatred whereas in legal terms

malicious means intention or reckless. This was confirmed by Coleridge J

in Martin (1881). The wording of the act creates grave uncertainly as the

use of words like malicious have to be strained to give them a meaning

that best fits the crime.

PC (1) Mowatt and ulterior intent According to the case of Mowatt, for s18 offence the word maliciously

appears superfluous as if one intends GBH, one must foresee GBH as a

probable or possible outcome. There remains a real danger that in

absence of at least some foresight of harm, the risk is present that if one

accidently injures another in order to evade arrest may be guilty of an

offence carrying a maximum sentence.

PC (1) issues over the terms assault and There exist further problems with misleading language used. For
battery
example, in every day usage the word „assault‟ generally conjures up an

image of physical attack whereas in legal terms no physical contact is

required.

The term „battery‟ in general usage suggests a higher level of force than

is actually required by law. The use of the word bodily harm under s.18,

20 and 47 includes psychiatric harm according to Ireland, Burstow &

Constanza yet it is highly unlikely the Victorian Draftsmen would have

had this type of harm in mind. On a positive note, it has allowed the law

to develop, recognizing new offences such as Harassment; that said

these are dealt with by other statutes like the Protection from Harassment

Act (1997)

PC (1) Issues over the term inflict… Use of the word „inflict‟ has caused the courts considerable problems. It

was first interpreted as requiring proof of an assault or battery (Clarence).

In Wilson it was stated all that was required was the direct application of

force, however, in Martin the defendant was liable where the force was

indirectly applied. In this case, D placed an iron bar across a fire exit in a

theatre and shouted „Fire‟. Several people were injured in the panic to

leave. D‟s conviction for GBH was upheld.

PC (2) differences between s.39 CJ and The structure of the offences can also be criticised. There is no statutory
47 OAPA…

definition of assault or battery and there are no clear boundaries between

the offences. Any intentional touching of another without consent will

amount to a battery (Collins v Wilcock) whereas any hurt or injury

calculated to interfere with the comfort of the victim amounts to ABH

(Miller). There seems little difference between the two other than

interference with comfort yet battery carries a maximum penalty of 6

months whereas ABH 5 years.

PC (2) anomalies over AR and MR The maximum sentence for s.20 grievous bodily harm (five years'

imprisonment) is the same as that for s.47 actual bodily harm, even

though the former is by definition more serious. This is illogical: either the

sentence for GBH should be increased, or that for ABH should be

reduced, or the two offences should be merged. The mens rea for several

offences does not match the actus reus. A person who does not foresee

any harm (but foresees apprehension or a mere touch) can be convicted

of assault occasioning actual bodily harm (Savage); a person who

foresees only slight injury can be convicted of inflicting grievous bodily

harm. The mens rea for s.18 GBH or wounding, which carries a possible

life sentence, could be no more than an intention to escape plus foresight

of some (minor) injury.

PC (2) anomalies over wound in s.20 It is illogical to have a separate offence of wounding which is considered

alongside GBH. A breaking of the 7 layers of the skin constitutes a wound

(Eisenhower). Thus a pin prick could suffice which is clearly far removed

from amounting to really serious harm.

PC (3) developments in the law A number of cases (e.g. Burstow, Dica) show how the judges have been

able to adapt the non-fatal assault offences to meet modern

requirements. In 1993 the Law Commission recommended the creation of

a specific offence of transmitting HIV recklessly, following the case of Roy

Cornes, an HIV-positive hemophiliac who was accused of recklessly

infecting four women. He died before his case could reach court. It

appears as though the courts have created an answer to such problems

under the common law and Dica confirms that the V must fully consent to

the known risk of infection if the D is to be found not guilty of s.20

offence.

PC (3) Law Reform What these cases illustrate is that there is a definite need to reform a law

which is as outdated as it is confusing. The current framework under the

OAPA creates confusion which can sometimes lead to illogical results.

The Law commission have, on several occasions, tried to address the

above issues, most notable in their Paper, "Legislating the Criminal Code:

Offences against the Person and General Principles" (1993) and later in

1998. These have yet to be made into legislation but government has

responded by stating that the aim of the proposed new offences would

enable violence to be dealt with more effectively by the courts, with the

law set out in plain, modern language.

Conclusion
Notwithstanding the suggested reforms, the 1994 charging standards

have at least gone some way towards alleviating the above

inconsistencies and in addition, the sentencing tariffs have tried to draw a

clear line between the offences of 47 and 20.

 Model Answer (PC2): Break it down…

The question wants you to review 3 PCs. they are:

1. Issues over language

2. Issues of the structure of the offences
3. Developments and reform

Issue (1) Language

1

5
 Model Answer (PC2): Break it down…

The question wants you to review 3 PCs. they are:

1. Issues over language

2. Issues of the structure of the offences
3. Developments and reform

Issue (2) Structure

1

3
 Model Answer (PC3): Break it down…

The question wants you to review 3 PCs. they are:

1. Issues over language

2. Issues of the structure of the offences
3. Developments and reform

Issue (3) developments and reform

1