UNIT 3; NON-FATAL OFFENCES REFORM REVISION PLAN

Non fatal reform plan

JUN 2010 Write a critical analysis of the current law on the non-fatal offences against the person. Include in your analysis a discussion of what reforms might be desirable.  – Start each reform “one that may be desirable is”

JUN 2011 The non-fatal offences against the person have been subjected to frequent criticism Explain and discuss these criticisms, and suggest what reforms might be desirable.

JUNE 2012 Consider what criticisms may be made of the non-fatal offences against the person. Discuss what reforms might be introduced to deal with these criticisms.

JUNE 2013 critically evaluate the current law on non-fatal offences, and suggest any reforms that you consider might improve the law. – one reform that could improve the law is…

Introduction	Professor David Ormerod QC on the law commission website recently stated with the emergence of the non fatals scoping paper that law on non fatals “is obscure and sometimes inaccurate” thus illuminating only one of the very criticisms with this area of law. A draft criminal law bill produced in 1993 (no 218), and a home consultation office paper produced by the law commission in 1988 exposes the laws anomalies and suggests areas for reform that according to Henry LJ in R v Lynsey is “in urgent need… to simplify it” As of  November 2014, by the Law Commission have introduced a Reform Of Offences Against The Person no. 217 scoping paper exploring the options for reform. Raising the possibility of a new offence of causing minor injury, according to Professor Omerod on the LC website, aims to resolve current inefficiency in how trials are allocated between courts and ensuring that they are tried relevantly in terms of “gravity and complexity”. Professor Omerord also stated that around 7-12 per cent of low level injury cases are tried in the crown court “yet receive sentences that could have been imposed in the magistrates”. This needs to be made more efficient. The scoping paper closed in February 2015 so there is hope these proposed reforms have gained the gravitas needed  to make change.
Issue 1 Archaic language and misleading	The language and law in this area of law has been criticised to be misleading and antiquated since numerous offences according to Omerod ( in light of the 2014 paper) states it “includes numerous offences that serve no purpose in modern society”. e.g. impeding a person endeavouring to save himself from shipwreck (section 17 of OAPA). Furthermore, the language is also outdated. The 2014 Paper picks out ‘bodily’  (para 3.7) which is liable to be understood as meaning the wrong thing. A normal reader thinks of physical injuries not suspecting that ‘bodily harm’ is capable of covering psychiatric conditions. Another example is the use of the word “assault” in section 47. This is misleading as battery can form the basis of section 47, not just assault. The interchangeable words of “cause” and “inflict are also an issue. The use of “malicious” in s18 wounding with intent has also come under scrutiny as the Men’s Rea is already defined as “with intent”, rendering the word “malicious” redundant. .
Reform	The draft bill suggested that antiquated or misleading language should be replaced with consistent and succinct vocabulary. An example of this is the draft bill opting to use to simply use “cause” rather than “occasion” or “inflict”. This makes the law more consistent. To clarify section 47, they have simply removed the offence, replacing it with clause 3 “intentionally or recklessly causing injury”. This is much more concise and removes any confusion regarding whether a battery can form the basis of s47. The same thing has occurred with “malicious”. Wounding with intent is replaced by clause 1 “intentionally causing serious bodily harm”. This is also more concise.
Issue 2 Badly defined and unorganised	Secondly, the law on non-fatals is perhaps badly defined and unorganised. Assault and Battery have no statutory definition, and the more serious offences are contained in the OAPA. Professor JC Smith described the law on non-fatals as a “rag bag of offences, put together with no thought to substance or form”.  In some situations the confusion with assault and battery can even produce unfair results. The 2014 Paper also that the terminology was ‘the main problem’ in that a defendant who has clearly carried out some kind of attack can sometimes slip through the crack between the two offences. This occurred in R (KRACHER) v LEICESTER MAGISTRATES’ COURT (2014) Here, Kracher was alleged to have punched V on the arm and threatened to beat him up but was only charged on the basis of the punch not the threat. Being unsure that a punch had been delivered the conviction was quashed. This is a major anomaly exposing how the unclear offences of assault and battery essentially allow some defendants to get off “scot free”.
Reform	The 1988 draft bill suggests that the badly defined current offences will be replaced with four sections. S18 will be replaced by s.1(1), intentionally causing serious injury to another person. S20 will be replaced by s.2(1), recklessly causing serious injury to another person. S47 will be replaced by s.3(1), intentionally or recklessly causing injury to another person.  Assault/battery will be replaced by s.4(1) A person is guilty of an assault if he intentionally or recklessly applies force to or causes impact on the body of another or  intentionally or recklessly causes the other to believe that any such force or impact is imminent. This reform will mean that all the non-fatal offences are found in one place, making the law more concise and therefore easier for the jury to understand and apply. This will also solve the issue of the law being a “rag bag of offences” by having them in one statute.
Issue 3 seriousness and hierarchy	The OAPA offences have been criticised for not being graded in terms of seriousness disobeying the general rule in criminal law that the men’s rea should match the Actus reus. The 2014 Paper states there is a “lack of correspondence between the external elements of the offence and the required mental element” which means D can be held liable for results that are more severe than what D intended or foresaw; this is unjust since D needs no awareness of the main ingredient of the offence. It seems unfair also that assault and battery carry a max Sentence of 6 months, whilst section 47 can carry 5 years, the only difference being the victim suffers some discomfort (Miller). It also seems wrong that section 47 and section 20 carry the same maximum sentence of 5 years, even though s20 is seen as a much more serious crime. Although the maximum sentence of s47 is rarely imposed, it seems strange that crimes of a different seriousness carry the same sentence. The gap between section 20 and section 18 could also be criticised. The jump in max sentence from 5 years to life seems questionably large, considering the only difference between the crimes is a marginally more serious men’s rea is s18. This may be justified, however, by the fact that S18 shares the Men’s Rea for murder, it is simply chance whether the person lives or dies.
Reform	Furthermore, the draft bill proposes to confront the issue of sentencing by matching the sentence to the crime, creating a fairer hierarchy. S1.1 (s18) would still have a max sentence of life. S.2.1 (s20) would rise from 5 to 7 years. S.3.1(s47) would remain at 5 years. S.4.1 would remain at 6 months with the alternative of a fine. By increasing the sentence for section 20, it shows the difference in seriousness from section 47. However, the gap between s20 and 18 remains large (7 years to life) this may require further thought.
Issue 4 Consent	Finally there remains issues with the law on non fatals in relation to consent. The 2014 Paper states its issue lie in the fact “that it depends entirely on fields of activity” and “It might be preferable to take account of factors such as degree of harm and the vulnerability of V.” Currently, there seems to be an overlap with the idea of certain moral rules accounting for what type of injury can be consented to, for example sadomaciscm as seen in R v Brown, The 2014 paper proposes that consent should be determined on the degree of harm and the vulnerability of V in relation to the occasioning injury, rather than morally wrong activities. One example is the fact that in R v Wilson, v suffered with s20 GBH from a tattoo infection but was allowed to consent, yet in R v Brown  one of the victims suffered from ABH, however this was not allowed consent to. This unfair inconsistency may lead us to question if the law should only restrict activities where pain is the primary purpose of public interest.
Reform	The Law Commission’s 2nd Consultation Paper on Consent (no. 139 1995) set out a specific definition of what Sado masochism however falling short of ABH. This could suggest that the decision in R v Brown could have been changed if the proposals were accepted. However there still seems to be the issue of moral activity playing a considerable part.
Conc	Overall, the laws on non fatals provide many flaws and reveal the possibility of it becoming outdated - the scoping paper is hope that this issue will be rendered. However its current operation reveals it should not be shunned entirely.