A level law unit 3 urgent help needed critique essayWatch
In November 2015, the Law Commission publsihed their most recent law report on non-fatal offences where they clearly indicated that the current law on non-fatal offences is ripe for reform.
One such criticism of this area of law is that much of the vocabulary dates back to the times of Queen Victoria and is often archaic and misleading. The word assault is commonly understood to mean physical attack and yet the law defines it as the apprehension of a physical attack. However, the offence found in S.47 OAPA 1861, although requiring an assault more often than not involves a battery.
The word maliciously indicates something done viciously or with evil intent but, for the purposes of s.20 OAPA, it is interpreted to mean intent or recklessness as to causing some harm. Additionally, the offence in s.18 OAPA uses the word malicious but this means nothing here as the mens rea is already defined as intent to cause serious injury or resist arrest.
Criticisms are also made of the hierarchy of the non-fatal offences. The first anomaly is the comparison between assault and battery and the offence assault occasioning actual bodily harm. Both assault and battery carry a maximum sentence of six months imprisonment while s.47 carries a maximum sentence of five years yet, the only difference according to the courts in Chan Fook is causing discomfort to the victim.
Another anomaly is the comparison between s.47 and s.20. Both the mens rea and actus reus of s.20 are defined as more serious than those of s.47 and yet both of the offences carry the same maximum sentence of five years imprisonment.
The Report also makes specific criticisms of the actus reus and mens rea of certain offences. The term bodily harm in s.47, s.20 and s.18 has also been developed by the courts to include psychiatric harm. This is because such injury wouldn't have been considered when the Act was drafted.
While the fact that the courts can develop the law in line with scientific advances and changing social attitudes can be seen as a strength, it is still a phrase that is potentially misleading.
Wound is a word found in s.20 and s.18. It is an injury sufficient for a maximum custodial sentence of fiv years or for life imprisonment in more serious offences. This seems illogical as the injury, at least according to the definition of a penetration of both layers of the skin in Eisenhower, could be something as insignificant as a paper cut.
Critical comment can also be made of the mens rea of a number of non-fatal offences. The principle of constructive intent and the lack of correspondence in the offences of s.20 and s.47 have lead to the Law Commission to comment on the 'lack of coherence between the consequences for which the accused is punished and the mental state that is sufficient for his conviction. They are referring to the fact that the degree of fault attributed to the defendant does not always equate to their state of mind at the time of the alleged offence. For example, the offence of s.20 requires the victim to suffer serious harm or a wound and yet the defendant need only foresee some harm been a consequence of their actions.
The current Law Commission Report of 2015 proposed to scrap all the existing offences and replace them with more specific offences. The purposes of these new offences is to creat a more coherent structure both through simplifying the language used in the description of the offences and through a clearer sentencing hierarchy.
For example, the use of physical assault and threatened assault will help the lay person to distinguish between battery and assault. Those offences retain the maximum sentence of six months but a new offence of aggravated assault, similar to the offence of section 47, is proposed in order to bridge the current sentencing gap between common assault and section 47 with a new maximum sentence of 12 months.
A distinction is also drawn between causing serious injury and injury so that intentionally or recklessly causing injury would attract a maximum of a five year sentence whereas recklessly causing serious injury would attract a maximum of a 7 year sentence. Further, wounding will now only be relevant to the most serious offences where the wound itself is a serious injury.
The new proposals seek to apply the correspondence principle so that the mens rea in s.47 and s.20 should match the actus reus of the respective offences. The proposals appear to be successful in this to the extent of the creation of the new offences of intentionally or recklessly causing injury. However, the new offences of aggravated assault would remain problematic in that it is committed where injury is caused regardless of whether there was any intention or foresight in relation to such injury.
Therefore, to a large extent, the proposed reforms will address the criticisms identified and it now remains to be seen whether they will be implemented by Parliament.