Recommendations for reform has been made by both the Criminal Law Revision Committee and the Law Commission. The Law Commission has pointed out three major problems with the Offences Against the Person Act 1961. These are:
- Using obscure and old-fashioned language. Words such as ‘maliciously’ and ‘grievous’.
- The structure of the Act is complicated.
- Non-lawyers find the Act completely unintelligible.
Some of these problems have been resolved by the courts. Debate on the meaning of ‘inflict’ in s20 on whether a technical assault was needed came to an end in Burstow (1998) which said that it did not need technical assault. The courts have also extended the meaning of ‘bodily harm’ to mental health so defendants causing such injury can be convicted.
Other problems include the inconsistency between offences. In s47 the mens rea for assault and battery are the same. This means that D can be convicted even though he did not intend or realize any risk of injury. This appears unjust. It is also unjust that a person causing a small cut (breakage of the skin - Eisenhower) can be charged with s20 as there are clearly different levels of wound and many of them do not equate to serious bodily harm. It is also unfair for D who only intends to resist arrest to be convicted of GBH under s18 even though only a small wound is caused. The level of blameworthiness is simply not the same who only intends to resist arrest and someone who intends and causes severe injuries.
The inconsistencies also lie in sentencing. For an assault or battery the maximum sentence is six months imprisonment whereas it is 5 years for s47 despite the fact that the mens rea of these two offences are the same. To have such a big difference is unjust. As for s20, it also has a maximum sentence of five years. However, when we look at the mens rea and degree of damage of these two offences, s20 is much more serious. For s47 it is only intention or recklessness as to assault or battery and the level of injury is actual bodily harm. For s20 the mens rea is intention or recklessness as to whether some harm is inflicted, while the level of injury is GBH or wound, which is both higher than those of s47 and they still have the same maximum sentence. It could be argued that this is so that people who get off on s20 like Savage (1991) because intention or recklessness as to damage cannot be proven. However, it would be a better idea to actually have another offence for this and reduce the maximum sentence for s47.
Offences use the term ‘bodily harm’, which meant only harm to the body the act was pass 150 but now, because of medical development and better understanding judges have included psychiatric harm to its meaning (Ireland, Burstow). It has been suggested that it would be better if the law was rewritten to say this. The same case applies to transmission of disease where judges have made defendants liable for transmitting HIV and such diseases.
The Law Comission proposed a new law in 1993 to replace the OAPA 1861 but it was until 1998 that it was made a Bill in parliament. This included a draft bill that set out four main offences to replace s47, 20 and 18 of the OAPA 1861. They are:
- Intentional serious injury.
- Reckless serious injury.
- Intentional or reckless injury.
- Assault
The mens rea of each offence is made clear by the wording of the draft Bill, and injury means both physical and mental damage. Transmission of disease is classified as physical damage. However, this would make it virtually impossible to convict anyone of transmitting HIV with intent like Dica because it is mostly reckless. The removal of the word ‘wounding’ ensures a just sentence to different degrees of cuts and wounds which would solve many current problems in the law. The draft Bill also sets out new sentencing framework that gives a maximum sentence that matches the blameworthiness of the act in a more structured and sensible way. However, since the government has not done anything about this the law is still in an unsatisfactory state.
No comments:
Post a Comment