The non-fatal assaults are in dire need of reform.

The
non-fatal assaults are in dire need of reform. The requirements for evidence in
terms of actus reus and mens rea are complicated. For example, the requirement
of intention is open to interpretation by different people and from decisions
in cases. The Law Commission suggests that the defendant must realise that the
consequences are ‘near inevitable’ (red book), giving as an example a
situation where an ‘explosion is designed to destroy cargo in a plane mid-air
but it will inevitably kill the crew and passengers’ (red book)

 

One issue of
the act is regarding the actus reus for ABH, which is causing assault,
resulting in actual bodily harm or injury. The development of this offence has
depended greatly on the interpretation of the statute, firstly the word
‘assault’ can mean assault or battery, and secondly in giving some meaning to
‘actual bodily harm’. In the past, this has be widely interpreted, with very
little harm actually caused, but the current interpretation is found in R v
Chanhook (1994) where ‘The Court of Appeal said that the word actual indicates
that the injury should not be so trivial as to be wholly insignificant’ (red
book) Since the phrase ‘actual bodily harm’ is open to lots of interpretations,
there is an issue as to if it includes psychological harm. Many believe it does
include psychological harm but in Chanhook it was said that it does not include
‘mere emotions such as fear’ or ‘states of mind that are not themselves
evidence of some identifiable clinical conditions’ (red book).

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The
structure of the Act is complex; there is no obvious hierarchy of offences and
the differences between the most commonly prosecuted offences (under sections
18, 20 and 47) are not clearly worded. For example, section 20 (grievous bodily
harm) is seen as more serious than section 47 (assault occasioning actual
bodily harm) but the maximum penalty is the same, which is 5 years. Actual
bodily harm requires the defendant to use violence against another person,
similarly, with grievous bodily harm, the defendant must use violence however
it is the seriousness of the injury that makes it more serious. To be convicted
with GBH, the victim must be wounded which requires the breaking of the skin,
permanent disability, a broken bone or large loss of blood resulting in long
treatments. Due to the substantial difference between the level injuries
required, I think that the maximum sentence for GBH should increase to at least
7 years. I do not think that 5 years is enough to punish someone to cause their
victim a permanent disability.

 

There has
been confusion, even at the level of the House of Lords over the exact level of
mens rea required for some offences. Although a section 20 offence of malicious
wounding is viewed as more serious than the section 47 offence of assault
causing actual bodily harm, the maximum penalty is the same. The wording has
changed since the Offences Against the Person Act 1861 was originally produced,
and clarification is need to make the laws relevant to today’s society.

 

The Law
Commission recommends the ‘adoption of a modified version of the Home Office’s
1998 draft Bill’ (Ormerod, n.d.) to replace the
outdated Offences Against the Person Act 1861. The Home Office’s 1998 draft
Bill includes a hierarchy of offences of violence in clear wording, so it would
be a great improvement to the law. However, it also has similar weaknesses of
the present law: there is a huge gap between the lowest level offence (maximum
6 months) and the next one up (maximum 5 years). A lot of offences against the
person in practice involve relatively low levels of injury being caused. In
such cases, prosecutors have a choice:

 

They can charge the defendant with the lowest
level offence, which guarantees fast and cheap trial in a magistrates’
court but wouldn’t label the offender as someone who has caused actual
injury.
They can charge the defendant with an offence
which reflects the harm caused, but this risks taking the case to the
Crown Court. This is a lot more expensive, and unnecessary in the less
serious cases.

 

To get
around this problem, the Law Commission recommends ‘adding in a new
summary-only offence of aggravated assault’ (Ormerod, n.d.). This only
be a summary offence and carry a maximum sentence of 12 months. The new offence
would correctly label those who commit more than assault, since they cause
injury, but who don’t deserve a sentence of more than 12 months. Given that
currently ‘73.5% of ABH cases tried in the Crown Court result in a sentence of
12 months or under where there is a conviction’ (Ormerod, n.d.), this would
also result in colossal savings.

 

The Law
Commission suggests that assault and battery cover two different forms of
behaviour, and should be two distinct offences: ‘inflicting actual violence is
one thing; creating apprehension of imminent violence, for example, by threats,
is another’ (Tabbush,
2014).
The word “assault” should not be used as a term for both. There is in fact a
practice of charging attacks, causing minor injuries, as common assault. This prevents
the defendant from going to the Crown Court, and ensures that the case is dealt
with at the right level, this would, yet again, save a large amount of money.
However, it means that the defendant’s actions are incorrectly labelled, and
the public will feel that they will get an insufficient punishment.

 

The language
used in the OAPA 1861 is old fashioned and outdated. For example, ‘grievous’
and ‘malicious’ are not generally used in modern times and have required
interpretation by the courts. Grievous has been interpreted as meaning really
serious (DPP v
Smith) and malicious, although usually relating to evil or hatred, in legal
terms means intention or reckless. There is also no legal definition that
constitutes the difference between serious and really serious. So there is no
clear boundary between ABH and GBH it is for the jury to decide what amounts to
really serious harm and different juries will have different opinions.

 

There are further problems with misleading language used.  For
example, the word ‘assault’ makes you think of a physical attack whereas in
legal terms no physical contact is required. The use of the word ‘inflict’ has
caused the courts considerable problems.  It has been interpreted in
various ways in different cases. It was first interpreted as ‘requiring proof
of an assault or battery (R v
Clarence)’. In R v Wilson it was
stated ‘all that was required was the direct unlawful force or violence’,
however, in ‘R
v Martin the defendant was responsible where
the force was indirectly applied’. The current meaning was established in R
v Burstow as just meaning cause. (Non-fatal offences against the person – Criticisms,
n.d.).

 

 

Another criticism is the effectiveness of the offences. Many offenders
will go unpunished. Many will not be reported and many that are reported may
not be prosecuted. This has been a particular problem in the past with regards
to domestic violence. Prosecutors will generally charge under the lesser
offence in order to secure a conviction and bargain plea is often used.