AQA A level Law Assessment on Law on Nonfatal Offences
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Assessment on law on Non-Fatal Offences Against the Person How to write: A) Briefly outline relevant current law B) Discuss strengths and weaknesses C) Identify proposals for reform D) Discuss how these reforms would improve the law a) : b) Strengths Weaknesses Of Clarity Meaning of assault in s47 OAPA 1861 consistently interpreted to mean assault or battery The vocabulary (e.g. OAPA1861 ‘maliciously’, ‘grievous’) is old fashioned and sometimes confusing The House of Lords decision in R v Savage – mens rea is clear – intent/recklessness for initial assault, but not for the harm The meaning of assault if ambiguous and has a narrow technical meaning – ‘Victim apprehends immediate unlawful personal violence’ but broad meaning in s47 – meaning assault or battery. The conflict between ‘inflict’(s20) and ‘cause’ (s18) has been resolved. Inflict = Cause. There is no logic in the numbering of offences in OAPA Of the Development S18 and 20 contain two separate offences (wound and gbh). Wounding can be relatively minor and yet s18/20 very serious offence. Battery has been developed to include indirect batteries (Haystead) & omissions (Santa- Bermudez) The sentencing is illogical – s47 & 20 have the same maximum sentence for two very different offences, and even though in practice judges give heavier sentences for s20 this should be layed out clearer Abh adapted to deal with new/rare circumstances – e.g. psychiatric It is uncertain whether consent is a defence or merely an element of
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Transcript of AQA A level Law Assessment on Law on Nonfatal Offences
Assessment on law on Non-Fatal Offences Against the Person
How to write:
A) Briefly outline relevant current lawB) Discuss strengths and weaknessesC) Identify proposals for reformD) Discuss how these reforms would improve the law
a) :
b)
Strengths WeaknessesOf ClarityMeaning of assault in s47 OAPA 1861 consistently interpreted to mean assault or battery
The vocabulary (e.g. OAPA1861 ‘maliciously’, ‘grievous’) is old fashioned and sometimes confusing
The House of Lords decision in R v Savage – mens rea is clear – intent/recklessness for initial assault, but not for the harm
The meaning of assault if ambiguous and has a narrow technical meaning – ‘Victim apprehends immediate unlawful personal violence’ but broad meaning in s47 – meaning assault or battery.
The conflict between ‘inflict’(s20) and ‘cause’ (s18) has been resolved. Inflict = Cause.
There is no logic in the numbering of offences in OAPA
Of the Development S18 and 20 contain two separate offences (wound and gbh). Wounding can be relatively minor and yet s18/20 very serious offence.
Battery has been developed to include indirect batteries (Haystead) & omissions (Santa-Bermudez)
The sentencing is illogical – s47 & 20 have the same maximum sentence for two very different offences, and even though in practice judges give heavier sentences for s20 this should be layed out clearer
Abh adapted to deal with new/rare circumstances – e.g. psychiatric harm (chan-fook) and hair (DPPvSmith)
It is uncertain whether consent is a defence or merely an element of the offence itself – even judges disagree (Lords Jauncey,Templeman and Lowry say defence, Lords Mustill and Slynn as a factor negativing the actus reus.
GBH has developed to meet new circumstances, inc serious psychiatric harm (Burstow) and serious biological harm (Dica)
Mens rea for s18 can be recklessness when resisting arrest (Morrison). This appears harsh as s18 is a very serious offence whereas recklessness is a low level of mens rea.
The actus reus of gbh recognizes age of the victim as a relevant factor (Bollom) and the possible cumulative effect of a series of minor injuries (Brown & Stratton)
S20 uses ‘inflicting’ for gbh, s18 ‘causing’. Although in both Wilson and Burstow it was decided that there was no difference this can still be confusing.
C) Law commissions report no. 218 proposed 4 new offences.
1. Replace assault & battery with a single new offence of assault that includes both elements (ie adopting the broader definition of assault in s47)
2. Replace s47 abh with the offence of intentional or reckless injury, with the mens rea needed for the injury caused.
3. Replace s20 with reckless serious injury. Mens rea (recklessness) needed for the serious injury.
4. Replace s18 with intentional serious injury. Resisting arrest disappears.
The Law commission also notes that it would abolish the offence of ‘wounding’, and would place any wound in part b) c) or d) depending on the seriousness of the injury and mens rea.
