LAW03: Criminal Law (Offences against the Person) Criticisms & Reform Non-fatal offences against the person.
Recommendations for reform to the non-fatal offences have been made by the Criminal Law Revision Committee and the Law Commission. Law Commission points out 3 main problems: 1. It uses complicated, obscure, old fashioned language; 2. The structure of the act is complicated; 3. Non-lawyers find the act unintelligible.
Many of the problems connected to the non-fatal offences have been resolved by judges and case law. For example, the meaning of bodily harm has been extended to include mental injury (Burstow) and HIV (Dica).
Inconsistency between offences. There are inconsistencies with regard to the mens rea of the different offences. S.47 has the same mens rea as either an assault or a battery. It does not need for the D to intend any harm and can lead to a much higher sentence. This is unjust. It is unjust that a D who causes a small cut could be charged with a s.20 rather than a s.47. S.20 refers to a wound but surely there are different degrees of wound. It is unjust that a D who only foresees the risk of a minor injury can be liable for s.18 if he is resisting arrest (Morrison). Just because he is resisting arrest this should be a s.18?
Sentencing. The inconsistencies also applies to the maximum sentences applied to the offences. For an assault or battery max sentence is 6 months. For s.47 max sentence is 5 years. But the mens rea required, the blameworthy ness of the D, is the same for all these offences. This difference in sentencing must surely be unjust.
Also the max sentence for s.47 and s.20 is the same (5 years). But the mens rea and level of injury for s.20 is much greater/more serious. Surely s.20's max sentence should be higher?
Modern understanding of 'bodily harm'. In 1861 medical knowledge was limited, particularly in terms of psychiatric illness. Why are these definitions still being used today? Judges have had to develop the law themselves concerning psychiatric illness and bodily harm in cases like Burstow and Ireland. If judges had not done this the law would have failed to protect victims of this type of 'injury'. Would it not be better if Parliament now re-wrote these offences? Judges have done something similar in relation to the transfer of disease. Again, a re-write of the law would surely be more satisfactory.
Law Commission's proposals of reform. Law Commission proposed new law to take its place in 1993. Government did nothing until 1998 when HO published a Consultation Paper which included a draft Bill that set out 4 offences that were intended to replace the non-fatal offences. Each offence had a different level of injury and a different level of mens rea or blameworthiness. The Bill clearly defined injury and made a clear distinction between physical and mental illness.
The word 'wound' is not used at all. The Bill simply incorporated a wound into the differing levels of injury without singling it out. The Bill set out a new sentencing framework. This matched the blameworthiness of the offence with an appropriate max sentence. Giving a more structured and sensible method of sentencing.
The Law Commission also defined injury. Making a distinction between physical and mental. Diseases (such as HIV) were also defined as a physical injury in connection with the most serious offence defined. This would have caused an issue as ad would not be guilty if he had recklessly transmitted HIV (meaning the present law is better in this respect). Despite this Bill subsequent Governments have done nothing more. The law is still, mainly, in an unsatisfactory state.