Scribd Logo
Upload

Welcome to Scribd!

  • 72 views

    Non-Fatal Offences Against The Person - Criticisms

    Uploaded by

    Nawazish Ali
    The document criticizes non-fatal offences against the person (NFOAPs) on three main points: the outdated and complex language used in offenses, the unclear structure and boundaries between offenses, and issues with the effectiveness of the current law. Specifically, it notes problems with ambiguous terms like "grievous" and "malicious" and differences between legal and everyday meanings of words like "assault" and "battery." It also discusses illogical differences in maximum penalties for offenses involving similar levels of harm. The Law Commission proposed replacing some sections and improving the language, structure, and effectiveness of NFOAP laws.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content

    Non-Fatal Offences Against The Person - Criticisms

    Uploaded by

    Nawazish Ali
    72 views3 pages
    The document criticizes non-fatal offences against the person (NFOAPs) on three main points: the outdated and complex language used in offenses, the unclear structure and boundaries between offenses, and issues with the effectiveness of the current law. Specifically, it notes problems with ambiguous terms like "grievous" and "malicious" and differences between legal and everyday meanings of words like "assault" and "battery." It also discusses illogical differences in maximum penalties for offenses involving similar levels of harm. The Law Commission proposed replacing some sections and improving the language, structure, and effectiveness of NFOAP laws.

    Original Description:

    Assault in Criminal Law

    Original Title

    Assault

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    The document criticizes non-fatal offences against the person (NFOAPs) on three main points: the outdated and complex language used in offenses, the unclear structure and boundaries between offenses, and issues with the effectiveness of the current law. Specifically, it notes problems with ambiguous terms like "grievous" and "malicious" and differences between legal and everyday meanings of words like "assault" and "battery." It also discusses illogical differences in maximum penalties for offenses involving similar levels of harm. The Law Commission proposed replacing some sections and improving the language, structure, and effectiveness of NFOAP laws.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as docx, pdf, or txt
    72 views3 pages

    Non-Fatal Offences Against The Person - Criticisms

    Uploaded by

    Nawazish Ali
    The document criticizes non-fatal offences against the person (NFOAPs) on three main points: the outdated and complex language used in offenses, the unclear structure and boundaries between offenses, and issues with the effectiveness of the current law. Specifically, it notes problems with ambiguous terms like "grievous" and "malicious" and differences between legal and everyday meanings of words like "assault" and "battery." It also discusses illogical differences in maximum penalties for offenses involving similar levels of harm. The Law Commission proposed replacing some sections and improving the language, structure, and effectiveness of NFOAP laws.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as docx, pdf, or txt
    of 3

    Non-fatal offences against the person - Criticisms

     The Law Commission in Legislating the Criminal Code: Offences


    Against the Person and General Principles criticised NFOAPs on
    three main issues: firstly the language used is complicated, obscure
    and out dated, secondly the structure of the offences and thirdly the
    Law Commission was critical of the effectiveness of the current law on
    NFOAPs. The Law Commission proposed to repeal Ss 18, 20 & 47 and
    replace them with new provisions.

     The Language used in the OAPA 1861 is no doubt out dated. For
    example the words ‘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), however, malicious has been given an interpretation quite
    unrelated to what one might expect. In general parlance the word
    malicious is perhaps related to evil or hatred whereas in legal terms
    malicious means intention or reckless.

     There exist further problems with misleading language used. For


    example, in every day usage, the word ‘assault’ generally conjures up
    an image of physical attack whereas in legal terms no physical contact
    is required.

     The term ‘battery’ in general usage suggests a higher level of force


    than is actually required by law. The use of the word bodily harm
    under s.18, 20 and 47 includes psychiatric harm according to R
    v Ireland, R v Burstow & R v Constanza yet it is highly unlikely the
    Victorian Draftsmen would have had this type of harm in mind.

     Use of the word ‘inflict’ has caused the courts considerable problems.
    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 application of force, however, in R v Martin the defendant was
    liable where the force was indirectly applied. The current meaning was
    established in R v Burstow as simply meaning cause.
     The structure of the offences can also be criticised. There is no
    statutory definition of assault or battery and there are no clear
    boundaries between the offences.

     Any intentional touching of another without consent will amount to a


    battery (Faulkner v Talbot) whereas any hurt or injury calculated to
    interfere with the comfort of the victim amounts to ABH (R v Miller).
    There seems little difference between the two other than interference
    with comfort, yet battery carries a maximum penalty of 6 months
    whereas for ABH it is 5 years.

     Similarly 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 differ in their opinions.

     ABH and GBH can have very different levels of severity of injury and
    yet an offence of GBH under s.20 carries the same max penalty as an
    offence of ABH under s.47. Yet for GBH the punishment jumps from 5
    years to life for an offence under s.18 which could involve the same
    injury as an offence under s.20.

     It is illogical to have a separate offence of wounding which is


    considered alongside GBH. A breaking of the 7 layers of the skin
    constitutes a wound (Moriarty v Brookes). Thus a pin prick could
    suffice which is clearly far removed from really serious harm.

     A further criticism is the effectiveness of the offences. Many NFOAPs


    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
    plea bargaining is often used.

     Also there is a practice in some areas of not prosecuting assault and


    battery as the costs involved outweigh the benefits
    Lecture outlines on the individual offences can be found here:

     Assault
     battery
     ABH
     GBH & Wounding

    You might also like