Critical evaulation
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1
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Non-fatal offences against the person.
__**Point 1: Offences are not classified in a coherent way.**__
* No clear principles in the Act and some relate to narrow or complete situations. E.g. s18 can be committed in 4 quite different ways.
* Why distinguish ‘wounding’ and ‘GBH’ when surely the issue is whether the injury is serious or not?
* s18 also includes resisting arrest within its definition. Surely this should be a separate offence?
* The offences are not classified in hierarchy of seriousness, the same maximum punishment for s27 and s20.(5 years)
\
__**Point 2: The offences are now used in different ways from what the definitions suggest.**__
* It is arguable that in reality these offences are undercharged by the CPS and practise does not reflect what is in the Act.
* A wound that is not major can be charged as s20 but is generally charged as s47.
* Attacks that cause minor injury legally amount to s47 but in practise are charged as common assault.
* Also the way in which the common law has had to amend what the Act means- ‘reckless’ and HIV cases.(Dica)
* \
Point 4:The Language is often archaic and obscure (and confusing)
* ‘Grievous’, ‘detainer’ are used which are not common words today.
* ‘felony’,misdemeanour’ and ‘penal servitude’, all used in the Act are not words in usage today.
* The Act fails to mention the sentence for some important offences (s20 and s47)
* the words ‘causing’, ‘inflicting’ and ‘occasioning’ are all used to mean the same hing. Why?
* The Act uses the word ‘assault’ when it means ‘battery’!
\
Reform proposals:
* Home Office Draft Bill 1998 used by LC as its basis:
* Replace the outdated legislation OAPA 1861 with modern, clear and logical legislation.
* Create a new offence of aggravated assault to bridge the gap between common assault and ABH.
* Extend the offence of threats to include threats to cause serious injury and commit rape.
* No clear principles in the Act and some relate to narrow or complete situations. E.g. s18 can be committed in 4 quite different ways.
* Why distinguish ‘wounding’ and ‘GBH’ when surely the issue is whether the injury is serious or not?
* s18 also includes resisting arrest within its definition. Surely this should be a separate offence?
* The offences are not classified in hierarchy of seriousness, the same maximum punishment for s27 and s20.(5 years)
\
__**Point 2: The offences are now used in different ways from what the definitions suggest.**__
* It is arguable that in reality these offences are undercharged by the CPS and practise does not reflect what is in the Act.
* A wound that is not major can be charged as s20 but is generally charged as s47.
* Attacks that cause minor injury legally amount to s47 but in practise are charged as common assault.
* Also the way in which the common law has had to amend what the Act means- ‘reckless’ and HIV cases.(Dica)
* \
Point 4:The Language is often archaic and obscure (and confusing)
* ‘Grievous’, ‘detainer’ are used which are not common words today.
* ‘felony’,misdemeanour’ and ‘penal servitude’, all used in the Act are not words in usage today.
* The Act fails to mention the sentence for some important offences (s20 and s47)
* the words ‘causing’, ‘inflicting’ and ‘occasioning’ are all used to mean the same hing. Why?
* The Act uses the word ‘assault’ when it means ‘battery’!
\
Reform proposals:
* Home Office Draft Bill 1998 used by LC as its basis:
* Replace the outdated legislation OAPA 1861 with modern, clear and logical legislation.
* Create a new offence of aggravated assault to bridge the gap between common assault and ABH.
* Extend the offence of threats to include threats to cause serious injury and commit rape.
2
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Intoxication
The common law defence of intoxication has evolved by a case by cases basis and so is arguably fit for purpose.
Legal principle suggests that there should be a defence for those who commit crimes when their thinking is impaired due to alcohol, drugs or other substances.
For public policy reasons the defence is restrictive or it would b an easy excuse for criminals.
There are complicated devisions in law which cause problems, such as between crimes of specific and basic intent in voluntary intoxication.
Arguably intoxication is not a true defence as it applies if the defendant has no mens rea so one of the basic elements of the crime is missing. Critics want reform but this hasn’t happened.
\
Voluntary intoxication is where the D chooses to be in that position. Case of Sheean and Moore says s drunken intent is still an intent.
For crimes of specific intent crimes such as murder, theft or s18 OAPA 1861, intoxication drops liability to lesser offence.
Critics say this doe snot help much as a few crimes require specific intent.
Theft is problematic as there are no fall back offences to drop down to, making the law inconsistent and in need for reform.
\
If the crime is on of basic intent, the law is clear and there is no defence, as in Majewski where a combination of drink and drugs led M to committing several different basic intent offences.
Recklessness was enough mens rea and M had voluntarily taken drink and drugs over a 24hr period.
As more crimes are satisfied by recklessness the defence meets public policy on being tight.
However critics say the law needs reform as it is not fair to punish those who do the actus reus without the key element that allocates blame and justifies punishment.
It is also problematic that intoxication may have occurred sometime before the offence, when there was no thought of commission which is unjust.
\
If intoxication is used to courage to commit the crime this is dutch courage and is no defence, as in Gallagher, which works well.
\
Involuntary intoxication occurs through no fault of the D, making it very tight to succeed with.
There must be no awareness of intoxication, which cane be hard to prove.
The case of kingston show inconsistency. At his trial K said he had been involuntarily intoxicated as his drink was spike. He was convicted of his assault as intentional because a drunken intent is still intent.
It was said he should have a defence as he was unaware but then the House ofLords said restored his conviction making public policy key.
Shows different levels of court can have different opinions.
\
The key case of Hardie raised involuntary intoxication at his trial but was convicted for voluntarily taking parters valium tablet.
CA allowed his appeal saying intoxication was involuntary as he expected the tablets to calm him as would a reasonable person.
However it was reckless to take someone else’s medication.
\
\
REFORM
Butler Committee recommended an offence of dangerous intoxication while others say intoxication should be no defence and dealt with in sentencing.
There is no drive for reform because of Parliaments inertia.
Alcohol is expensive on the NHS but it brings in a lot of revenue by taxes and licensing industry has good lobbying powers.
Judiciary have only commented on the law a few ties saying that is reform is to be done then Parliament should be involved.
In conclusion the law probably needs reform but it unlikely.
Legal principle suggests that there should be a defence for those who commit crimes when their thinking is impaired due to alcohol, drugs or other substances.
For public policy reasons the defence is restrictive or it would b an easy excuse for criminals.
There are complicated devisions in law which cause problems, such as between crimes of specific and basic intent in voluntary intoxication.
Arguably intoxication is not a true defence as it applies if the defendant has no mens rea so one of the basic elements of the crime is missing. Critics want reform but this hasn’t happened.
\
Voluntary intoxication is where the D chooses to be in that position. Case of Sheean and Moore says s drunken intent is still an intent.
For crimes of specific intent crimes such as murder, theft or s18 OAPA 1861, intoxication drops liability to lesser offence.
Critics say this doe snot help much as a few crimes require specific intent.
Theft is problematic as there are no fall back offences to drop down to, making the law inconsistent and in need for reform.
\
If the crime is on of basic intent, the law is clear and there is no defence, as in Majewski where a combination of drink and drugs led M to committing several different basic intent offences.
Recklessness was enough mens rea and M had voluntarily taken drink and drugs over a 24hr period.
As more crimes are satisfied by recklessness the defence meets public policy on being tight.
However critics say the law needs reform as it is not fair to punish those who do the actus reus without the key element that allocates blame and justifies punishment.
It is also problematic that intoxication may have occurred sometime before the offence, when there was no thought of commission which is unjust.
\
If intoxication is used to courage to commit the crime this is dutch courage and is no defence, as in Gallagher, which works well.
\
Involuntary intoxication occurs through no fault of the D, making it very tight to succeed with.
There must be no awareness of intoxication, which cane be hard to prove.
The case of kingston show inconsistency. At his trial K said he had been involuntarily intoxicated as his drink was spike. He was convicted of his assault as intentional because a drunken intent is still intent.
It was said he should have a defence as he was unaware but then the House ofLords said restored his conviction making public policy key.
Shows different levels of court can have different opinions.
\
The key case of Hardie raised involuntary intoxication at his trial but was convicted for voluntarily taking parters valium tablet.
CA allowed his appeal saying intoxication was involuntary as he expected the tablets to calm him as would a reasonable person.
However it was reckless to take someone else’s medication.
\
\
REFORM
Butler Committee recommended an offence of dangerous intoxication while others say intoxication should be no defence and dealt with in sentencing.
There is no drive for reform because of Parliaments inertia.
Alcohol is expensive on the NHS but it brings in a lot of revenue by taxes and licensing industry has good lobbying powers.
Judiciary have only commented on the law a few ties saying that is reform is to be done then Parliament should be involved.
In conclusion the law probably needs reform but it unlikely.
3
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Self-defence
Point 1: Was the force necessary?
* The law states that belief does not have to be reasonable as long as it is genuine, however the less reasonable the belief the less likely the jury will deem it ‘genuine’ though in most situations this standard is not an issue.
* However, a belief could be extremely unreasonable, yet still considered genuine and thus accepted as the basis upon which to judge D.
\
Point 2: Excessive force
This is a key issue a is especially a problem for offences such a murder, due to the ‘all or nothing’ nature of the defence . The cases of Clegg and Martin demonstrate where excessive force was used and therefore the judge had no choice except impose a life sentence. This issue has been addressed in relation to murder in the Coroners and Justice Act 2009- with the introduction of ‘loss of control’ which allows in murder cases effectively excessive self-defence (rather than revenge) to reduce any conviction to manslaughter
\
Point 3: Relevance of D’s characteristics
If the defendant has any mental illness or even can show psychiatric evidence that means they perceive danger situations greater than a normal person this will not be considered by the court when analysing reasonable force. It also presents a challenging when deciding about their genuine belief as its likely to be unreasonable for the jury but even if they do find the belief genuine it likely to fail on whether the level of force was proportionate. Remember Martin and his paranoia.
\
Reforms:
To change the name of self defence to LEGITIMATE DEFENCE to underline two principles:
a) a person is justified in using force against an unlawful attack in certain situations
b) the defence applies not just to protect the person themselves but also other people, such as their family, and to protect their home, as the word ‘self’ can be seen as misleading
1.
The test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person
* The law states that belief does not have to be reasonable as long as it is genuine, however the less reasonable the belief the less likely the jury will deem it ‘genuine’ though in most situations this standard is not an issue.
* However, a belief could be extremely unreasonable, yet still considered genuine and thus accepted as the basis upon which to judge D.
\
Point 2: Excessive force
This is a key issue a is especially a problem for offences such a murder, due to the ‘all or nothing’ nature of the defence . The cases of Clegg and Martin demonstrate where excessive force was used and therefore the judge had no choice except impose a life sentence. This issue has been addressed in relation to murder in the Coroners and Justice Act 2009- with the introduction of ‘loss of control’ which allows in murder cases effectively excessive self-defence (rather than revenge) to reduce any conviction to manslaughter
\
Point 3: Relevance of D’s characteristics
If the defendant has any mental illness or even can show psychiatric evidence that means they perceive danger situations greater than a normal person this will not be considered by the court when analysing reasonable force. It also presents a challenging when deciding about their genuine belief as its likely to be unreasonable for the jury but even if they do find the belief genuine it likely to fail on whether the level of force was proportionate. Remember Martin and his paranoia.
\
Reforms:
To change the name of self defence to LEGITIMATE DEFENCE to underline two principles:
a) a person is justified in using force against an unlawful attack in certain situations
b) the defence applies not just to protect the person themselves but also other people, such as their family, and to protect their home, as the word ‘self’ can be seen as misleading
1.
The test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person
4
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Consent
Summary defence:
* Consent must be real
* You cannot consent to being injured
* There are exceptions to this rule in sport and medicine
* Common law defence, no statute
\
Point 1: Issues with “true” consent
* Especially in rape cases, it is hard to determine whether consent was actually given.
* 5.6 law commission report exposes the issue of consent and rape; \*“the essential proof for the act of rape is that the victim did not consent to intercourse…in our judgement this exposes the fallacy of submission that there can be rape by fraud or false pretences.”\*
\
Point2: consent gained by fraud
* With regards to consent gained by fraud as in Richardson, the consent to a dentist that was no longer practising was legal. However the case of Brown shows genuine consent that was deemed illegal. Hard to follow the legal logic with these decisions.
* Fraud and what one is actually consenting to. McNally.
\
Point3: Lack of clarity in the law
* The fact that consent is a common law defence, with no statutory grounding means the case law definition of words are not always appropriate in all situations which makes the law unclear and seem unfair. An example can be taken from consent within sports. The law intervenes where conduct goes “beyond the potential risk” of that sport – Barnes. Potential risk differs in all sport, and it is hard to identify what “potential risks” are. This too undermines the principle of not consenting to being injured.
Also the fact it depends on whether or not a complaint is made (e.g Ben Flower)
\
Reform:
* To make the law clearer, a statute could be passed outlining the definition of “real consent”, so that the law is clarified. This would make decisions consistent and applicable to all cases.
Law Commission report:
* 1994 – consultation paper on offences against the person, the view was discussed that a person’s body was their own, and \*“the law had no place in deciding what can be done with it”\*
* Later, in the same consultation paper, agreed the law should set limits to *“the injury to which a person may consent to”.* This modified the previous approach where the Commission highlighted that total bodily freedom would allow people to take drugs without legal repercussions.
* The Commission has stated that in sexual offences, the recommendation for consent was *“subsisting, free and genuine agreement should count as consent to a sexual act by another.”*
* The 1994 consultation paper allows certain categories to be exempt from the limitations the paper made. This includes ear-piercing, tattooing and religious rituals.
* \
* Consent must be real
* You cannot consent to being injured
* There are exceptions to this rule in sport and medicine
* Common law defence, no statute
\
Point 1: Issues with “true” consent
* Especially in rape cases, it is hard to determine whether consent was actually given.
* 5.6 law commission report exposes the issue of consent and rape; \*“the essential proof for the act of rape is that the victim did not consent to intercourse…in our judgement this exposes the fallacy of submission that there can be rape by fraud or false pretences.”\*
\
Point2: consent gained by fraud
* With regards to consent gained by fraud as in Richardson, the consent to a dentist that was no longer practising was legal. However the case of Brown shows genuine consent that was deemed illegal. Hard to follow the legal logic with these decisions.
* Fraud and what one is actually consenting to. McNally.
\
Point3: Lack of clarity in the law
* The fact that consent is a common law defence, with no statutory grounding means the case law definition of words are not always appropriate in all situations which makes the law unclear and seem unfair. An example can be taken from consent within sports. The law intervenes where conduct goes “beyond the potential risk” of that sport – Barnes. Potential risk differs in all sport, and it is hard to identify what “potential risks” are. This too undermines the principle of not consenting to being injured.
Also the fact it depends on whether or not a complaint is made (e.g Ben Flower)
\
Reform:
* To make the law clearer, a statute could be passed outlining the definition of “real consent”, so that the law is clarified. This would make decisions consistent and applicable to all cases.
Law Commission report:
* 1994 – consultation paper on offences against the person, the view was discussed that a person’s body was their own, and \*“the law had no place in deciding what can be done with it”\*
* Later, in the same consultation paper, agreed the law should set limits to *“the injury to which a person may consent to”.* This modified the previous approach where the Commission highlighted that total bodily freedom would allow people to take drugs without legal repercussions.
* The Commission has stated that in sexual offences, the recommendation for consent was *“subsisting, free and genuine agreement should count as consent to a sexual act by another.”*
* The 1994 consultation paper allows certain categories to be exempt from the limitations the paper made. This includes ear-piercing, tattooing and religious rituals.
* \