Evaluation of OAPA + other non-fatal offences

The law in OAPA 1861 is outdated

• The act is over 150 years old

• When it was created there was limited understanding of mental illness so the act only referred to bodily harm

  • So was very unclear for a long time until Chan Fook and Burstow, also not mere emotions

• was limited understanding of diseases and transmission when act was created - hadn’t thought about infliction of diseases

  • Gap filled by Dica and Golding however was still unclear for a long time and injustice would have occurred

• courts have also had to make precedent on bodily adornment - BM

• law is piecemeal due to gaps so also makes it unclear

The law on non fatal offences is difficult to understand

• due to archaic language used

• malice for s18/20 defined in Cunningham but not actually needed for an offence

• There was no clear definition of Grievous until DPP v Smith - “really serious harm

• What is bodily harm? variety of cases create confusion on whether it can be diseases (Dica), mental (Burstow), cuts, hair (DPP v Michael Smith)

  • each word defined in different cases

• not clear on wounding - cut or break in continuity of the skin, what about internal bleeding or minor cuts?

• HOWEVER has become much easier to understand over time even though it is piecemeal

Unjust in regards to sentencing

• arguably very unfair

• same max sentence (5yrs) in s20 and s47 but 20 is serious harm

• s 18 is max life but has same level of harm as s20

• This goes against the correspondence principle which states that you shouldn’t be convicted of an offence unless you intended to do it - s20 is basic intent

• can’t be prosecuted for causing emotional stress/fear/panic

law on non fatal offences has lead to injustice

• long time between act passing and common law filling certain gaps

• in this time injustice may have occurred in situations such as inflicting disease (Dica) and inflicting psychological harm (Barstow, Chan Fook)

• person causing small cut can be charged with s20

  • even though there are varying levels of wound and some clearly don’t amount to really serious harm

  • Doesn’t align with correspondence principle

• s47 has same mr as assault and battery but can be given longer sentence, max 5 yrs

  • leading to people who don’t intend to cause abh can still be charged with it, unfair on D

  • However can be argued that it achieves justice for V

It is inconsistent which leads to injustice

• especially with mens rea

• s47 has same mr as assault and battery but a sentence of max 5 years when they are 6 months

  • can be argued that there’s no need for separate offences

Reform

• s18 → intentionally cause serious harm with life imprisonment

• s20 → recklessly causing serious harm with 7 years imprisonment

• s47 → intentionally or recklessly causing harm with 5 years imprisonment