non-fatal

the law on non-fatal offences is found in the OAPA 1861 and in the common law, it is not a coherent whole. the OAPA 1861 is widley recognised as being outdated as it follows a victorian legislative approach of listing separate offences for individual factual scenarios, many of which are no longer necessary. there have been frequent amendments for the 150 years the OAPA 1861 has been in force, leaving it in a confusing and incoherent state with more provisions repealed than are currently in force.

the offence against the person act 1861 has outlived its usefulness; it should be reformed. The law on non-fatal offences is an incoherent whole as it is common law statue, it is also outdated, The act is over 150 years old. This has created problems. People did not have the understanding of mental health problems that we have today. The act previously only referred to bodily harm, not mental harm, so for a long time it was not clear whether the offence could include those where victim had suffered mental harm. However, Chan good and Burstow have now filled this gap. ABH could embrace recognised psychiatric harm, but does not include mere emotions such as fear or distress nor panic and it but it. can include serious depression.

The rulings about the criminalisation of the spread of sexual diseases can be criticised. in 1861 there was only limited understanding of how diseases can be transmitted from person to person. However this gap has now been filled by the ruling in Dica, golden and yaser that infecting someone with HIv or genital herpes could come within the wording of inflicting GBH. on the other hand, this can be considered to be unfair as some individuals might not be aware that they have a disease and can still be found guilty.

the law on non-fatal offences can be criticised as there are inconsistencies in the structure and sentence for the different offence. there are inconsistencies, especially with regard to the MR required for each offence, S47 has the same MR as common assault. it doesn’t require any realisation of risk of injury. For example, in R v Savage it was held that the D did not need to foresee the level of injury. this appears unjust as S.47 carries a much higher sentence 5 years for s.47 while Assualt and battery carry 6 months. it is therefore unjust that the sentence is the same when the blame worthy is so different. in addition, the maximum sentence for both s.47 and s.20 is the same. it is also unjust that a person who causes a small cut can be charged with s.20 is the same. this is because S.20 refers to a wound or GBH, yet there is no distinction between the seriousness of the wound. Yet S.20 is for more serious than s.47. there is also no need for any intention with s.47

The language used in OAPA 1861 is misleading in places. S.20 uses the word ‘inflict’ yet s.18 uses ‘cause’ this led to considerable debate as to whether ‘inflict’ meant a technical assault, this was interpreted widely as in lewis a wife was so frighted of her husband that she jumped through a window and broke both of her legs. the threats he made to her were held to be a technical assault. However, in Burstow it was decided that ‘ inflict’ does not now require a technical assault or battery. it need only be shown that the D’s actions have led to the consequecnces of the V suffering GBh. yet under the 1861 Act it has been held to mean that the D either intended to do the type of crime or was reckless as to whether that type of harm occured.

offences like s.47 OAPA 1861 and s.20 OAPA 1861 do not comply with the correspondence principle. under the correspondence principle’ the results which defendant must intend or foresee should match the results which actually occur. under S.2 OAPA 1861 defendant can be guilty of a S.20 off without intending or being reckless as to causing serious injury. Equally defendant can be guilty of a S.47 offence without intending or being reckless as to causing any harm. D should not be held liable for a given kind of level of harm unless he meant to do it or at least knowingly ran the risk of it. Both of these are clear breaches of the correspondence principle.

in conclusion, non-fatal offences are in need of reform due to outdated language, inconsistencies between offences and the law its self being out of date not just the language.