Non-fatal a Victorian legislation that brought all applicable
Non-fatal offences against the person is a crime which means
to take offence in form as an attack against another person which doesn’t
result in death. The essay is based around the Offence Against a Person Act
OAPA 1861 is a Victorian legislation that brought all
applicable laws together into one act called the consolidation act rather than
being a logical set of rules. The language which is used in the non-fatal
offence act is outdated, in R v Burstow the defendant’s psychiatric illness
wouldn’t have been considered by the Victorian legislator according to Lord
Steyn but illnesses affecting the mind are now established as an area of
medical health and this needs to be reflected by the legislator. However,
judges have discovered ways to establish liability for psychiatric harm in
cases of stalking such as R v Constanza nevertheless the liberal understandings
they wrote in the wording of GBH in the act to attain this has caused a lot of
criticism. This section of the law has now been changed because stalkers are
now eligible to be prosecuted under the Protection from harassment Act 1997
which is different to the OAPA 1861, a necessary development in this section of
the rising widespread behaviour of the criminals.
The meaning of assault has been criticised due to it covering
a large amount of injuries from the meaning of the word alone. For example, in
Ireland to the misunderstanding of use in s47 ABH, where the meaning of what it
actually means, either battery or assault, in cases such as R v Savage. S47 of
the OAPA 1861 only utilises the word ‘assault’ even though the injury is meant
to cover battery. The public law offence of Common Assault adds to this out
dated and complicated system of non-fatal offences by needing cases that go
back hundreds of years to understand the law. For example, the problems when a
dismissal of an assault case is that it needs research put in to it using the
case Tuberville v Savage which is a 300 year old case which only has very
little similarities to modern day situations that could occur, in this
situation somebody drawing a sword.
Section 39 of the Criminal Justice Act 1988 and the ss47, 20
and 18 were not made to work as an intelligible hierarchy of offences.
Therefore, there is no logical sentencing organisation that replicates the
importance of each crime, this is known as the ladder principle. An example of
this is exposed with s39 of the Criminal Justice Act 1988 and the s47 since the
limit of harm that can qualify for ABH is very low. In cases of ABH, lower
level of s47 and criminals charged under s39 of the Criminal Justice Act 1988
are comparable but the individual sentences of five years and six months don’t
follow a clear ladder of importance and can be seen as unfair.
The meaning of Bodily Harm has also stirred up some
controversy and criticism due to it being used s47, s20 and s18 but it has no
statutory meaning. The courts have to translate the expression a lot so they
can cover matters which are usually beyond the Victorian Legislators’ opinion.
The connotation of wounding is not yet set out in the act and
case that the law has provided which is that both layers of the skin need to be
broken, R v Eisenhower. However, this doesn’t match the universal understanding
of the word and this means that an individual who can be charged under s20 due
to wounding somebody even if they only just prick the victims finger with a
pin. Nevertheless, the charging standard encourages that minor injuries such as
small cuts should be charged under s47 as it seems more appropriate. CPS are
recommendations for prosecutors but they aren’t legally obligatory in courts.
When the charge is set, the courts will choose the case in agreement with
statutes and case authorities which could possibly lead to serious offences for
wounds that are minor.
Law reform would be desirable to what is implied by damage.
The Home office draft bill in 1998 characterised damage to incorporate physical
and mental damage with definitions and a substantially closer connection to
therapeutic definitions, instantly enhancing the feedback on the utilisation of
out of date dialect for an effectively comprehended word that has clear limits.
However, the change suggested means that only genuine damage can be conferred
through transmitting an infection, and it isn’t clear what illnesses would be
incorporated, so even the changes proposed needs logic in a few areas.
The issue of inflict in S20 has also instigated regular disapproval from
the same outset of the act and whether this meant something considerably
different from cause in S18. At its thinnest understanding in R v Clarence
(1888) ‘inflict’ was assumed to need an assault or battery needing the
application of direct force. In this case the court held that the offender had
not caused grievous bodily harm on his wife when he infected her with
gonorrhoea on the foundation that her permission to sexual intercourse meant that
there was no battery. In other cases the courts had taken a much broader view
of the term inflict meaning there was no need to show a claim of direct force.
In the case of R v Martin (1889) the court held that the defendant yelling “fire”
in a theatre when he had locked all the exits was an infliction of GBH on the
victims who were seriously injured in the situation. The definition of inflict
was finally decided in R v Ireland (1997), where the House of Lords ruled that
there was no need to apply direct or indirect force. Nonetheless, even though
the problem is now resolved there has been a substantial amount of cases up to
1997 where the problem has produced varying results and prejudice.