The law relating to non-fatal offences against the person is in urgent need of reform - Essay Example

? The law relating to non-fatal offenses against the person is in need of urgent reforms Introduction The law relating to non-fatal offenses against the person has consistently been criticized by judges, lawyers and legal scholars as confusing, archaic and in need of reforms1. Offenses Against the Person Act (OAPA 1861), has been criticized by practitioners since it contains inconsistent and illogical set of rules that clog the court system. The first area which needs urgent reforms is the wording and language of the Act since it lacks concrete definitions of phrases and words used in the laws. Some words have been interpreted in case laws, for instance, the term malicious which is used in Section 20 and 18 is not defined by the Act but courts have defined it as mens rea in section 20 and “with intent” in Sec 18. Assault, battery, grievous bodily harm and actual bodily harm are some non-fatal offenses which are contained in Section 18, 20 and 47 of the Offenses Against Persons Act 18612. Generally, offenses against a person refer to any crime which is committed by use of physical harm or force against the victim. Non-fatal offenses include assault, poisoning, wounding and inflicting grievous bodily harm, and battery. Wounding or inflicting grievous bodily harm is a crime according to Sec 18 of Offenses Against a Person Act 1861 while administering poison is offense which is outlawed by Sec 24 of the same Act3. The law has not defined the word malicious which is contained in Sec 18 and 20. The law should be reformed to give a proper definition of malicious which in simple language may refer to bad motive of the offender. Conflicting arguments about mens rea have also been witnessed. Sec 47 of the Act provides the same mens rea as for lesser offenses such as a battery or assault. The law in this case is inconsistent since it not a requirement for the offender to realize the risk of injury and liability will arise even when the offender causes grievous body harm that result to minor harm4. The law is also inconsistent in the sentencing structure on the maximum sentence attached to each offense. For instance, offenses under Sec 39 of the Act carries a maximum imprisonment term of six months while an offense under Sec 47 provides for a maximum of five years imprisonment5. Mens rea which is equivalent in both Sec 39 and Sec 47 of the Act leads to variations in the sentence thus unjust. Sec 20 offenses of the Act are considered to cause more injury yet they carry the same imprisonment sentence as sec 47 offenses. According to justice and fairness principles of the legal systems, offenders should be morally distinguishable and be treated in a different manner depending on their motive of committing the crime. The Offenses Against the Person Act 1861, is completely outdated since it does not reflect the current social structure. New forms of communication, diseases and methods of committing crime have not been catered for in the law. For instance, Sections 18, 20 and 47 of the Act use the common word “bodily harm” which leaves psychological injury that the victim may suffer due to fear or medical complications due to transmission of diseases such HIV. For instance, Sec 18 of the Act makes it offense wounding and causing grievous bodily harm with intention to the victim, but it fails to give a clear definition of injury. However, courts have been of the opinion that injury should constitute both physical and any mental injury sustained by the person including unconsciousness, pain, and impairment of the mental ability of the person. Sec 20, which makes it offense to wound or inflict grievous bodily harm and Sec 39 on common law assault and battery does not define the nature of injury which can result from the reckless or intentional application of force to the victim6. The law on mens rea of battery needs urgent reforms. The prosecution should prove the unlawful application of force to the other person or the recklessness of the offender in his or her actions. Sec 47 of OAPA 1861 Act states that a person shall be convicted for assault which results to actual body harm and sentenced to a prison time not exceeding five years. The assault can either be psychic or physical assault. According to House of Lords in the decision of Savage v. Parmenter (1991) 4 All ER 698, the view was that some technical assault leading to actual body harm is contained in Sec 47 but the psychic assault without any battery is omitted in the Act. For instance, injury of any baby or persons under sleep without the capacity to apprehend the imminent injury or violence is not covered by section 47 of the Act. Another confusion of the law is the wording occasioning which in simple terms may be interpreted to mean causing. However, harm can result indirectly from the assault just as in the case of Roberts (1971) 56 Cr App R 95, where the accused attempted to make inappropriate suggestions to a woman while driving his car. In this situation, the woman leapt out of the moving car and sustained serious bodily injuries. According to the court, the actions of the accused led to a chain of causation but the law is not clear whether this amounted to battery or assault. However, the actions of the victim where unreasonable thus in such circumstances the current law would make the accused not liable for the offense. The actual bodily harm should be reformed to any injury or hurt that can interfere with the comfort and health of the victim. Any diagnosable medical complication should be defined as actual bodily harm according to the decision in Miller (1954) 2 QB 282. The complexity of the current law has made the Court of Appeal clarify that strong emotions such as fear or distress are not clinical conditions that can lead to injury just as in the decision of Chan-Fook (1994) 2 All ER 552. The law on non-fatal offenses does not clarify the mens rea in battery and assault offenses. In the case of Roberts (1971) 56 Cr App R 95, the offender had the intention of applying unlawful force to the woman when she took off the speeding car but his motive was not to cause any harm or did he realize his actions would lead to any harm. The court was of the opinion that mens rea need not be present in relation to the harm in sec 47 of the Act. The decision was further overruled in the case of Spratt v. Parmenter when the court concluded that mens rea should be subjective recklessness or any intention to cause harm. The issue of mens rea in sec 47 has not been completely resolved since the only difference from other common forms of assault and Sec 47 offense is the actual bodily harm. The law should consider the means which offense is committed, for instance, persistent telephone calls or e-mails may not lead to an assault offense under Section 47. Physical injury should include the unconsciousness, pain and impairment of the victim’s physical condition while medical injury should include all diagnosable medical conditions that may lead to impairment of the mental health7. Section 20 of the Act makes it unlawful for a person to maliciously or unlawfully inflict any grievous bodily harm to another person either with any weapon or without a weapon. This offense can be committed by either maliciously wounding or maliciously inflicting grievous bodily harm8. Surprisingly, a maximum sentence of five years of imprisonment is provided for Sec 20 and 47 offenses despite the fact that Sec 20 offenses are practically considered more serious. The House of Lords in the case of DPP v. Smith (1961) AC 290 described grievous bodily harm a really serious offense. However, there is no clear definition to extend of seriousness of the offense but it may imply the extend of the incapacitation of the victim like severe internal injuries or any broken limbs that may lead to permanent disability. However, the Court of Apppeal in Bollom (1994) CR App R 6 confirmed that no need of prove that the act was life threatening since simple bruises on children that can heal without treatment can also constitute grievous bodily harm9. In sec 20, the grievous bodily harm must be inflicted while under sec 18, the grievous bodily harm must be caused. In the case of Burstow (1997) 3 WLR 534, HL, inflict is narrower than causation. Clarence (1888) 22 QBD 23 held that inflicting was causing by direct assault but several cases have casted doubts on this requirement. However, this interpretation was overruled in the case of Wilson (1983) 3 All ER 448 and Mandair (1994) 2 All ER 715, HL since it is clear that grievous bodily harm can be inflicted on a person without any battery or assault. Sec 20 of the Act is really confusing since without application of force, there could be no infliction of grievous bodily harm. For instance, poisoning can lead to grievous bodily harm but cannot be considered as offense under Sec 20 since not application of unlawful force or violence involved. In practice, harm can be inflicted without any physical force or violence since a person who infects another with diseases such as HIV from having unprotected sexual intercourse will also amount to grievous bodily harm10. The word wounding provides great technical difficulties in interpreting the law. Wounding should result in the breakdown of the inner and outer skin of the victim. From the above language, it is clear that internal injuries sustained by the victim may not compromise wounds. For instance, in JJC v. Eisenhower (1983) 3 All ER 230, the court held that broken blood vessel in a victim’s eye could not be regarded as a wounding. From the above, we can conclude that grievous bodily harm may occur without a wound however the wound can constitute actual bodily harm under sec 20 of the Act11. Even though actus reus may be based on infliction of grievous bodily harm or wound, the courts must be satisfied that the offender acted maliciously. The word malicious can have many technical misinterpretations. However, the offender must foresee the implications of his actions or act recklessness. In the case of W v. Dolbey (1983) Crim LR 68, the court held that the act must be intended or reckless as to the actus reus. However, in the case of DPP v. A (2001) Crim LR 140, the courts were of the opinion that the offender need not foresee the harm occurring but should have the opinion that it might occur. Regardless of the intention or seriousness of the physical harm, the offender must foresee the harm might occur. For instance, in the sexually transmitted diseases cases, if the offender knows or suspects he is infected is enough foresight since he has the ability to foresee the harm possibly occurring12. Sec 18 of the Offenses Against the Person Act 1861 provides that it is offense to “unlawfully or maliciously” cause bodily harm to any person by any means whatsoever. According to this section, the prosecution does not need to prove the presence of any assault due to the words “by what means whatsoever” which are included in the section. The section provides the intention as to do grievous bodily harm, resist lawful apprehension or detention of any person. This section needs reforms since a person intending to resist arrest by a police officer might not realize that his actions might lead to harm thus his actions will not be malicious. Such offenders cannot be convicted for offense under sec 18 of the Act. In the case of R v. Taylor (2009) EWCA Crim 544 T, the offender stabbed the victim in the back with a knife. The trial judge surprisingly was of the opinion that the prosecution should proof the intention of the offender in order to be convicted for Sec 18 offense. Failure of clear evidence of intention, the case was referred to sec 20 whereby the offender was charged with wounding with the intention to cause grievous bodily harm to the victim13. Under the current Draft offenses bill, section 18 should be replaced with offense of intentionally causing serious injury which attracts a maximum sentence of life imprisonment. The word wounding is insufficient as it does not cater the intention to resist lawful arrest thus it should create another lesser criminal offense. The Law Commission was of the opinion that the OAPA Act 1861 is inefficient in controlling non-fatal offenses and suggested certain reforms which include making clear statutory definitions of the offenses. Some suggestions include making harm intended to be foreseen and be related to the offense committed and expressly defining recklessness and intention. The word “inflicts” in sec 20 should also be replaced with “cause” and overrule the current referencing to wounding to the offense of intentionally causing serious injury in sec 18 which should attract life imprisonment14. Conclusion Sec 18 which make it offense wounding and causing grievous bodily injury with intention should be reformed to intentionally causing serious injury which includes both physical and mental injury to the victim. Section 20 which outlaws wounding or inflicting grievous bodily harm should be reformed to an offence of recklessly causing serious injury to another and attract a 7 year imprisonment term. Sec 47 which is on assault occasioning actual bodily harm should be reformed to an offence if done intentionally or recklessly to cause injury to another person including injuries resulting from a disease. Sec 39 of the Act which covers common law assault and battery should be reformed to offense when unlawful force is applied on another person recklessly or intentionally. Bibliography: Allen, Michael. Textbook on criminal law. Oxford. Oxford University Press. 2007. Baird, Norman. Criminal law Q & A 2005-2006 5/e. New York. Routledge. 2005. Geary, Roger. Essential criminal law. New York. Routledge. 1998. Heaton, Russell. Criminal law textbook. New York. Oxford University Press. 2006. Lanser, Denis, Molan, Michael and Parry, Philip. Principles of criminal law. New York. Routledge. 2000. 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