Evaluations and Reforms

Non-Fatal Offences

Weaknesses in the current law: Assault and battery are defined at common law, not statute. Their meanings are not widely understood.  The meaning of 'assault' is ambiguous. Courts have held assault to include both assault and/or battery, leading to confusion.  Old fashioned vocabulary is used in OAPA 1861. E.g. maliciously now suggests 'ill-will' but courts have decided it means intention to inflict some harm: MOWATT S.20 and s.18 both contain separate offences (wounding and GBH). Wounding is method of injury, GBH is extent. There is no logical connection between them. Wounding covers minor cuts, but s.20 is regarded as a serious offence. Max sentence is illogical for s.47 and s.20. They both have max. 5 years but max will only be given for s.20 in practice. Judges take a dimmer view of s.20 than s.47 when considering previous convictions. 

It is unclear if consent is a defence in it's own right or a factor which prevents the actus reus from being proven. Judges disagree on this, as in BROWN AND OTHERS  s.20 states that there must be an 'inflicting' of GBH whereas s.18 uses causing. Historically, the courts have said 'inflicting' requires a direct forcible injury such as battery: CLARENCE. However, BURSTOW held there was no difference for practical purposes.  For both s.47 and s.20 the mens rea required does not match the level of harm which must be caused. SAVAGE held D does not have to intend or risk ABH to be guilty. Surely the AR and MR should correspond in seriousness.  Maliciously in s.18 appears to be redundant where the charge is based upon intention to cause GBH. However, the courts have held it is relevant when the charge is based upon intention to prevent/resist arrest: MORRISON

Non-Fatal Offences

Development of the law: Battery has been developed to include indirect batteries: HAYSTEAD and omissions: SANTANA-BEMUDEZ v DPP The law on what amounts to GBH has been adapted to meet new circumstances - it includes serious psychological injury: BURSTOW and biological ham: DICA In 2015 the Law Commission presented a report on the reform of the non-fatal offences. It proposes the replacement of the OAPA 1861 with a modern act. There would be three new offences: Intentionally causing serious injury (replacing s.18, max. life) Recklessly causing serious injury (replacing s.20, max. 7 years) Intentionally or recklessly causing injury (replacing s.47, max. 5 years)

There would be a clear hierarchy of offences, with modern and simplified vocabulary. The injury caused and injury foreseen determines the position of the crime in the new hierarchy, as well as in the sentencing.  These crimes would satisfy the 'correspondence principle' in that the MR and AR would correspond in their seriousness.  Wounding would only be covered by these new offences if it amounted to serious injury.  The transmission of disease would fall with the definition of injury. Assault and battery would become the statutory crimes of threatened assault and physical assault respectively.  There would be separate, clearly defined offences dealing with intending to resist/prevent arrest.

Intoxication

There is conflict in the law on intoxication between public policy and legal principle. Public policy is making law based on the protection of society, so it favours conviction for intoxication as it is a major factor in the commission of many crimes.  However, according to legal principle, it is only fair to acquit D's if they have no mens rea and are not at fault. The law on intoxication has tried to balance these conflicting interests, but has given public policy priority. E.g. a mistaken belief due to voluntary intoxication is not sufficient for self defence: s.76 (5) CJIA 2008.  Some areas of the law on intoxication appear to contradict the normal rule on AR and MR. The MAJEWSKI rule, that D is guilty of a basic intent crime as he is reckless in getting intoxicated, ignored the principle that the AR and MR must coincide.

The identification of crimes as specific and basic intent is neither logical nor consistently applied. E.g. involuntary manslaughter is basic, despite only reckless manslaughter mentioning recklessness.  Where D is charged with an offence under s.18 OAPA 1861, he can use intoxication as a defence provided he was so intoxicated he did not form the intent to do GBH. However, because voluntary intoxication is not a defence to basic intent crimes, such a defendant can be found guilty of the fall back offence of s.20 OAPA 1861. Not all specific intent crimes have a fall back, e.g. theft. There is inconsistency in the law. 

Intoxication

Reforms in the law: In 2009, the Law Commission presented a report on the reform of intoxication to Parliament.  It proposes the abolishment of the misleading terms 'specific' and 'basic' intent.  There would be a list of states of mind that always had to be proven by the prosecution, e.g. intention as to a consequence, knowledge as to something etc.  These states of mind would be called integral fault elements.  For offences with integral fault elements, evidence of voluntary intoxication could be used to establish a lack of mens rea.

The MAJEWSKI rule would apply to other offences.  In deciding whether or not D is liable, D should be treated as having been aware of everything he would have been aware of if he had been sober.  If the Law commission's proposals were enacted by Parliament, this would make the law clearer and more accessible.

Consent

It is important to allow a defence in some situations involving injury, e.g. if there was no defence of consent, contact sports would be illegal. This is why in ATTORNEY-GENERAL'S REFERENCE (No. 6 of 1980) the C/A held that as a general rule consent is unavailable for the more serious non-fatal offences, unless the situation is one of the exceptions recognised by the courts.  The list of common law exceptions includes 'properly conducted sports' and horseplay. These exceptions are based on public policy - there is social benefit.  There is a lack of clear rationale for the exceptions. E.g. if horseplay results in serious injury, the courts have ruled consent may be a defence: JONES AND OTHERS.  However, this goes against the principle that it is not in the public interest that people cause each other ABH for no good reason: A-G'S REF. (No.6 of 1980).  It's been argued consent shouldn't be available for horseplay so participants would be aware the law wouldn't offer them protection if it goes wrong.

It is difficult to reconcile the decision in BROWN AND OTHERS with that in WILSON.  In BROWN AND OTHERS, the H/L held that consent could not be a defence to sadomasochist behaviour between consenting homosexual adults. In WILSON the C/A held that consent could be a defence where a husband branded his wife's buttocks with his initials. It seems odd that the defence was allowed in WILSON, despite D's need for medical treatment, and not in BROWN AND OTHERS where no medical attention was needed. Some argue there is one law for homosexuals and another for heterosexuals.  There is also a problem that no-one can consent to their own death. The law allows someone to commit suicide, but where they are not capable, someone who helps could be guilty of assisting suicide: DPP v PRETTY Arguably, Parliament should legislate on the availability of the defence of consent. However, it could be argued that the judges are in a better position to proceed on a case-by-case basis, rather than Parliament attempting to lay down general principles. 

Murder

Having a mandatory life sentence for murder means that the trial judge cannot take D's motive into account when sentencing.  D will get a life sentence whether they are a mercy killer in a euthanasia case or a cold blooded serial killer. The harshness of this can be moderated by the judge stating a minimum number of year's imprisonment they must serve before being eligible for release on licence. The mens rea for murder is intent to kill or cause GBH: VICKERS. For such a serious crime should it only be intent to kill? The current offence of murder is too wide. In some cases D may not realise death could occur, yet he is just as guilty as someone who deliberately sets out to kill V.

The use of excessive force in self-defence where some force was justified does not provide a defence. This 'all or nothing' approach can lead to injustice in some murder cases, as D is either acquitted or convicted and given a life sentence. D was justified in using some force and his only 'fault' was that he used more force than was reasonable: MARTIN

Reforms: In 2006, the Law Commission recommended that murder be divided into two separate offences: First degree murder (killing with intent to kill or cause serious harm knowing there was a serious risk of death). Second degree murder ( killing with intent to cause serious harm where D suffered diminished responsibility or loss of control or was under duress). Only the first of these two offences would have a mandatory life sentence. Second degree murder would carry a discretionary life sentence, allowing sufficient differentiation in sentencing to cover the variety of levels of blameworthiness in crimes of murder.  The proposed offence of second-degree murder, carrying the flexibility of a discretionary life sentence, would be available for someone who intended to do serious injury but was not aware that there was a serious risk of death.

Some attempt has been made to address the problem of no self-defence if the force was excessive by the CORONERS AND JUSTICE ACT 2009. This statute allows a partial defence to murder provided D kills having lost control due to a fear of serious violence.  If this is the case, D will be guilty of voluntary manslaughter and can be sentenced up to life imprisonment. This partial defence is only available if a person of the same age and sex would have reacted in the same way in the circumstances.  Also, the CRIME AND COURTS ACT 2013 gives a wider defence to householders where an intruder enters their property. They can use the defence of self-defence provided that the degree of force was not 'grossly disproportionate'. 

Voluntary Manslaughter

The CORONERS AND JUSTICE ACT 2009 has added some clarity to the law on Ds who kill following a loss of control. Older cases on what characteristics could be taken into account to decide whether a reasonable person would have been provoked, showed that the law was a mess: (conflict between SMITH (2000) AND HOLLEY (2005)).  The removal of the need for a loss of control to immediately follow the provocative incident seems fair as the old law was biased in favour of male Ds. This is because men are more likely to suffer a sudden and temporary loss of self-control when provoked, which was required by DUFFY. The amended HOMICIDE ACT 1957 allows for a slow burn reaction typically experienced by female D's in domestic abuse cases. 

The qualifying triggers in s.55 include fear of serious violence so could cover abused women cases.  Although, because of the need for a loss of control, it may still be hard to succeed with the defence in such cases. The Law Commission had suggested removing the need for any loss of control but this was rejected by the Government.  Under s.55(6) of the CJA 2009, things done and/or said which amount to sexual infidelity cannot on their own be a qualifying trigger for the defence of loss of control. Yet the former defence of provocation was largely created for such situations. If D unexpectedly finds their partner having sex with another person, they are very likely to lose their self-control. The law on when sexual infidelity can be considered is complex and confusing. 

Voluntary Manslaughter

Reforms: The requirement of a 'recognised medical condition' for diminished responsibility is clearer than the old law and will allow for more modern syndromes to be taken into account.  However, 'abnormality of mental functioning' is still difficult for the jury to understand and medical evidence is often confusing.  The amended law on diminished responsibility does not cover developmental immaturity, even for those under 18, as recommended by the Law Commission. If developmental immaturity is not allowed as a cause of diminished responsibility, then children with this condition may unfairly be convicted. A proposal for reform would be to extend the definition to cover developmental immaturity. 

Some argue that the burden of proof for diminished responsibility should not be on D. Instead, the burden of proof should be on the prosecution to disprove the defence beyond reasonable doubt. This is the situation with most defences.  Also, making D prove diminished responsibility could be considered a breach of the human right to be presumed innocent until proven guilty. However, the courts have consistently held that the defence is not a breach of the European Convention on Human Rights: FOYE.  Moreover, there would be significant difficulties imposing the burden of proof on the prosecution to disprove matters so personal to D.