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9 Cards in this Set
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1st Para - OAPA 1861, 150 y/o, x2 org in need of reform, Law commission 2015
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The main piece of legislation on the nonfatal offences is the Offences Against the Person Act 1861, This legislation is over 150 years old and both the Law Commission and Law revision committee have suggested it is in need of reform. Law commission recently published a report outlining the problems with the offences against the person act in Autumn 2015.
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2nd Para - 1993 Law commission report, draft, problems lang, struc, sent etc |
In 1993 the Law Commission published a report entitled The Law Commission Report Offences Against the Persona Act 1993. Many of its recommendation were included in the Draft Bill of Offences Against the Person 1998. The Victorian legislation includes the following problems, use of archaic language, illogical numerical sequencing, structure of offences, sentences available restrictive knowledge of mental injury, and no contemplation of biological disease. |
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3rd Para - s47, structure, MR trivial and insignificant, reckless, blameworthiness, max sentence. |
Individual section s47. Guilty if commits assault occasioning actual bodily harm. The main problem is the mens rea the injury caused must be more than trivial and insignificant, but the D only has to be reckless to some touching or cause the V to apprehend the threat of immediate and unlawful violence. R v Roberts. AR and MR do not correspond, as the D's level of blameworthiness could be quite low. Which can be a problem as the max sentence is 5 years. |
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4th Para - draft bill, intention or recklessness to cause injury, max sentence, statute. |
These problems are addressed in the draft bill, a D would be guilty of clause 3 if he intentionally or recklessly caused injury to the V. Max sentence would still be 5 years, but D would have to intend or be reckless to the injury caused. Intention, reckless and injury would be defined in the statute.
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5th Para - s20, serious harm for D to be guilty, x5 years same as s47, MR and AR don't match.
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One of the greatest criticisms of this section is that the D must have caused serious harm to the V to be found guilty, and the max sentence is 5 years the same as s47. Also mens rea required for this section is to intend or be reckless to some harm albeit of a minor nature, so again the MR does not match the AR
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6th Para - Reform found in draft bill clause 2, 7 year sentence, more serious. |
The suggested form can be found in the draft bill this section is found in clause 2 and is the offense of reckless serious injury. The D would have to be reckless to serious injury and it would carry a max sentence of 7 years in prison., reflecting that this is a more serious clause. |
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7th Para - Wounding AR FOR S20, PIN PRICK, JCC v Eisenhower, reform would sort this. |
One criticism which is common of s20 and s18 is the fact that wound can fulfill the AR of both sections and wound is held to be breaking all layers of the skin JCC v Eisenhower. This could in theory mean that a D could be found guilty of s20/18 after pricking someone with a pin. The requirement for serious injury would for both clause one and two of the draft bill would reform this anomaly. |
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8th Para - s18, GBH, wound or resist arrest, R v Taylor, int serious harm,clause 1, lang. |
For s18 the D must have caused Grievous Bodily Harm, maliciously wound or resist arrest. R v Taylor confirmed the correct MR for s18 is intention to cause serious harm, and intention to wound is not sufficient. Clause 1 of the draft bill is intentional serious injury, this lang is more straight forward. This clause would also remove resist arrest due to D having small blameworthiness level but still being convicted or a serious offense. |
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9th Para - age of act, lang misleading, malice s20, random, draft bill is more logical. |
One problem relating to the age of the act, is that the language is misleading and archaic. Maliciously, s20 R v Cunningham, maliciously was interpretated to mean intentionally or recklessly for legal purposes. Whilst in everyday language malicious means "with a bad motive". |
