Revision of reforms

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Reform of NFOAP.

Structual:

  • Mixture of common law and statute (Sexual Offences 2003/CJA 1988)
  • No clear definitions = confusion, cost, delay + injustice
  • Criticisms by law commission: ‘Rag bag of offences’ 1993 – Govt: ‘It’s a disgrace’ 1998

Age: Principal act (1861) almost 150 years old. CJA is also 20 years old

  • In fast evolving social, cultural and technological society this needs updating:
  • Psychiatric harm (Ireland/Burstow/Chan-Fook)
  • Cyber Bullying/Stalking
  • HIV/AIDS – Dica/Konzani

Language: Some terms archaic + don’t reflect modern language (Smith – Grevious/Maliciously – Mowatt)                   - Terms lack clear definition – Assault

  • Occasioning/Inflicting/Causing all mean the same thing – Burstow

Heirarchy: Of offences defies logic

  • MR doesn’t determine liability, AR does
  • Sentencing of S.47 + 20 are 5 years, then S.18 jumps to life
  • REFORM? Assault = 6 Months.        – New S.47 = 5 Years       - New S.20 = 7 Years
  • S.18 Remains at life.         Clarify essential as it deals with 80,000 cases/year.

Consent: Adds confusion, public policy constraints make it assault/battery only except from lawful exceptions (Brown/Wilson)

Critique Of Offences:

Common Assault: - Police/Lawyers/Judges use terms interchangeably. Confusing to lay person

  • Proposals integrate two offences to simplify and make law clearer

Assault: - Man in street believes this is a violent offence when infact no harm is required

  • Absence of ‘Fair Labelling’ (Clarkson) – Light;Logdon
  • Apprehend only requires belief of force to be applied, no need to be frightened or rational (Ramos/Smith) 
  • Immediate defined as ‘Not excluding near future’ so it is unclear when threat becomes a future threat, which is not an offence
  • Ireland didn’t clarify when the assault took place

Battery: - Man in street believes this is beating but Thomas said merest touching of clothing sufficed

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  • Unclear if it can be committed by omission (Fagan;Bermudez)

S.47: – Lacks clear definition as to ABH

- Difference in Physical + Psychiatric ABH leads to injustice as to different level of injury

- MR is constructive liability, creates higher liability out of lesser offence (Savage/Roberts)

- Definition becomes intentional or reckless injury. This is simpler and more just (no constructive)

S.20: – Necessary to see if it is an actual/wound or GBH. Lacks definition of both terms.

- Eisenhower definition means that paper cut is a wound whereas GBH must be ...

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