In Part I an overview of Commission’s recommendations has been provided. Through this process the case for reform has been analysed focusing on the need for modernisation. In the final part of this review I will turn my attention to Commission’s last three recommendations.
4.2 Establishing a clearer hierarchy
According to the Commission, a further cause for concern is the lack of clear distinction, in terms of blameworthiness and conduct proscribed, between some of the offences under discussion. For example, as illustrated in figure 1.1 the maximum sentence available for both ss. 47 (assault occasioning bodily harm (ABH)) and 20 (wounding or infliction grievous bodily harm (GBH)) is exactly the same; albeit a different kind of harm is proscribed by each offence. Currently, GBH is defined by law as an injury which is ‘really serious’ and can include among other injuries, the transmission of HIV and stabbing. ABH covers injuries which are ‘more than merely transient and trifling’ and ‘interfere with the health and comfort’ of another including among other injuries, those such as grazes and bruising. Although the degree of harm required by each offence can vary considerably, the maximum sentence available is the same for both offences. This is not to suggest that the same sentence will be imposed on someone who has committed an offence under s. 47 and another who has committed an offence under s. 20. Most probably in practice, the sentence imposed will vary considerably between the two. Rather, this is to suggest that from a normative point of view the fact that the maximum sentence available for both offences is exactly the same is problematic.
Based on the current law, ABH and GBH seem to be equal in law. This, according to the Commission, fails to reflect the difference between the two in terms of the seriousness and the blameworthiness of the harm inflicted. Also, it could be argued that this can cause uncertainty as to the correct hierarchy amongst these offences. Hence, it was recommended that the maximum sentence available for the s. 20 offence should increase to seven years imprisonment (see figure 2.1). Maintaining a clear hierarchy amongst offences which belong to the same groups of offences should be a priority for the criminal law. As noted in Part I, the label attached to each offence should be representative of the nature of the wrong committed. Here, the homicide offences can be used as an example. Let us use the offences of murder, which carries a mandatory life sentence, and the one of involuntary manslaughter, which carries a maximum life sentence. In principle, it would be morally wrong for the criminal law to treat a murderer the same as somebody guilty of involuntary manslaughter. It would be morally wrong for the criminal law to label both of them as murderers even if they receive the same penalty; a life sentence. For this reason I believe that the Commission’s recommendation on this point is justifiable and should be implemented. By increasing the maximum penalty available for the offence committed under s. 20 a message is conveyed to society that those who commit an offence under this section are more blameworthy than those who commit an offence under s. 47.
4.3 Bridging the gap
The fourth main recommendation of the Commission focuses on relatively minor forms of assaults occasioning ABH. In other words, it focuses on conduct which lies on the boundaries between s. 47 and the common law offence of battery. The Commission contended that some kinds of behaviour although they technically fall within the scope of s. 47 should not be dealt with by the Crown Court. Instead, according to the Commission, they should be dealt with by the Magistrates’ Court. In other words, the severity of those assaults is so trivial that it will be unjustifiable to send the case to the Crown Court. In a Magistrates’ Court a case like this will be dealt with swiftly without spending more resources than is necessary. On this basis, the Commission proposed the introduction of a new offence which will fill this gap in legislation; the offence of ‘aggravated assault’. The proposed new offence would have a maximum penalty of twelve months of imprisonment and would be triable only in a Magistrates’ Court.
It is true that the s. 47 offence can cover a wide range of injuries ranging from simple bruises to stabbing and so using the same labelling for all offenders might be morally controversial. Adding a new offence might help clarify the law further and label offenders more accurately. However, adding a new offence is likely to cause more uncertainty as to the kind of conduct dealt with by each of these offences. Hence, I believe that a new offence has little to offer here.
4.4 Introducing offences based on corresponding liability
The final recommendation of the Commission for this group of offences relates to the basis upon which liability is constructed particularly for the OAPA offences. According to the Commission, liability for the offences under ss 18, 20 and 47 should be based on corresponding rather than on constructive liability. Currently, these offences are based on constructive liability. For example, in order to establish liability under s. 47 there is no need for the defendant to intend or to foresee the end result; causing an ABH to the victim. Suppose that the defendant wanted to commit battery but the victim, as a result of defendant’s unlawful touching, fell and injured himself. Despite the fact that the defendant did not intend the victim to fall and injure himself he might still be liable under s. 47.
The distinction between constructive and corresponding liability can be best illustrated through the offence of murder which can be committed on the basis of both constructive and corresponding liability. Suppose, for example, that we have two defendants who shoot and kill two different victims. The first defendant intended to kill the victim (corresponding liability). The second defendant only intended to cause GBH (constructive liability). In the absence of any defence both of them would be found guilty of murder. Now compare and contrast the above example with the following hypothetical scenario. A third defendant shoots a third victim in the leg. The victim survives but is severely injured. It is proven later in court that the defendant only intended to cause GBH. Still, however, the victim was very lucky to survive in this case.
It is instructive here to compare the liability of the second and the third defendant. Both intended to inflict GBH. However, the second defendant has committed murder which carries a mandatory life sentence. The third defendant, who was lucky that the victim did not die, was found guilty under s. 18 and faces a maximum sentence of life imprisonment. Although both of them might eventually receive a life sentence the second defendant will be labelled as a murderer whereas the third will not simply because he was likely enough not to kill the victim. Is it just for the two defendants to be treated differently? It could be argued, as the Commission did, that it would be unfair for the third defendant to be treated differently because he was lucky enough not to kill the victim. Equally, it might be argued that what matters is the harm caused. On this basis, causing someone’s death is the most serious wrong that can be committed irrespective of how lucky the defendant was; he chose to break the law and for that reason he should be punished. My intention is not elaborate further on this issue; however, I am of the opinion that constructive liability is not objectionable per se especially where there is a sufficient degree of proximity between the defendant’s conduct and the harm caused.
In summary, there is a compelling case for modernising the current law in this area. This, however, does not necessarily mean that new legislation is required. Rather, it might have been worth examining the possibility of retaining the current offences and gradually carrying out relevant amendments. For example, changes in sentencing might be implemented straight away without causing many problems to the criminal justice system (CJS). Approximately 800, 000 offences of this kind were recorded last year. Repealing all of these offences simultaneously through a new Act of Parliament might impose a huge burden on practitioners and courts. Unsurprisingly, the 1998 draft bill, which forms the basis upon which Commission’s recommendations were based, still has not been passed into legislation by any government since.
Stavros Demetriou is a PhD Student at Sussex Law School