Reviewing the Law Commission’s Recommendations on the “Offences against the Person” 2015 Report (Part 2)

Stavros Demetriou
Stavros Demetriou

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.

Hierarchy 2

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.

 

  1. Reflection

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

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Reviewing the Law Commission’s Recommendations on the “Offences against the Person” 2015 Report (Part I)

Stavros Demetriou
Stavros Demetriou
  1. Introduction

In November 2015, the Law Commission published its proposed reforms on the “Offences Against the Person”, which are mainly covered by the Offences Against the Person Act 1861 (OAPA). This is not, however, the first time that the Commission has sought to review this area of law. In 1998, following the Commission’s previous recommendations, a draft bill was prepared by the Home Office. The 1998 draft bill sought to bring major changes by repealing the OAPA with a new Act of Parliament. Although prepared by the Home Office, the draft bill never made it to Parliament. Nevertheless, the Commission saw the draft bill as a foundation upon which future reforms should be based. It is important to bear in mind that neither the draft bill nor the Commission’s recommendations affect the current state of the law in this area.

This review, which is divided into two parts, will critically evaluate the Commission’s recommendations in this area. Part 1 will give an overview of both the current law and the Commission’s recommendations. In Part 2, the remainder of the Commission’s recommendations will be reviewed.

  1. The current law

This group of offences ranges from relatively minor assaults, the maximum penalty for which is six months of imprisonment, to grievous bodily harm (GBH) offences the maximum penalty for which is a life sentence.  What these offences have in common is the threat and/or use of non-fatal violence against other individuals. To better understand the gravity of these offences, a hierarchy amongst them can be formulated. This imaginary hierarchy is illustrated by Figure 1.1.

Starting with the lower end of the spectrum we have the common law offences of assault and battery which do not require the infliction of any harm. As we move up the ladder we have three general offences which require some sort of injury: (i) under s. 47 of the OAPA an individual will be liable ‘for an assault occasioning actual bodily harm’ (ABH); (ii) under s. 20 of the OAPA an offence is committed when GBH is inflicted upon another; and (iii) under s. 18 of the OAPA an offence is committed where the defendant maliciously wounded or inflicted GBH to another person.

Hierarchy

Although an imaginary blameworthiness hierarchy can be formulated (see figure 1.1), as will be discussed later on, drawing a precise distinction between these offences might not be as straight forward.

  1. The case for reform

Before reviewing the Commission’s recommendations, one must first examine whether the current law is in fact in need of reform primarily for two reasons.

First, the law in this area is primarily governed by the OAPA, which came into force more than 150 years ago. For the criminal law to be effective it must evolve in order to address current social needs. As such, one might question whether the OAPA is still fit for the job. Also, as noted by the Commission, most of the previsions of this Act have already been repealed by more recent pieces of legislation. As a result, only a handful of provisions that Act are still in force. In addition to this, assault and battery are still common law offences. What is problematic about this is that in order for someone to examine what the law in this area is, they must look at a number of different sources. Therefore, incorporating all of these offences under a single piece of legislation might bring clarity to this area and enhance our understanding of the law.

Secondly, the OAPA uses archaic language which might be difficult to understand for those without legal training. A more contemporary terminology is capable of enhancing the public’s understanding of the law by providing clear guidance as to what is prohibited and what is not. This will also give a clear indication to the public about the blameworthiness of the conduct under scrutiny and why they should morally refrain from offending. I will elaborate further on these arguments below.

  1. The Law Commission’s recommendations

Having explained why the law in this area is in need of reform I shall now turn my attention to the Commission’s recommendations, which can be summarised as follows:

  1. The current law in this area is obsolete and in need of modernisation.
  2. The OAPA must be replaced by a new Act of Parliament.
  3. The new Act of Parliament must establish a clear and rational hierarchy amongst those offences.
  4. A new offence is needed in order to bridge the gap between s. 47 and the common law offences of assault and battery.
  5. The new Act of Parliament should be based on corresponding rather than on constructive liability.

In the reminder of this short review I will examine these recommendations in more detail. The first two recommendations will be discussed in Part 1 and the last three will be scrutinised in Part 2.

4.1 The need for a fresh start

The Commission’s recommendations start from the premise that the law in this area is anachronistic and the time has come for a ‘fresh start’. According to the Commission, this fresh start can be best achieved through the introduction of a new Act of Parliament, which will adopt more contemporary terminology and address the problems associated with the current law.

In order to highlight the need for modernisation, the Commission used the common law offences of assault and battery as an illustration. Under the current law, assault consists of conduct which intentionally or recklessly caused another ‘to apprehend immediate and unlawful violence’. Battery, on the other hand, requires some form of physical and unlawful conduct between the defendant and the victim.

The Commission’s criticisms focused on the terminology used and the overall confusion as to the nature of the conduct proscribed by each offence. As to the former, it has been argued that the use of terms such as ‘apprehension’ might be problematic, since they fail to provide clear guidance as to the nature of the conduct proscribed. The Commission proposed the adoption of a simpler approach; replacing ‘apprehension’ with ‘belief’. At first sight, ‘apprehension’ in this context can be interpreted as ‘fear of immediate violence’. However, as stated by the Court of Appeal in Constanza, ‘fear of immediate violence’ is a sufficient but not a necessary condition in this context; ‘fear’ will be enough to satisfy the result element of the actus reus. There is no need for the victim to be afraid; realising the possibility of immediate violence will be enough.

Adopting a simpler terminology might not have any impact upon the way in which the law is enforced. However, according to the principle of ‘fair warning’, the drafting of the criminal law should be as clear as possible in order to enable the public to understand what is required of them or what they should refrain from doing.

As to the latter, reference was made to the fact that the term ‘assault’ is used in common language to describe what is legally defined as battery, causing uncertainty as to what kind of conduct is proscribed under each of those offences.  This can be partly attributed to the fact that ‘battery’ is rarely used in modern language and its use in this context can be misleading. The Commission criticised these offences as not being labelled appropriately and failing to accurately reflect the nature of the wrong committed. For that reason, changes to the label attached to each offence were proposed. The offence of battery should be relabelled as ‘physical assault’ where as for the offence of assault should be changed to ‘threatened assault’.

Compared to the current terminology, labels proposed by the Commission are more representative of the true nature of the conduct proscribed by each offence. The label assigned to each offence is very important due to the fact that it provides an indication as to the nature of the perpetrator’s conduct and the degree of blameworthiness attached to it. Attaching a ‘fair label’ to each offence is particularly important since it ‘ensure[s] a proportionate response to law-braking, thereby assisting the [criminal] law’s educative or declaratory function’ (A. Ashworth and J. Horder, Principles of Criminal Law (7th edn, OUP 2013) 77). In order for the criminal law’s response to be proportionate, the label attached to each offence must be representative of the nature of the conduct proscribed.

Stavros Demetriou is a PhD student at the Sussex Law School