Law Reform

Law Reform

Introduction

            Criminal law is essential in enhancing the development of law and order in society. Its deployment ensures that justice is delivered to victims and that the offenders are fairly punished. If the defendant is found guilty of committing an offence, he or she is subjected to criminal sanction either through a prison sentence or imposition of a fine. Criminal law is specifically concerned with delivering justice. In determining whether an offense has been committed or not, the elements of criminal law must be taken into consideration.  In spite of the effectiveness of criminal law in enhancing justice, the law is characterised by some gaps.

Therefore, there are a number of areas relating to criminal law that require reforms in order to enhance the effectiveness with which justice is delivered. Thus, the Offenses Against a Person Act 1861 (OAPA) should be adjusted. The need to adjust the 1861 Act is supported by the Law Reform Commission, which is established under the Law Reform Commission Act 1975 in the UK. The Law Reform Commission is of the view that the 1861 Act should be reformed in order to align with the modern statute.  Amongst the major criticism of the 1861 Act entail the fact that it does not optimally classify offences in accordance with the degree of their seriousness. Secondly, the offenses are narrowly defined rather than based on a clear principle. Some of the major issues that require reform relate to assault and battery, and sexual offences. Molan asserts that ‘criminal assault, batteries, and wounding are the staple diet of the criminal courts with over 100,000 prosecutions a year’. Considering the voluminous nature of court cases, it is imperative for reforms to be done in order to enhance the efficiency and effectiveness with which justice is delivered. Additionally, the rationale for reform is to ensure fairness.  Criminal law should be aimed at ensuring that the accused is proven to be guilty of an offence before liability can be imposed.  This paper provides a critical analysis of legal reforms in relation to the above issues.

Analysis

Sexual offences

 According to Stone, sexual offences entail ‘interference with the victim’s privacy, infringing the most intimate areas on individual’s personality’. Sexual offences primarily focus on non-consensual contact with a person, which makes it a potentially serious crime.  Sexual offences are stipulated under the Sexual Offences Act 2003 (SOA 2003). Previously, sexual offences under the 1861 Act were incoherent, discriminatory, cumbersome, and inadequate. However, the formulation of the SOA 2003 has contributed to the implementation of a number of adjustments. One of the legal issues relating to sexual offences that require be reformed relates to informed consent, which is not narrowly defined. For example, under section 20 of the OAPA 1861, a person who engages in unprotected penetrative sex with a victim without informing the victim of his HIV status and subsequently infects the victim with the virus can be convicted of inflicting grievous bodily harm by transmitting the virus. The OAPA 1861 stipulates that agreeing to have sex does not constitute agreeing to the risk of contracting a potentially fatal disease. On the basis of the legal issues stipulated under the 1861 Act, the law on sexual offences does not optimally define informed consent.  Herring asserts that consent is of fundamental importance in dealing with sexual offences. The 1861 Act did not integrate all the necessary issues under the principle of informed consent. Thus, application of the OAPA 1861 might result in delivery of unfair judgement or miscarriage of justice. Molan emphasises that an ineffective definition of consent may lead to the conviction of an innocent party or allowing a guilty party to walk free. Prior to the implementation of the SOA 2003, the definition of consent was left to the jury.  This was a major issue because the definition of the principle of consent is a matter of principle.   However, in an effort to enhance justice, the government appreciated the need to reform the law by ensuring that the concept of justice was optimally defined.

According to SOA 2003, consent occurs if an individual agrees by choice to a particular choice and if he has the capacity to make a decision relating to the said choice. In reforming laws on sexual offenses it is imperative for the Law Reform Commission to take into consideration the principle of informed consent in order to effectively address sexual offences. The definition of the principle of informed consent should be based on a holistic approach. Under the OAPA 1861, the principle of informed consent was not sufficiently defined. This aspect is underlined by the case of [2007] WLR 1567, [2006] EWCA Crim 2945, [2007] 1 WLR 1567. In this case, the victim consented to engage in sex with the defendant and was subsequently infected with the HIV virus. The defendant was arrested, charged, and convicted of rape as stipulated under section 20 of the OAPA 1861.  In seeking legal redress, the victim argued that she was not informed of the defendant’s HIV status, which led to her contracting the HIV virus. However, the defendant appealed in which the judge nullified the initial judgment arguing that the defendant was not under any obligation to provide informed consent relating to his HIV status. On the contrary, the victim had the capacity and freedom to make a decision relating to engaging in sexual activity with the defendant. Ormerod, Smith, and Hogan affirm that ‘the current position in English law is that if  A who is HIV positive fails to inform B of that fact before having unprotected intercourse, A will not commit rape, A is regarded not as having deceived B as to the nature of the act (sex), but as to the risk of infection’.

In making recommendations for reform on sexual offences, the Law Reform Commission proposed a number of issues. First, the Commission argued that section 5 of the Criminal Law, viz. Sexual Offences Act 1993, should be reformed to align with the elements of capacity to consent to involvement in sexual activity. Moreover, the Commission argued that a rights-based approach should be adopted in reforming laws on sexual offences. Rand and Gabrielle are of the view that ‘ rights-based approaches focus on building capacity to claim rights, to advocate for new policies or change to existing policies or practices, to network, to organise and participate in local governance. Through this approach, the criminal law stipulated will play a fundamental role in enhancing the efficacy with which judgement bordering sexual offences is delivered.  

Adopting a rights-based approach will play a fundamental role in enhancing fairness in making judgement. Integration of a rights-based approach in reforming the law will ensure that the defendant is not oppressed by the judgement but is rather charged in accordance with the stipulated guidelines. Under the OAP Act 1861, the definition of consent was left to the jury, hence exposing the defendant or the victim to biased judgement. In making recommendations on the concept of informed consent, the Law Reform Commission argued that consent should prevail if the party agrees to engage in intercourse and is aware of the foreseeable consequences arising from such an activity. On the basis of this aspect, reform on sexual offences will create an opportunity whereby individuals involved in sexual activity on the basis of informed consent are obliged to be aware of the likely consequences of engaging in such activities. The reform on the concept of consent has played a fundamental role in improving juries’ capability to resolve criminal cases involving sexual offences beyond a reasonable doubt.

Assault and battery

Assault and battery are ranked amongst the non-fatal offences against a person under the OAPA 1861. Non-fatal offenses entail interfering or threatening to interfere with another person’s bodily integrity, which makes such conduct criminal. Nevertheless, for assault to occur, physical contact is not a prerequisite (Rosen, p. 103).  Child and Ormerod assert that assault entails ‘any conduct by a defendant that, intentionally or recklessly, causes the victim to apprehend imminent unlawful personal violence’.  On the contrary, battery entails any conduct by a defendant that recklessly or intentionally results in unlawful personal violence towards a victim. Therefore, criminalisation of assault and battery occurs on the basis that it results in the infringement of an individual’s right to ‘privacy’. However, the two offences are treated separately under OAPA 1861.   

Despite the categorisation of assault and battery as non-fatal offences, the assault has a narrow and broad definition. In the narrow sense, physical contact is not a requisite for assault to occur.  Under this definition, assault occurs if defendant behaviour induces fear of unlawful violence against the victim. Conversely, assault constitutes the elements of ‘battery’ and ‘assault’, which means that physical contact with the victim must be evident. The prevalence of the narrow and broad definitions of assault is not clearly defined.

One of the main weak points in relation to assault and battery as one of the offenses against a person relates to the element of hostility. Child and Ormerod are of the view that ‘hostility is not an element of assault or battery’. This assertion is supported by Lord Lane CJ who emphasises that battery entails touching another person intentionally without lawful excuse or his or her consent. Elimination of the element of hostility leaves significant gaps in defining the concept of hostility. In making recommendations on the requisite reforms on assault, the Law Reform Commission argues that the law on assault should further include an offence relating to “aggravated assault”, which entails an offence in which injury is caused.  

The commission proposes that the “aggravated assault offence” should be established between the offence of recklessly or intentionally causing harm and other assault offences. Moreover, the commission argues that the maximum imprisonment period in relation to the offence of aggravated assault should be set at 12 months. This means that the period of imprisonment under offences of aggravated assault should be reduced to 12 months. Section 39 of the OAP Act 1861 stipulated that an individual who is convicted of engaging in assault resulting into actual bodily harm should be liable for 3 years imprisonment.  Conversely, section 20 of the OAP Act 1861 stipulates that an individual who maliciously and unlawfully inflicts bodily harm to another party either with or without a weapon will be considered guilty of engaging in misdemeanour and hence liable to a jail term of not more than 5 years.  Undertaking these reforms will ensure that the element of hostility is effectively integrated in delivering justice. However, with reference to the period of improvement, offences characterised by aggravating features such as causing physical or body injury to a person should carry heavier penalties in order to deter individuals from engaging in such criminal activities.

In an attempt to reform the 1861 Act, clause 4 of the Home Office Bill of 1998 stipulated that battery and assault should be considered as the same offence. However, this would lead to unfairness in the delivery of justice because some elements of offences against a person will not be considered because of the distinctive definitions of battery and assault. On the contrary, the Law Reform Commission recommends that offences against a person in relation to assault and battery should be treated separately. This means that the concept of law should be expanded to include physical assault (battery), and threatened assault (assault). This approach will enhance the effectiveness with which justice is delivered to the victim.  In seeking legal redress in the event of experiencing grievous bodily harm or wounding, the law required the victim to prove that continuity of layers of his or her skin have been broken as a result of the act. This legal aspect is illustrated in the case of JCC v Elsenhower [1983] 3 All ER 230. In this case, the defendant was charged under section 20 of the OAP Act 1861 of bruising a young man below his eyebrow using a pellet which was fired using an air pistol.  The magistrate dismissed the case under section 20 arguing that the victim was not bruised since the continuity of his skin had not been broken by the pellet despite the fact that the pellet had caused rupturing of the blood vessels in the victim’s eye. This case highlights the fact that the 1861 Act was unfair in the administration of justice. The commission is of the opinion that cases of assault resulting in low level bodily injuries should be tried under the magistrates’ courts in which a sentence of six months or less is expected as opposed to being tried under section 47.  The commission is further considering developing a special category of offence in relation to these types of offences in order to ensure that they are sufficiently addressed. Therefore, expanding the definition of assault and battery will ensure that the resulting legal redress is in accordance with the offence committed. This view is supported by Molan, Bloy, and Lanser who emphasises that ‘a defendant ought to be charged with either assault or battery as the facts dictate’.

Conclusion  

The analysis indicates the need for the UK Law Reform Commission to undertake legal reforms in the proposed areas. Amongst the fundamental areas of criminal law that require reform relate to sexual offences and assault and battery.  One of the areas that the Commission should take into consideration in reforming laws on sexual offences relates to the concept of informed consent. Under the traditional OAPA 1861, the concept of informed consent is not adequately defined despite the fact that it constitutes a fundamental issue in the delivery of justice with regard to sexual offences. This might create a significant legal gap which might lead to the delivery of unfair judgement. Therefore, in defining the concept of the informed concept, the Commission should ensure that a broad approach is adopted as opposed to a narrow approach. Secondly, in reforming laws on assault and battery, the Commission should ensure that the definition of battery and assault is effectively developed. This will ensure that the laws on battery and assault developed sufficiently cover all the offence under this category. By implementing these legal reforms, the Commission will play a fundamental role in eliminating legal gaps that increase the occurrence of a miscarriage of justice. The ultimate effect is that the reforms will promote the effectiveness of criminal laws on offences against a person by ensuring that justice is delivered to the victim. Conversely, the laws will ensure that the defendant is not charged unfairly on the basis of the ineffective definition of legal concepts.

References

Books

Allen Michael, Textbook on criminal law (Oxford: Oxford University Press 2013).

Bloy Duncan and Parry Phillip, Principles of criminal law (New York: Routledge 2013).

Herring Jonathan, Criminal law; text, cases, and materials (Oxford: Oxford University Press

            2012).

J J C (A Minor) v Eisenhower: QBD 1983, [1983] 3 All ER 230, [1983] Crim L R 567

(Swarb.co.UK, 22 Jan. 2017). 

Martin Jacqueline and Storey Toney, Unlocking criminal law (New York: Routledge 2015).

Molan Michael, Bloy Duncan and Lanser Denis. Modern criminal law (London: Cavendish

            2003).

Molan Michael, Cases & materials on criminal law (New York: Psychology Press 2005).

Molan Michael, Criminal law, 2014 &2015 (Oxford: Oxford University Press 2014).

Padfield Nicola, Criminal law (Oxford: Oxford University Press 2016).

Pegg Samantha and Davis Ann, Sexual offences; law and context (New York: Routledge

            2016).

Rand Jude and Watson Gabrielle, Rights-based approaches; learning project (Boston, MA:

            CARE USA 2007)

Rosen Richard, Offences against the person (London: Cavendish 1999).

Stewart Christine, Pamuk na poofta: criminalising consensual sex in Papua New Guinea

            (Anu, Acton: ANU Press 2014).

Stone Richard, Offences against the person (London: Cavendish 1999).

Articles

 [1983] 3 All ER 230, [1983] Crim L R 567

 [2007] WLR 1567, [2006] EWCA Crim 2945, [2007] 1 WLR 1567

 [2007] WLR 1567, [2006] EWCA Crim 2945, [2007] 1 WLR 1567. England and Wales

court of appeal (Balii, 22 Jan. 2017)