Introduction
Criminal law is central to the success of a society. The significance of criminal law is underlined by the fact that it aids in protecting individuals and their property and punishing parties that deserve punishment. Subsequently, criminal law is critical in promoting order in society (Martin & Storey, 2013). The nature of criminal law is dynamic and varies across jurisdictions. The dynamism of criminal law arises from changes in morality and behavior in society. Thus, criminal law must be effective in addressing emergent issues or change like offences. Monaghan (2011) emphasizes that criminal offences have undergone extraordinary evolution as evidenced by the emergent of different categories of offences,, amongst them offences against a person. Herring (2016) notes that offences against the person entail diverse types of offences against a person, such as rape, murder, and non-fatal offences against the person. Examples of non-fatal offences include attempted murder, assault that gives rise to actual bodily har,m and threat to kill. Non-fatal offences against the person are governed by the Offences Against the Person Act 1861 (Herring 2016).
Despite its significance in enhancing law and order in society, the Act about non-fatal offenses against the person is considered ineffective, and hence the need for reform. One of the critics, Lord Chief Justice of England and Wales, RT. Hon The Lord Thomas of Cwmgiedd argues that the legislation is out of date and in some areas obsolete; new ways of offending are not adequately captured (Law Commission 2010). In light of this aspect, this paper evaluates how the law of non-fatal offences against the person is relevant in addressing emergent issues on non-fatal offences against persons and the need for reform in order to address the areas in which it is obsolete.
Law on non-fatal offences against the person
The 1861 Act,, on which the non-fatal offences against the person are founded,, has been widely relied on in prosecuting diverse criminal offences. According to the Law Commission (2017), the Act is widely relied on in prosecuting approximately 26,000 cases that are recorded annually. The Law Commission (2010) opines that the frequent amendments that have been undertaken on the Act to improve its effectiveness have made the Act confusing and incoherent. Molan (2001) asserts that the OAPA 1861 is considered full of obscure language, which has necessitated numerous efforts to appeal. Past cases, viz., R v Parmenter [1992] 1 AC 699, R v Brown [1993] 2 All ER 7,5, and R v Parmenter [1992] 1AC 699, have depicted that the law has been erratic and unsatisfactory.
The law on non-fatal offences against a person mainly focuses on five main types of offences that include assault, battery, assault leading to aggravated bodily harm (ABH), malicious wounding/inflicting grievous bodily harm (GBH), and wounding/causing GBH with intent. These crimes are hierarchically structured according to the OAPA 1861and carry varying degrees of sentence (Law Commission 2010). Nevertheless, Hannibal and Mountford (2013)opines that there is a remarkable gap wconcerningthe length of sentence subject to offence against a person that is considered lowest, viz. common assault, which carries a maximum of 6 mmonthsand the ollowing crime, ABH, which carries a maximum sentence of 5 years. Lacey, Wells, and Quick (2003) argue that it is odd for the maximum penalty for inflicting grievous bodily harm or wounding to carry a maximum sentence of 5 years under Section 20 of the OAPA 1861, which is equivalent to occasioning actual bodily harm under Section 4. Despite the existence of a slight difference about the case of Faulker v Talbot, which involved battery, and R v Miller, which involved injury, a party who engages in battery can be imprisoned for a maximum period of 6 months, whereas ABH has a maximum penalty of 5 years (Molan 2001). This aspect indicates that the hierarchical structuring of the cases does not systematically take into account the duration of sentence. According to the Law Commission (2010), the offences stipulated under sections 20 and 47 of the OAPA carry equal maximum sentences even though section 20 outlines more serious offences, viz. GBH compared to ABH. Child and Ormerod (2017) contend that the current law on non-fatal offences against the person attempts to establish a ladder of offences depending on the type of harm that an individual causes.
The law’s attempt to classify harm may result in ineffective classification. For example, a simple needle prick under may be classified as wounding, hence placing such an offence alongside GBH (Child & Ormerod 2015). During its conception, the 1861 Act foresaw a situation whereby a simple needle prick would have resulted in a wound, hence resulting in infection and death due to the poor development in the medical field. Nevertheless, such a situation is not possible in the contemporary environment owing to the development in the medical field that has been witnessed. It is wrong for the Act to categorize a needle prick, which can heal in minutes, with offences involving grievous bodily harm (Herring 2016). In reforming the OAPA 1861, it is imperative for a clear hierarchy of non-fatal offences to be established. This aspect is critical in ensuring that the law is effective in imposing criminal liability on parties that commit the offence. For example, in establishing criminal offences, the ladder of harms must establish a clear distinction between different concepts, ‘anticipation and application of force and ‘serious injury ' and injury’. This aspect will play a fundamental role in ensuring that the right punishment is accorded to perpetrators depending on the type of offense committed (Child & Ormerod, 2015).
Than and Heaton (2013) emphasize that the current law on non-fatal offenses against the person does not have a clear boundary on offenses relating to GBH and ABH. As a result of lack of optimal definition of non-fatal offences against the person, it is the prosecutor who have the option of defining the nature of offence committed. This might lead to inconsistency or failure of criminal law to proportionately assign criminal liability to the perpetrator of such a crime. For example, the prosecutor may charge the lowest level of crime to a perpetrator. This means that the magistrate court might not appropriately assign criminal liability to a perpetrator who has caused actual injury.
In addition to this aspect, another area that has made the law on non-fatal offences against a person obsolete and out of date relates to the language used and lack of flexibility (O’Riordan 2003). The Law Commission is of the view that the language used in the law on non-fatal offences against the person is complex and obscure. For example, the OAPA 1861 uses the words ‘malicious’ and ‘grievous’, which are ot largely used in the contemporary legal environment. Child, Ormerod and Smith (2015) opine that contrary to the current law, which requires courts to provide a comprehensive translation and interpretation of legal terms such as ‘grievous’, ‘malicious’, and inflict, this is not a requirement under the OAPA 1861. Herring (2016) emphasizes that the language used under the OAPA 1861 is unclear and hence might result in strained interpretation by the judges. Therefore, the need to reform the Act by entrenching modern, clear, and comprehensible language is necessary.
Reforming the law by providing a clear definition of the law on non-fatal offences against a person is not only essential in assisting courts to optimally adjudicate over such offences, but is also critical in guiding the public on behavior and acts that could constitute non-fatal offences, hence warranting criminal liability on the perpetrator. The process of reforming the law should further take into account the various types of harm against another person. One of the issues that should be considered includes specifying the types of harm. Examples of harms that should be considered for inclusion include figurings, dismembering, and disfiguring. Inclusion of theseoffensess in law will aid in clear definition of the types of harm (Child, Ormerod & Smith 2017).
The inappropriateness of the OAPA 1861 is also underlined by the fact that it does not appropriately address non-fatal offences against the person. For example, Section 47 of the OAPA 1861 postulates that for a party to be considered to have committed an offence under the Act, the defendant must prove that assault or battery has been committed. According to Child and Ormerod (), this requirement under section 47 is strange in that if the defendant has caused bodily harm, the point of concern is why there is need for condition liability to demonstrate physical contact or fear of such contact. In addition to the above aspects, the OAPA 1861 does not take into consideration some of the non-fatal offences against the person. Examples of non-fatal offences against the person that the OAPA 1861 has not taken into consideration include gassing and poisoning. Herring (2016) asserts that these offences are not included in most criminal programs.
In reforming the Act, it is imperative to include emergent offences. This assertion is supported by the case of Lynsey [1995] 3 All ER 654 in which Henry LJ argued that there is a need to undertake comprehensive reforms on the non-fatal offences against the person to make rational and simplify it, hence making it trap-free (Than & Heaton 2013). As presently constituted section 47 of the OAPA 1861 stipulates that it is a requirement for an assault. This aspect highlights the irrationality inherent in the law on non-fatal offences against the person. In reforming the law, it is important to entrench rationality in the law, for example, by requiring the victim to simply prove that the defendant caused bodily harm (Herring 2016).
In the case of R v Cunningham [1957] 2 QB 397, the Court of Appeal held the defendant was criminally liable for involvement in an act (gassing) which endangered the life of the litigant. This indicates the prevalence of a considerable gap with reference to the efficacy of the Act in addressing emergent issues. In making reforms to the law, hence making it relevant to the current situation, it is imperative for the emergent areas of criminal lawabouto non-fatal offences against the person. In doing so, the law on non-fatal offences against a person should not be limited to the five categories outlined in the hierarchical structure of the Act (Martin & Storey, 2013). Than and Heaton (2013) postulate that some of the offences that the reforms on the law should consider include resisting arrest offences, threatening to kill or cause serious injury to another party, and intending or being reckless to cause serious injury.
Conclusion
The analysis reveals that the law in relation to non-fatal offences against the person, as stipulated under the OAPA 186,1, is characterized by significant gaps. Subsequently, the law as currently constituted might be ineffective in dealing with emergent issues involving non-fatal offenses against the person. Some of the notable areas in which the law on non-fatal offenses against the person requires reform relate to the integration of a clear and modern language. The current law is characterized by obscure and unclear language, which means that it is the judges who have the discretion to make a ruling in relation to their understanding. A further analysis indicates that the hierarchical organization of non-fatal offences against the person is ineffective concerning the length of sentence or penalty that the offences carry. The review also indicates that some of the laws are irrational. Therefore, it is imperative for a comprehensive reform of the law on non-fatal offenses against the person to be undertaken to improve its efficacy. In reforming the law, some of the issues that should be taken into consideration entail improving the rationality, language, and clarity of the law. Moreover, the law should take into consideration the emergent cases on non-fatal offences against the person to adequately and effectively assign criminal liability to the party.
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