Evaluation

• The aim of the Commission is to ensure that the law is:

  Fair, modern, simple & cost effective
• what the Law Commission has said about the current law on non-fatal offences:

  The Law Commission announced in 2013 that the Ministry of Justice asked them to carry out a review of the non-fatal offences.

  In their report the Law Commission criticise the current law, stating:

  The Act has been amended many times leaving the law incoherent and confusing yet used in over 26,000 prosecutions a year.
• One of the main criticisms of the current law is that it is a complex and confusing mix of:

  
  

  • common law (assault and battery) and
  • statute (s47, 20 and 18).
• 3. Focus on the problematic wording. Do this by comparing the offences of s47 and s20:

  S47 refers to actual bodily harm which has been defined as ‘hurt or injury’. S20 refers to a wound which is a breaking of the whole skin.

  A cut could be charged as ABH or GBH.  The Act isn't clear on this point.  This has led to the CPS creating charging standards to help prosecutors decide which to go for.

  However, they are not legal rules but guidance and could be applied inconsistently across the UK.
• 4. focus on the illogical sentencing structure. Again, focus on s47 and s20:


  It would seem unjust that s47 and s20 attract the same maximum sentence of 5 years when s20 is a more serious crime.

  Fortunately, the Sentencing Council have provided judges with detailed guidelines for sentencing the two offences. 

  This will help overcome the inadequacies of the Act and ensure sentencing is in line with the offence committed.
• 5. explain the LC’s reform suggestions for all three sections and how this would improve the law on non-fatal offences:


  In 1998 and again in 2015 the LC suggested that s18 be replaced with:

  ‘intentionally causing serious injury’ (max life).

  This would improve the law by:

  Making the language clearer removing GBH and replacing it with serious injury which is much easier for a jury to understand.

  It also makes it clear that it must have been done intentionally.  
• S20 replaced with:

  ‘recklessly causing serious injury which defendant foresees’ (max 7 years)


  This would improve the law by:

  Making the language clearer and simpler by taking out reference to wounding which could be either ABH or GBH. 

  It also makes it clearer that the defendant must have taken a risk and foreseen it could lead to serious injury.

  Increasing the sentence would also make sense and differentiates it from ABH.
• s47 replaced with:

  ‘intentionally or recklessly causing injury where defendant foresees risk of some injury’ (max 5 years). 


  This would improve the law by:

  Taking out reference to assault and battery and ABH.  Makes it clearer by simply referring to injury and how the mens rea can be established.
• Final points: Aggravated assault:

  The most significant change would be creating a new offence of aggravated assault as many offences involve an injury too serious to be  battery but not serious enough for ABH. 

  This causes problems for prosecutors deciding which offence to charge a suspect with. 

  New offence would be summary only and would deal with those who should be convicted of a more serious offence as they have caused injury but don’t deserve a sentence over 12 months.
• Transmission of infectious diseases with the focus on Dica and covid related assaults.

  In Dica the court stated that GBH can include the transmission of an infectious disease.
• The problem raised it’s head during the 2020 covid-19 pandemic where there were a number of cases brought against people who coughed and spat at rail workers and police and claimed to have covid.

  The CPS prosecuted some of these cases but were limited to assault as it could not be proved the victims caught covid as a result of the defendants actions.

  See links:
• Prof. J.C. Smith says:


  •“a ragbag of offences” with “no consistency” and is

  “complicated, obscure and old-fashioned”
• Paragraph two should focus on the fact that the law is outdated

  The Act, created in 1861 to consolidate non-fatal offences into one law, has struggled to adapt to modern society. Initially, there was little understanding of mental health issues. It wasn't until the Chan Fook case that the courts recognized ABH as including psychiatric harm, and in the Burstow case, serious psychiatric harm was classified as GBH. Despite these developments, there remains a lack of clarity on when harm is considered serious.