Evaluation

• Self Defence (1)

  • Hard for juries to determine if it was necessary to use force at all
  • Not all cases will be clear like Hussain and another or Buckley
  • Bird asks if the V was about to attack the D do they need to retreat then? Is force necessary?
  • Judge said she had to show she didn't want to fight him so she was convicted of wounding s20 OAPA 1861.
  • CA decided in line with s.76 that she didnt need to retreat.
  • Under LASPO  s.76 has been amended so whether D could retreated is for the jury to decide.
• Self defence (2)

  • Relates to cases where the D makes the mistake to use force.
  • Williams = D though the V was attacking a youth on the bus so attacked the V.
  • S76 makes it clear that if mistake not due to intoxication there can be a defence, O’grady. Even when the mistake made is unreasonable, it just has to be genuinely held.
  • Some argue this is too generous to the D as what about the need to protect the V whom D has assaulted.
  • If mistakes werent taken into account people who believe they are acting within the law, trying to protect others/ themselves would be wrongfully punished.
• Self defence (3)

  • if the D uses excessive force, Clegg, defence will fail.
  • It's an all or nothing defence; either succeed or fail.
  • It is fair that excessive force cannot be allowed as it would encourage vigilantism
  • Could also be argued that to reform the law a partial defence where the use of force in self defence is justified. Currently the introduction of loss of control under the Coroners and Justice act 2009 is a positive reform of this area of law because in cases where D has killed someoned the jury could be reluctant to see the D be free so a partial defence is better. 
• What was the situation involving Martin and the burglars?


  Martin believed he was in a dangerous situation and shot two burglars in the back.
• What did the courts conclude about Martin's belief in the dangerous situation?


  The courts confirmed that what the defendant believed is subjective, while the reasonableness of force is an objective test.
• What are the key points regarding the use of force in self-defense according to the courts?


  • Personality disorders are not considered in assessing reasonable force.
  • The defendant's belief is subjective.
  • The reasonableness of force is an objective test.
  • Householders can use more force to protect property than in standard self-defense cases.
• Self defence (5)

  • Doesnt apply where force is being used to recover stolen property.
  • R v Williams where the V and D belonged to rival gangs. V gatecrashed party, stole chain. D chased and stabbed V >Self defence = unsuccessful.
  • Criminal Law Act s3 doesnt allow for the use of force to recover stolen property. S3 defence is only available in relation to preventing crimes in progress.
  • Williams the judge held that the robbery was complete before the V left the flat.
• Self defence conclusion

  • There are problems with the law of self defence.
  • Juries can find it hard to decide whether it was necessary to use force
  • Defence seems too generous
  • Excessive force rule is too hard to succeed in
  • Not taking personality disorders into account is unfair.
  • Defence must be allowed for moral reasons
  • Loss of control and DR can act as partial defence
  • There is still room for reform of self defence to meet current needs
• Intoxication (1)


  • Seems unfair that the D can be guilty of a basic intent offence because they are reckless to doing something 'stupid' when they get drunk
  • in this sense voluntary intoxication as a defence isn't fit for purpose and should be reformed
  • Law Commision 1993 consultation paper said the law in Majewski was arbitrary and unfair but by 1995 they said the rules were fair
  • In Richardson V Irwin court moderated their view
  • Courts accepted that if D's wouldnt have realised the risk when sober then they shouldnt of been considered reckless
• Intoxication (2)


  • problem with how intoxication applies to specific and basic intent offences.
  • Sheehan and Moore D couldn't form intent for murder so were found guilty of manslaughter. They couldn't be acquitted because the Majewski rules say its a partial defence to specific intent offences
  • The difference between some specific and basic intent offences seem arbitary
  • LC in 'intoxication and criminal liability 2009' said it would be better if the terms 'basic and specific intent' were removed
  • Instead use MR of integral fault element and those were MR is not an integral fault element
• Intoxication (3)


  • Problems with involuntary intoxication
  • inconsistency between the D's treatment in Kingston and Hardie.
  • Kingston D was unable to plead involuntary intoxication as he would of formed MR of sexual assault as a paedophile either way
  • D wouldnt be liable of basic intent offence where prosecution rely on recklessness as in Hardie making it unfair for people like KIngston case
  • LC made no proposal to change law on involuntary intoxication. Any new law should reflect the law as stated in Kingston. LC isnt recommending that involuntary intoxication is in urgent need of reform
• Intoxication (4)


  • there are competing interests of personal autonomy( having choice to take intoxicating susbstances) and social paternalism
  • intoxication increases harm and anti social behaviour > 1/3 of DV say abuser has been drinking beforehand
  • CJS tries to balance the rights of the D and V where in this way it is fair
  • However the system could go further by recognising the difference between legal and illegal drugs by giving more severe sentencing for illegal drugs
• Intoxication Conclusion

  • argument that the law on voluntary intoxication is not fit for purpose as being reckless as to being drunk isnt identical to taking the risk of committing an offence
  • its unjust that some have fall back offences and others don't
  • LC say the law on intoxication is as it is so it balances the interests of both parties.
  • Law on involuntary intoxication works well as overall those who don't choose to become drunk and cannot form MR aren't held responsible for their actions other than few examples like Kingston
• Assault (1)


  • no statutory definition of assault
  • 'common assault' refers to assault or battery
  • charged under CJA 1988 but defined through case law
  • much better if assault defined in a statute
  • LC recommended assault be known as 'threatened assault' and battery 'physical assault'
• Assault (2)


  • out of date
  • 17th century case of Tuberville still used today
  • modern cases should be used instead
  • clearly shows the law on assault is unclear, inconsistent and needs updating
  • strong disadv as lawyers can't advise clients
• Assault (3)


  • language issues - lack of clarity regarding the meaning of 'immediately'
  • Smith V Woking Police held 'immediate' doesn't mean instantaneous but instead means imminent
  • Burstow/ Ireland have also confused the meaning as sending threatening letters or making silent phone calls can be seen as an assault
  • if there is a lack of clarity it can lead to inconsistency in application of future law leading to unjustice
  • counter to this, it allows the judges to see letters, silent phone calls and use of words as assault
• Assault Reform


  • LC 2015 report - 'Offences Against the Person - Modernising the Law on Violence' suggests there should be a newer clearer act thats easier to understand
  • confusing language should be removed
  • assault would become 'threatened assault'
  • become clearly separate from battery
• Assault conclusion


  Gov have been asked to change the law in 1993,1998 and 2015 but yet to happen so it still remains problematic/ unjust
• Battery (1)


  • 'force' in AR is misleading
  • can refer to slightest touch, Collins V Wilcock - courts said touching to get someones attention is fine as long as no more physical contact was used
  • problem is 'force' could be misinterpreted
  • if force is confusing to juries they may come to the wrong conclusion about the D's guilt
• Battery (2)


  • there is no need for the V to suffer any injury for the AR of battery to be fulfilled
  • shown in Thomas where touching clothes was sufficient enough and Collins V Wilcock where V's arm was grabbed but no mark left
  • seems unfair D to be convicted of battery if they haven't actually caused any harm or pain
  • however V's should be protected from unwanted application of force - V's like girls in thomas woldnt have any redress under s.39 CJA
• Battery (3)


  • overlap between battery and ABH s.47 OAPA 1861
  • injuries like grazes, scratches, minor bruising, swelling and black eyes can be charged as battery
  • these can constitute as ABH as they are 'more than trivial but less than GBH' - chan fook
  • makes the law inconsistent and uncertain
  • doesn't make the V feel better as their injuries are downgraded in lesser way which carries a lighter sentence
• Battery Reform 


  • 2015 report 'Reform of Offences Against the person' suggests battery be known as 'physical assault'
  • suggested the new offence of 'aggravated assault' be introduced which involve causing injury to V
  • improve the law as the wording would be updated and clearer
  • clearer separation by the hierachy of offences
• Battery conclusion

  gov asked to change the law in 1993,1998, 2015 but yet to happen so law on battery remains problematic, unfair and confusing
• ABH (1)


  • Overlap between battery and wounding s.20
  • injuries like grazes, scratches, minor bruising, swelling and black eyes can be charged as battery
  • these can constitute as ABH as they are 'more than trivial but less than GBH' - chan fook
  • small cuts on the wrist can be ABH but Eisenhower defines a wound as a 'cut in both layers in skin'
  • makes the law inconsistent and uncertain
  • doesn't make the V feel better as their injuries are downgraded in lesser way which carries a lighter sentence
• ABH (2)


  • Language problem as ABH is not defined in s.47 OAPA 1861
  • satisfactory definition found in Chan Fook but lawyers had to wait 133 years for this
  • LC want to replace s47 with 'intentionally or recklessly causing injury to another person'
  • current law is unfair however it is flexible especially around chan fook and smith v woking police
  • jurors misinterpret 'bodily' as physical harm and forget about psychiatric harm too
• ABH (3)


  • MR is same as assault/battery but sentence time is much greater than assault/battery
  • assault/battery = max 6 months
  • ABH = max 5 years
  • Surely D should have higher intent to be convicted of ABH, ABH currently contradicts correspondence principle
  • law may seem fair but LC say its extraordinary and unjust that a person needs to be reckless and not intend actual bodily harm yet charged with ABH
• ABH Conclusion

  lack of clarity in terms of language, mismatch between AR and MR and its overlap with other offences under OAPA 1861 isnt currently fit for purpose
• GBH s.20(1)

  • using old fashioned language like 'maliciously' and 'inflicts' are problematic
  • MR of s.20 states D must have acted 'maliciously'
  • Cunningham made it clear that maliciously means intention of subjective recklessness
  • 'inflict' means the same thing in 'causes' as Burstow established
  • old fashioned language is a barrier to justice
  • LC recommended 2015 that s.20 be replaced with the offence of 'recklessly causing serious injury to the V'
  • These recommendations would clear confusion and improve the structure of offences
• GBH S.20(2)

  • S.20 & S.47 have same maximum sentence yet there are larger gaps between s.20 and s.18
  • there should be some attempt to grade different offences of violence
  • LC recommendations of s.47 = 5 years max s.20 = 7 years max s.18 = life as a maximum
  • unfair that s.47 and s.20 carry same sentence
  • fairer if LC recommendations were enacted so that there is a difference between offences
• GBH S.20 (3)


  • problems with injuries that qualify as GBH and wounding
  • small cut could break 'the whole skin' could be charged as s.20 even as a minor cut
  • bruising is seen as GBH on a child, Bollam, which makes it even more confusing
  • unfair for small cut to be considered s.20
  • LC say small cut be charged under s.47 'intentionally/recklessly causing injury to v' or if a very minor cut like scratch be agravatted assault
  • brings more justice to D's and fairer law
  • more severity surrounding child offences tho as its fair, Bollam
• GBH S.20 Conclusion


  The problems regarding s.20 are all related to the old fashioned and misleading language used in OAPA 1861. Until LC recommendations are brought in the law remains unjust/ unfair / unclear
• GBH S.18 (1)


  • language problems surrounding use of word 'malicious' which has caused many problems in interpretation
  • 'malicious' is confusing and has led to many appeals, was unclear until cunningham where it simply meant intention or subjective recklessness
  • old fashioned language is a barrier to justice
  • LC recommended 'malicious' should be removed from new statute and replaces with 'intent' instead
• GBH S.18 (2)


  • does inflict mean the same as cause
  • MR S.18 = 'cause' a wound/GBH whereas s.20 = 'inflict' a wound/GBH
  • means cases conflict between the difference of words
  • HL decided in Burstow that they meant the same thing
  • confusion creates a barrier to justice
  • LC 2015 recommended s.18 be replaced with 'causing serious injury to the V with intention to cause serious injury'
  • 'inflict' would never be used which clears ambiguity
• GBH S.18 (3)


  • problems with injuries that qualify as GBH and wounding
  • small cut could break 'the whole skin' could be charged as s.18 as long as they had serious intent to do it
  • bruising is seen as GBH on a child, Bollam, which makes it even more confusing
  • unfair that small cut to be considered s.18
  • LC say small cut be charged under s.47 'intentionally/recklessly causing injury to v' or if a very minor cut like scratch be agravatted assault
  • brings more justice to D's and fairer law
  • more severity surrounding child offences tho as its fair, Bollam
• GBH S.18 Conclusion


  Problems with s.18 relate to the old and misleading language used in OAPA 1861 and reliance of case law to define injuries and the meaning of key words like intent and malicious. Be much better if LC recommendations were implemented