Evolving Nature Criminal Behavior.

Introduction

The Offence against Persons Act was meant to consolidate and amend the Statute Law of England and Ireland relating to Offences against Person. The offences included in the Act are but not limited to murder, Manslaughter, attempt to commit murder, attempting to choke among others. Specifically, assault is covered in section 47 of the section, while wounding or inflicting grievous bodily harm is highlighted in section 20. In addition, grievous bodily harm with intent is covered under section 18. The paper is of the view that we are in post modernity and the circumstances that existed by the time the act was enacted are totally different. The society is grappling with new societal and legal challenges that must just be overcome by new ideas that are cited thus, only currently available in our criminal justice system. This is because many of the offences in the Act have been restricted thus; interpretation is only available in the traditional sense.

According to Lord Mustill, in the case of R v Mandair, he stated that the statute is an unsatisfactory law that is long overdue for repeal and that it should be replaced by an Act that is soundly based in logic and expressed in a language, which everyone can surely understand without restrain. The shaky construction of offences in the Act manifests itself from the way in which the offence of assault is construed. Typically, the consideration of assault at common law is not necessarily meaning hitting someone where the perpetrator recklessly or intentionally causes another party to apprehend an immediate and unlawful force. In addition, the Act does not show any difference between assault and battery. In procedural sense, assault and battery are very different offences that belong to distinct categories taking into cognizance the circumstances at hand. The import of the statement is that one cannot be charged and prosecuted both in the count of assault and battery, and this is clearly presented in the case of DPP v Little .

It is also noteworthy that those charged with common assault upon being found culpable face a summary sentence and is liable upon conviction to a fine not exceeding level 5 on the standard scale to an imprisonment for a term not exceeding six months or to both on the discretion of the presiding officer. In verity, the elements that are in assault as an offence include the act itself, which is the act reus and the apprehension. The third one is the immediate violent action that has to be exhibited for it to hold any sway. In other words, it may be framed as an intention to cause apprehension of immediate unlawful violence or rather subjective recklessness as whether such apprehension is caused.

The language used in the Act further complicates the overlaps in the whole act concerning the offences. For instance, the words such as grievous and malicious do have a bearing in the modern legal dispensation and the courts usually find it difficult to use them. In the case of DPP v Smith, the term grievous has been construed to mean really serious. Malicious on the other hand has been connoted the interpretation of being verily unrelated to the obvious; concerning malice, the overall meaning of it relates to something very evil and this is the way courts have generally regarded it to mean. The offences are written in a language that is outdated and obscure. Apart from the obscurity, the manner in which the offences are structured and framed is wanting as it reflects the old era of legalese. In fact, the offences as set out in sections 18, 20 and 47 should be overhauled completely through repealing them respectively. Assault also means something that depicts a picture of attack that is physical in nature, which requires no physical contact.

The legislation in the Victorian era lacks coherence in all its material and collateral aspects together with procedural and substantive view. The reason is that the offences therein scripted are not outlined in a manner that gives them the desired principles that they should elicit. Inasmuch as many may argue or imagine that the said offences ought to be framed in some criteria depicting importance, the reality is confirmed as the intention of the defendants result into specific offences that are thereby crated. Battery is an offence that does not in itself connotes a clear sense of meaning in the Act. In general scope, it is expected that it should include the use of force that is higher than the one required in law. The courts of law have been consistent in averring that whenever the word like bodily harm is used by dint of sections 18, 20 and 47, psychiatrist harm is also included therein. This is clearly deduced in the case of R v. Ireland .

Whenever the word “inflict” is applied as worded in the very Act, the courts have had considerable challenges, for instance, in the case of R v Clarence. It has long been held that inflicting pain also requires proof of battery or an assault. In one of the cases involving assault, the obiter of the court was that when there is direct application of force, it is enough to actually prove of battery or assault. Another intrigue that is involved in the Act is that there is no statutory definition of assault in the laws of the land.

There is also a confusion existing between intentional touching that one may effect on another without consent to do so and actual bodily harm (ABH). While on one side the act of touching someone without consent amounts to an offence of batter, any hurt that someone sustains or injury that she sustains that is resulted by interference from the person perpetrating so, is surely actual bodily harm. This very old Act provides no boundary that exists between actual bodily harm and grievous bodily harm thus the jury finds himself in a very difficult situation in determining whatever will constitute serious harm. This may lead juries to have differing opinions, which may not be good for the jurisprudence of our courts.

Another conspicuous overlap that exists in the Act is the manner in which the offences therein highlighted are effective in the current legal dispensation. Some offenses are not likely to be punished due to the manner in which they are framed. In fact, whenever such crimes are committed, there is high probability that the victims will not report such injustices to the authorities, which follows logically that the prosecution will not charge the culprits. In this category, gender based violence is likely to thrive as a result of the loophole that exists in the law. As a result, whenever such cases are before courts of law, the prosecutors have the general tendencies of preferring charges against the accused persons under offences that are by and large lesser n nature thus inviting the accused person to plea bargaining. This is not good jurisprudence. The law must be developed

The reforms necessary for the abovementioned overlaps are welcome and the paper would not hesitate to suggest that keen regard be had on sections 18, 20, and 47 in particular. As they have resulted into procedural issues of law on serious tenets. The paper would suggest that there be replacement of offence related to causing intentional harm causing injury with the principle of intent that is already established. In this way, the end result would be that an intention may involve such a conduct which may include a disease.

Additionally, the contents of sections 22, 23 and 24 should be reviewed and if possible be replaced completely. This would ensure that the offences would be restricted in nature in a way that advances technological development and the way in which the crime routes and methods are suddenly changing. If the Act cannot be repealed as the desire of many including those in the bench, new structures should then be put in place to ensure that it conforms to the modernity and its aspirations. For instance, sentence that carry life imprisonment should not be placed on some offences that are very minor in nature.

Conclusion

In conclusion, it is crucial that the law should be up to date and more precisely, it should abide with the established developed jurisprudence of modern common law that is devoid of too much harshness towards the suspects. The social censure should not make things that harsh to those who have not been proven guilty. The parliamentarians should be at the forefront of making the necessary changes to the law relating to non-fatal offences so that the criminal justice system may have a logical criteria of ensuring that it adheres to the current development in legal spheres.

References

• R v. Ireland [1997] 3 WLR 534
• R v Clarence (1889) 22 QB 23
• DPP v Smith [1961] AC 290
• R v Mandair [1995] 1 AC 208
• DPP v Little [1992l 1 All ER 299

Website

• Love, S. (2014). The Massively Outdated Offences against the Person Act 1861 Shows How Well the Common Law System Works Retrieved [online] from [accessed on 20th April, 2019]

Books and journals

• Gibson, M. J. R. (2016). Getting Their" Act" Together? Implementing Statutory Reform of Offences against the Person. Criminal Law Review, (9), 597-617.
• Demetriou, S. (2016). Not giving up the fight: a review of the Law Commission’s scoping report on non-fatal offences against the person. The Journal of Criminal Law, 80(3), 188-200.
• Cunningham, S. (2017). Driving Offences: Law, policy and practice. Routledge.
• Ormerod, D., & Laird, K. (2018). Smith, Hogan, and Ormerod's Criminal Law. Oxford University Press.
• Loveless, J., Allen, M., & Derry, C. (2018). Complete criminal law: text, cases, and materials. Oxford University Press.
• Lacroix, R., O’Shaughnessy, R., McNiel, D. E., & Binder, R. L. (2017). Controversies concerning the Canadian not criminally responsible reform act. Journal of the American Academy of Psychiatry and the Law, 45(1), 44-51.
• Cunneen, C., Goldson, B., & Russell, S. (2018). Human rights and youth justice reform in England and Wales: A systemic analysis. Criminology & Criminal Justice, 18(4), 405-430.
• Baker, J. (2019). Introduction to English Legal History. Oxford University Press.