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Related Flashcards
Cards In This Set
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1. Description of Act
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JC Smith- "A rag bag of offences."
Law Commision Report 1993- "An ineffecient vehicle of controlling violence."
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2. Out of date- Victorian language
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'Maliciously' = Reckless following Cunningham (1957)
Contrasts to modern meaning of he word- 'Evil/Controlling'.
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3. Judicary interpreting unconsidered situations.
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Psychiatric harm=injury? Ireland&Burstow (1996) not considered in 1861.
Stretching basic concepts to encompass modern times- Biological harm- Dica (2004)
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4. Broad interpretation crossed the line regarding judicial interpretation powers.
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Breaks the separation of powers- AV Dicey
- Ignorance of 'Maliciously' in s18 following Mowatt (1976).
- Inflict/Cause = same thing! Lord Hope Ireland&Burstow (1996).
Why did parliament use them?
*Act was only meant to be one of consolidation of exisiting 1861 law confusion, not to define AR's and MR's(hence random sections).*
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5. D. is liable for an offence on the basis of its outcome (injury) rather than by degree of MR.
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- R v Roberts (1971) D. only intended to or was reckless to a battery, but was liable for s47.
- R v Mowatt (1976) No foresight of wounding nor GBH is needed providing D. intended or was reckless to inflicting some harm- s20.
*Counters to basic criminal law requirement that mens rea should relate to level of harm in AR.*
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6. Lack of structure- no logical hierarchy sentence structure.
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- s47 and s20 both are 5 years max imprisonment.
-s18 has up to life imprisonment despite sharing same level of harm as s20.
*Philosopher Hart: "Unfairness within sentencing means offences cannot be destinguished morally, leaving the law in disrepute".
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1998 Proposals for reform-
Based on Law commissions draft criminal code 1993 report.
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- Exisiting offences are overturned and separted accordingly:
- "Intentionally causing serious injury to another"
- "Recklessly causing serious injury to another"
- "Intentionally/Recklessly causing injury"
- "Assault"
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Advantages:
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- Consolidity of the act, much shorter than 1861 act.
- Defines key phrases such as 'Injury'.
- Old language is replaced- Recklessly replace Maliciously.
- Inflict/Cause debate in removed.
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Disavantages:
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Do we really need it?
-Case law appears to have sorted out the language problems with standardised definitions now being applied. eg:
-Wounding- JCCvEisenhower (1984)
-ABH- ChanFook (1994).
Act was drafted in 1998, it is now 13 years out of date. Unclearness in act if Objective (Caldwell 1981) or Subjective (RvG 2003) recklessness would be applied- Surely subjective?
Act does not resolve the problem relating to moral justification of offence reflective in sentencing:
- D. can be reckless as to serious injury yet can be tried summarily, wheras D. can intend it and face lup to life imprisonment.
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Conclusion:
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Law has satisfactory dealt with problems in 1861 act and there is no real need for reform.
Principal advantage would be the restoration of Parliamentary supremacy which is being undermined by the burden placed on the judicary to use all their interpreational powers to interpret the language within the act.
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