Offences against the Person: The Need for Reform
| Published date | 01 May 1995 |
| DOI | 10.1177/002201839505900205 |
| Date | 01 May 1995 |
| Author | Alan Reed |
| Subject Matter | Article |
OFFENCES
AGAINST
THE
PERSON:
THE
NEED
FOR
REFORM
Alan Reed*
Introduction
The current law in respect of offences against the person has been referred
to as 'devoid of any principle', I'antiquated?and 'little short of scandalous'.3
It
is unfortunately impossible to disagree with such criticism. Three recent
cases have only served to illustrate the manifest absurdity
of
the present
position as this article will demonstrate."
It
defies belief, as the Law
Commission stress,' that there is a total lack of coherence in ss 20 and 47 of
the Offences Against the Person Act
1861
between the consequences for
which the accused is punished and the mental state that is sufficient for his
conviction."
It
is illogical that both the lesser offence of assault occasioning
actual bodily harm under s 47 should be subject to the same maximum five-
year punishment as the greater offence of inflicting grievous bodily harm
under s 20. The lack of any reasoned scale of offences does little for judicial
fairness and efficacy.
It
is also quite staggering that consideration of s 20
should recently reappear before the House of Lords in R v Mandair
[1994]
2 WLR 700 barely two years after it.was extensively examined in R v Savage
[1991]
4 All ER 698.
It
demonstrates once again as Lord M ustill stressed in
Mandair (at p 709) that this unsatisfactory statute is long overdue for repeal
and replacement by legislation which is soundly based in logic and expressed
in language which everyone can understand. The implementation of the
Criminal Law Bill on non-fatal offences proposed by the Law Commission
is an urgently needed improvement to the law. Appellate courts have
struggled without success to apply consistent decisions and interpretation
to the dinosaur
1861
Act.7
It
is noteworthy to consider the lament of the
Court
of
Appeal (Criminal Division) in R v Parmenter
[1992]
I AC 699, at
p
711
that:
At a time when [middle-rank] criminal violence is a dismal feature of modern
urban life, and when convictions and pleas of guilty on charges under s 47
occupy so much of Crown Court lists it seems scarcely credible that 129 years
• MA (Cantab), LLM (University of Virginia), Solicitor and Lecturer in Law.
1Simon Gardner, 'Reiterating the Criminal Code' (1992) 55 MLR 839, at p 839.
2Andrew Ashworth, Editorial [1992]Crim LR 393.
JA T H Smith, 'Legislating the Criminal Code: The Law Commission's Proposals'
[1992]
Crim LR 396, at p 400.
4See R v Mandair [1994]2 WLR 700; R v Chan-Fook [1994]2 All ER 552; 59 JCL 59 and
R v Gelder (1994) The Times. 25 May.
SLaw Commission Report No 218, Legislating the Criminal Code: Offences against the
Person and General Principles (1993) (hereafter, Law Com No 218).
6Law Com No 218, para 12.26
7DPP v K
[1990]
I WLR 1067; R v Spratt [1990] 1 WLR 1073; R v Savage [1992] 1 AC
714.
187
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