Law Reform: Criminal Law

Law Reform: Criminal Law

 

 

Introduction

Criminal law is fundamental in promoting law and order in society. The rationale of criminal law is to ensure that victims access justice and that the offenders are fairly punished. Criminal law varies across different jurisdictions. Additionally, criminal law is not rigid but develops progressively through continuous review by different stakeholders. The UK has developed a comprehensive justice system that integrates criminal law as one of its legal dimensions. Nevertheless, the country’s criminal law is not free of gaps that require reform. Than and Heaton emphasises that ‘the English law is many areas in something of a chaotic state, it is often incoherent, illogical and lacking in clarity’. In an effort to reform criminal law, the UK government has sanctioned the Law Commission to push for reforms that will contribute to significant adjustment in criminal law hence improving its efficacy in delivering justice to both the victim and the offender.   

One of the areas that the Law Reform Commission should take into consideration in reforming the criminal law relates to the offences stipulated under the Offences Against a Person Act 1861 (OAPA 1861)[3]. The Act is comprised of different laws related to offences against a person. Nevertheless, some of the laws in relation to the stipulated offences require reform in order to align with the modern environment. The need to adjust some of the laws related to criminal offences is informed by the need to ensure that offences are punished in accordance with the degree of their seriousness. Some criminal laws are unfair, widely discriminatory, and disproportionately costly. This paper proposes the legal areas of criminal law that the Law Reform Commission should consider in reforming the UK criminal law. The analysis proposes reforms to a number of criminal laws related to criminalisation of acts of omission, assault and battery, and sexual offences.

Criminalisation of omission

Currently, England does not have a law criminalising omission or failure to act. The argument behind England’s failure to criminalise omission is that it would constitute an infringement on an individual’s autonomy. In spite of this view, failure to act can in some situations warrant conviction under criminal law. One of the areas of omission that the Law Commission should consider in criminalising omissions entails omissions related to violation of duties imposed upon an individual. Failure to punish acts of omission constitutes a significant legal gap that should be addressed. Williams asserts that ‘law on omission is in drastic need of reform because it is unclear in many circumstances what constitutes a duty and the rule needs to be more consistent’. Similarly, Ormerod and Laird assert that offences arising from pure omission are rarely addressed in the common law.  Therefore, common law has not adequately addressed the law of omission as an offence that requires the imposition of a certain degree of liability. However, in the process of reforming the law on omission, it is imperative for the Law Reform Commission to clearly stipulate areas in which acts of omission would result in legal liability. Amongst the areas that should be considered in reforming laws on omissions relate to duties arising from the assumption of care, familial duties, and duties created through endangerment.  Despite the argument that criminalising omission infringes an individual’s autonomy, acts of omission can also be viewed on the basis of morality. According to Martin and Laird, the rationale of criminal law is to foster morality in society. Thus, the fact that English law narrowly integrates acts of omission as an offence liable under criminal law hinders the effectiveness of the law in enhancing morality for the overall benefit of society.  Entrenching criminal liability for offence of omission is underlined by the need to promote morality in society. Subsequently, it is imperative for the Law Reform Commission to consider entrenching omission as an offence in order to promote social cohesion, which is a fundamental element of criminal law. However, in imposing liability on omission, it is imperative for the Law Commission to establish clear guidelines on the issues that should be criminalised as a result of omission.

Assault and battery

In addition to criminalising some aspects of omission, it is imperative for the Law Reform Commission to consider addressing the element of offence involving assault and battery, which is ranked as a non-fatal offence. Rosen defines a non-fatal offence as an offence that ‘interferes or threatens to interfere with another person’s bodily integrity’. Thus, criminalising assault and battery is critical in enhancing an individual’s well-being. However, there are some issues that the law should address in order to enhance the effectiveness of the law on assault and battery. One of the fundamental issues that should be taken into consideration relates to the definition of assault and battery. Currently,  under the OAP Act 1861, there is no clear definition of battery. Padfield asserts that the term assault has a narrow and broad definition.  Under the broad definition, the term assault constitutes both the crime of assault and battery, in which physical contact between the victim and the offender must be present in order for the crime of assault to be proven. The narrow definition of assault entails a situation in which physical contact is not a prerequisite for an offence to occur.  Under the narrow definition, assault occurs if a defendant instills a sense of fear of unlawful violence in a victim. According to Baird assault involves ‘any conduct by a defendant that, intentionally or recklessly, causes the victim to apprehend imminent unlawful personal violence’. Conversely, battery refers to conduct by a defendant that intentionally or recklessly results in unlawful violence towards a victim. 

 Currently, there is no clear distinction between the offences of assault and battery. This assertion is underlined in the case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. In this case, the appellant stopped on the police officer’s foot while reversing as directed by the officer. On informing the appellant that the car’s wheel was on the officer’s foot, the driver/ appellant initially abused the officer but later moved the car’s wheel off the officer’s feet.  The court was not sure whether to charge the appellant's action of deliberately or accidentally driving onto the police officer’s foot. However, after consideration of the facts, the court charged the appellant with assault. This case indicates the existence of a significant gap with reference to the definition of assault. As a result of the discrepancy in the definition of assault and battery, the two crimes are treated separately under criminal law.

In reforming the law on assault and battery, it is imperative for the Law Reform Commission to consider taking into account two main perspectives. One of the fundamental issues of concern entails entrenching the element of hostility as one of the aspects of reforming offences of assault and battery. The element of hostility is not clearly articulated under the current law on assault and battery. Use of force or hostility towards a victim is a requisite element in proving the offence of assault. On the other hand, Monaghan asserts that ‘ the degree of force required for a battery is very slight and no harm to the person is necessary’ (p.154 ). In the case of Cole v Turner (1705) 6 Mod Rep 149, Holt CJ argued that touching another person in anger is sufficient to prove battery. Thus, the defendant needs not to be hostile. The view that hostility is not a prerequisite in proving battery is underlined in the case of Faulkner V Talbot [1981] 3 All ER 468, in which the judge ruled that battery does not require one to be hostile, aggressive, or rude for it to occur. However, in the case of Brown [1994] 1 AC 212, the UK House of Lords ruled that hostile contact is critical in proving the crime of battery. 

In the process of entrenching the element of hostility, it is imperative for the Law Reform Commission to ensure that the concept of hostility is optimally defined. Defining the term ‘hostility’ will ensure that miscarriage of justice is avoided in the application of the law. This aspect is underlined in the case of JCC v Elenhower [1983] 3 All ER 230 in which the judge dismissed a case of battery under section 20 of the OAP Act 1861. In the case, the victim was injured below his eyebrow by a pellet fired by the defendant using a pistol. In spite of the fact that the pellet resulted in rupturing of the victim’s blood vessel, the judge argued that the continuity of the victim’s skin layers was not interfered with as a result of the act. This underlined the fact that reliance on the OAP Act 1861in making ruling on criminal offences might lead to unfairness towards the victim.  

The rulings on these cases underline the existence of significant discrepancy with reference to the definition of assault and battery. This aspect might result in ineffectiveness in the process of delivering justice with reference to offences involving assault and battery.  Apart from entrenching the element of hostility in reforming the law on battery, it is imperative for the Law Reform Commission to focus on broadening the law on assault. One of the approaches through which the Commission should take into consideration entails the integration of offence of ‘aggravated assault’, which should be established between the offence of recklessly or intentionally causing harm and other assault offences.  Therefore, offences of assault and battery should be adjusted to include threatened assault or assault and physical assault or battery. This move will significantly contribute to improvement in the efficacy with which justice is delivered to the victim. Integration of the offence of ‘aggravated assault’ will ensure that offenders are duly punished in accordance with the seriousness of their crime.

The Commission recommends the need to adjust the period of imprisonment with regard to offences of assault and battery. In its opinion, the Commission recommends that the maximum imprisonment period in relation to offence of aggravated assault should be set at 12 months. Under section 39 of the OAP Act 1861, an individual convicted of assault resulting in actual bodily harm should be liable for 3 years imprisonment. Similarly, section 20 of the OAP Act 1861 states that an offender who maliciously and unlawfully inflicts bodily harm to another individual will be guilty of misdemeanour and hence liable to a jail term not exceeding 5 years. However, in its quest to adjust the jail term for assault and battery offenders, it is imperative for the Law Reform Commission to consider setting longer jail terms for offenders involved in aggravated assault rather than setting the period at 12 months. This move will ensure that offences characterised by aggravating features such as inflicting bodily harm or injury to a person carry a heavier penalty. Conversely, reducing the period of imprisonment will significantly enhance fairness in the delivery of justice to offenders involved in cases of assault and battery.

Sexual offences

            Sexual offences are ranked as one of the fundamental offences against a person. Stone emphasise that sexual offences involve ‘interference with the victim’s privacy, and infringing on the most intimate areas of an individual’s personality.' In an effort to deal with sexual offences, the UK formulated the Sexual Offences Act of 2003 (SOA). The SOA 2003 was intended at collecting the gaps in sexual offences under section 20 of the OAPA 1861.   The SOA 2003 succeeded in streamlining a number of issues related to sexual offences by simplifying some sexual offences.  Monaghan accentuates that ‘the SOA 2003 is currently the main piece of legislation on sexual offences’. Hendy and Hutchinson assert that the laws on sexual offences under the OAPA 1861 were incoherent, cumbersome, and inadequate. In spite of the reforms on sexual offences articulated under the SOA 2003, there are a number of recurring issues that require streamlining under the SOA 2003. One of the fundamental issues that the Law Commission should take into consideration relates to informed consent, which constitutes a fundamental element in sexual activities. Nevertheless, the concept of informed consent is narrowly defined and contradictory, which might result in the miscarriage of justice in ruling cases relating to sexual offences.  This aspect is underlined in the case of R v Konzani [2005] EWCA Crim 706 and [2007] WLR 1567, [2006] EWCA Crim 2945, [2007] 1 WLR 1567. In these cases, the victims were infected with the HIV virus after engaging in penetrative sexual intercourse with the defendant.  In seeking legal redress, the victim sued the defendant, in which the defendant was arrested, charged, and convicted of rape. According to Wells, Quick and Lacey, section 20 of the OAP Act 1861 stipulates that ‘a person who engages in unprotected penetrative sex with a victim without informing the victim of his HIV status and subsequently infects the victim with the virus can be convicted of inflicting grievous bodily harm by transmitting the virus’. The SOA 2003 stipulates that consent occurs if a particular party who has adequate capacity agrees by choice to engage in sexual activity.  In these cases, the victim's decision to engage in sexual intercourse was a result of informed choice. Hence, the defendant did not engage in rape, which means that conviction of the offence of rape under section OAP Act 1861on the basis of informed consent might lead to wrongful conviction.  In reforming the law on sexual offences it is imperative for the Law Reform Commission to ensure that the concept of informed consent is adequately addressed by taking into consideration the defendant’s rights. One of the ways through which this goal can be achieved is by ensuring that the definition of informed consent encapsulates the risks associated with engaging in sexual activity without informed consent. This move will significantly enhance the delivery of justice to defendants. For example, wrongful convictions arising from inadequate definitions of informed consent will be eliminated. 

Conclusion

According to the above analysis, there is a need to undertake reforms on criminal laws related to sexual offences, assault and battery, and omission. The analysis reveals the existence of significant gaps in relation to the effectiveness with which the current criminal laws in these areas contribute to the delivery of justice to the victim and punishment to the offender. For example, the delivery of justice in relation to sexual offences is hindered by an ineffective definition of the concept of informed consent, which constitutes a fundamental law in addressing sexual offences. Conversely, the ineffective definition of assault and battery as one of the categories of offenses against a person has led to the delivery of unfair judgements. In reforming laws on assault and battery, the Law Reform Commission should consider entrenching a broad approach in order to optimally address the seriousness of the crime committed. It is also imperative for the Commission to incorporate the element of omission as an offence punishable under the law. Undertaking this reform will remarkably enhance the effectiveness with which criminal law contributes to the development of morality in society.

 

 

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