The law on the non-fatal offences against the person has been subjected to frequent criticism but little reform has been attempted. Evaluate the current law and suggest what reforms may be desirable.

It is now 23 years since the Law Commission published its major review of the non-fatal offences against the person, 18 years since the Labour Government, elected in 1997, indicated its intention to substantially implement those proposals and nearly a year has passed since the Law Commission published its further conclusions, after yet another review. However, there still seems to be no prospect of any early action to reform the law. Of course, this means that the major criticisms of the current law and possible reforms to it, are by now very well-rehearsed. As such, it is hardly surprising, that typically, students were very familiar with both criticisms and reform proposals, even if the range and depth of analyses varied enormously. However, what continues to be a little disappointing is that answers were often very formulaic and that more subtle criticisms and proposals for reform were sometimes advanced without any real evident understanding. It is also a little disappointing that so few students took the opportunity to extend the range and depth of their analyses by introducing some of the very substantial and very interesting criticisms of the current law on consent, as it applies to the non-fatal offences against the person. Exploration of such criticisms was not a requirement but it certainly would have added a little to some answers. The emphasis tended to be on criticisms of the structure of the provision for non-fatal offences, in terms both of lack of codification and of the alleged chaotic organisation of the Offences Against the Person Act 1861; the antiquity of many of the offences contained therein and the antiquated language and concepts it employs and embodies. Stronger answers examined language in detail and did not merely use words such as ‘malicious’, ‘actual’ and ‘grievous’ to illustrate antiquity without further explanation; which was a failing of some of the weaker answers. There was also some extensive analysis of developments in the meaning of ‘bodily harm’, as the law seeks to keep pace with changes in society; related, say, to developments in technology, or to the consequences of changing habits and lifestyles. This was often illustrated by reference to cases such as: Ireland [1997] and Burstow [1997] on ‘stalking’; by cases such as Chan-Fook and DPP v Smith on varieties of bodily harm; and by Dica [2004] and Konzani [2005] on consent and transmission of sexually transmitted diseases. These developments were sometimes cited as evidence of the failure of formal processes of reform of the law. Conversely, some students argued that they represented a considerable success story, in which enterprising judges had stepped in to ensure that case interpretation kept the law appropriately up to date. Students were also very adept at revealing sentencing anomalies and in relating them to comparisons between the actus reus and REPORT ON THE EXAMINATION – A-LEVEL LAW – LAW03 – JUNE 2016 8 of 21 mens rea requirements of the offences themselves. For example, assault and battery are punishable with far lower terms of imprisonment than actual bodily harm under s47, although the mens rea for s47 is just that of the mens rea for assault or battery. The offences under s47 and s20 share the same maximum sentence of imprisonment of five years, although s20 is clearly regarded as a far more serious offence, whilst the disparity between the maxima for s20 and s18 of life imprisonment seems excessive. As students frequently emphasised, the concept of a ‘wound’ in s20 and s18 serves to obscure comparisons based on level of injury inflicted and so contributes to the sense that anomalies abound. There were other strong criticisms of the elements of all of the offences and especially of the breach of the principle of correspondence evident in the s47, s20 and s18 offences. Some students sought to argue that, though an offence such as assault might seem ill-adapted to current forms of unpleasant and aggressive behaviour, the law has not stood still, citing legislation such as Protection from Harassment Act 1997 and more recent amendments. These were certainly interesting and creditworthy additions to the more familiar forms of analysis, but they tended to remain at a rather superficial level. In making suggestions for reform, students mainly drew on the proposals of the Law Commission in 1993 and the Government’s Draft Bill of 1998. The strongest answers accurately detailed the proposed offences, their associated sentences, the supporting definitions and the way in which the whole was intended to meet the extensive criticisms. Weaker answers were less detailed and less comprehensive in the range of proposals considered and sometimes inaccurate (for example in continuing to refer to aspects of current terminology such as ‘harm’ rather than ‘injury’, and in misstating some of the sentencing proposals). At their weakest, answers suggested little more than that changes to particular aspects were necessary, without ever attempting to supply any indication of what form those changes might take. Students were not expected to be familiar with the Law Commission’s latest proposals on non-fatal offences, published in November 2015 as Offences Against the Person (Law Com 361). Nevertheless, some students were aware of the proposals and were able to gain credit for incorporating them into the discussion. The main addition, here, was the proposal to create an offence of ‘aggravated assault’; meaning any assault which in fact causes an injury, to sit between the offence of intentionally or recklessly causing harm and the assault offences and carrying a maximum sentence 12 months’ imprisonment. Some students also pointed out that the proposals depart from earlier proposals, in relation to transmission of disease (no longer to be confined to the offence of intentionally causing serious injury) and the definition of general elements of intention and recklessness (to be left to be determined in accordance with the general law).