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The Boundaries Of The Criminal Law Add in library

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Question:

Describe about a Report of The boundaries of the Criminal Law?

 

Answer:

Introduction

Under the English Legal System, non-fatal offences against the person are defined to be such attacks which a person is subjected to, not leading to the death of the person concerned. No fatal offences have been dealt with under the Offences against the Person Act, 1861. The Law Commission has widely criticized the non-fatal offences against the persons. The main points of criticism were; that the language that has been used in the said legislation is obscure, complicated and outdated; that the offence have not been properly structured and also that Sections 18, 20 and 47 must be repealed, and new provisions must be introduced. In the paper Law Commission Reform of Offences against the Person: A Scoping Paper, the Law Commission has examined the present law and the problems associated therewith. Apart from analyzing the issues, this paper also provides suggestions for future reforms. The purpose behind this paper is to make the law suitable for the 21st century. Primarily this paper has insisted on creating a structured hierarchy of the offences and also simplifying the language of the statute.

In this paper, we will analyze and discuss the suitability of the present laws dealing with non-fatal offences against the person.

Language

From my analysis, I would say that The Offences against the Persons Act, 1861 (also referred to as the Act) has not clearly provided the definitions of important phrases and words which have been derived their meaning primarily from case laws over the years.

Maliciously

The courts are giving different meanings to the terms every time they have to interpret its meaning. This has lead to a lack of proper decision making. For instance, in both sections 18 and 20 the term ‘maliciously' has been used but the said term has not been defined in the Act. In the case of Cunningham, 1957 the courts have interpreted ‘maliciously' as meaning ‘recklessly' which happens to be an extension of the modern meaning of the term, i.e., bad intention. The term ‘maliciously' under Section 20 means mens rea. However, this meaning of the term becomes unnecessary when applied to the provisions of Section 20 as mens rea with intention.

Assault and Battery

The terms ‘assault' and ‘battery' ought to have been all the more clear and unambiguous because these terms are the elements of various other offences. But great confusion arises as to the precise meaning of the term ‘assault' as the statute uses the term ‘common assault'. This is an inclusive term and includes the definitions of both, assault and battery. Thus, there is no clear and precise definition of the terms ‘assault' and ‘battery' despite being an important term of the statute.

 

‘Inflict' and ‘Cause'

These two terms have been used quite a number of times in the statute. For instance, under Section 20 the phrase used is ‘inflict any grievous bodily harm' whereas under Section 18 uses the phrase ‘causes any grievous bodily harm'.  Earlier the courts interpreted that the meaning of ‘inflict' is much narrow as compared to ‘cause' and the existence of assault or battery is essential. However, later in the case of Burstow, 1997 it has been established that both the terms ‘inflict' and cause' bear similar meaning and the existence of battery or assault. This wide interpretation of the term has been subjected to criticism as it permits the imposition of liability on a person under the provisions of Section 20 in cases the defendant is not sufficiently at fault in order to be held liable for the said offence.

Wound

The term ‘wound' has not been defined under the provisions of the Act. However, in the case of LCC v. Eisenhower court has given the term the meaning of breaking of skin. However, this meaning of the term is not conducive to the general understanding of the term. If we understand the term by the said meaning, then it would render an injury caused to an individual by a pinprick to be an offence under the provisions of Section 20 of the Act. Thus, there arises difficulty in interpreting the term. A lot is left in the hands of the judiciary in such a case.

Outdated

The Act has been enacted almost 150 years ago, and major issues arise when we intend to apply the provisions of the Act in the present times. Generally, legislations are enacted keeping in view the existing situations and circumstances of the society. The situations and circumstances prevailing at the time when the Act was enacted are very different from the ones prevailing at present. The Act must be updated in order to make it fit for dealing with the new circumstances prevailing in the society. The social issues and concerns that are relevant today are not reflected in the Act. Society has undergone major changes ever since the enactment of the Act. Today the judicial officers are required to interpret the laws with better understanding as the laws have to be applied to wholly new technologies cause there has been great changes in the mindset of the offender and modes of commission of the offences. For instance, the term ‘bodily harm' has been used under Sections 18, 20 and 47 of the Act. However, the aspect of the probability of psychiatric illness being caused to an individual as a consequence of fear was not included within the meaning of the term. However, at present this aspect is included under the definition of the term bodily harm and has evolved from case laws over the period of time.

In the case of Ireland the defendant was accused of making innumerable phone calls to three women that made those women undergo psychiatric illness. The court convicted him under the provisions of Section 47 of the Act of having caused actual bodily harm to those three women. It was held by the House of Lords that silent phone calls amount to the offence of assault under the provisions of the Act. The court stated that when a silent phone call is being made, the victim might be under the fear that the caller would arrive at her place any moment. Such a feeling is conducive to the fear of the probability of instant personal violence.

However, in an old case Tuberville v. Savage, the courts had laid down that when words are such that they do not indicate that violence may be caused, an action cannot be deemed to be an assault. In this case, the defendant by placing one of his hands on the sword said that if it would not have been assize time, he would not have taken such language. The court held that the said statement did not amount to assault because it is clear from the statement that person would not cause harm. This was the position earlier but now it is quite possible that person making the phone call is just outside the door of the victim, and there is high probability that the said person might cause harm to the victim.

The way the offences under Section 18, 20 and 47 have been drafted in the said Act seem to be not accurate in the present times. They include the offences of the misdemeanor, felony and penal servitude but the law at present does not recognize these concepts.

The maximum sentences for the offences have not been laid down under either Section 20 or Section 47. The Sections only provide imprisonment for five years.

Again we may say that even though the seriousness of the offence of grievous bodily harm (laid down under Section 20 of the Act) is much more as compared to that of the offence of actual bodily harm (laid down under Section 47 of the Act), yet the sentences for committing both the offences is same.

The offences laid down under Section 18 and 20 is quiet complicated and the Sections provide for various ways in which the offences may be committed. In case of both these offences, there appears to be a mismatch as to what the offender must have intended to do and what the offender must have actually done in order to constitute the offences. The consequence of such ambiguity is that the offender is many-a-times held liable for such results which he/ she had not foreseen or intended.

 

Conclusion

From the above discussion, we may conclude that the Act must be reformed so as to be able to provide for offences in a much fairer, clearer and logical manner. Moreover, if the laws are reformed, updated and made clear they would become accessible to legal professional and lay men alike. The complexity associated with the interpretation of the law would be reduced to a great extent. The law must be made fit to cover the new situations and also clear and cohesive. Thus, we mat say that the quoted statement of the Law Commission as regards non fatal offences against persons is very accurate and reform must be made to the Act so as to do away with the above discussed drawbacks.

In order to ascertain the liability of Rohit and Umut in the given factual situation we must analyze the following legal principles;

Liability for Criminal Damage in United Kingdom

When damage is caused to property by an individual it is referred to as criminal damage. An individual who causes damage to property is dealt with under the provisions of Criminal Damage Act, 1971 (also referred to as the Act). Previously, criminal damage to property was dealt with in the United Kingdom under the Malicious Damages Act, 1861.

Under the provisions of the Act a person is deemed to be guilty of criminal damage to property when he/ she intentionally cause damage to property which belongs to other individuals. However, in order to qualify as an offence, such act must not have been caused with lawful excuse.

The offence of criminal damage comprises of the following elements;

Damage

Damage ought to have been caused to property

The said property must be owned by some other individual

The damage to the property must have been caused without any lawful excuse

The damage must have been caused intentionally or recklessly

 

Damage

The Act does not provide for a definition of the term ‘damage'. It is left to the courts to give meaning to the term depending upon the situation and circumstances that tend to vary from case to case. Generally the courts take into consideration the following factors in order to determine the causing of damage in a particular case;

The damage caused to the property need not necessarily be permanent. Damage is said to have been caused even if somebody smears mud or paint on a property.

Visibility of the damage caused is also not an essential condition. The fact that the damage caused is not visible but if as a consequence the property cannot be run properly, the courts would regard that damage has been caused to the property.

Recklessness

In order to establish a charge of criminal damage, the plaintiff has to prove that the actions of the plaintiff have been committed in a reckless manner. The Act lays down the definition of the term ‘recklessness' under Section 1 of the Act.

Section 1 of the Act provides that an individual is considered to have been acted in a reckless manner, as regards;

A circumstance, if it is found that the individual concerned was aware of the risk involved;

A consequence, if it is found that the individual concerned was aware of the risk before the occurrence.

In the said circumstances, it must have not been reasonable for the individual concerned to take the risk.

In the definition, the terms intention and recklessness have been used interchangeably. Establishment of one would mean the establishment of the other.

Property

Section 10 of the Act defines the term ‘property'.

Belonging To Another Individual

A property is said to belong to an individual

When the said individual has the authority to exercise control over the property or is in the custody of the said individual.

When the said individual has a right to the exclusion of others in the said property

When the individual owns a charge over the said property

No Lawful Excuse

In order to defend oneself from inflicting liability in an action for criminal damage to property, the individual concerned has to bring his/ her case under the provisions of Section 5 of the Act.

Section 5 provides that

The defendant must have been under the belief that the owner of the property has given consent for such action

The defendant must have inflicted the harm under the apprehension that his/ her property would be damaged and the damage has been caused to protect the property from such damage. But the mode of protection adopted ought to be reasonable.

Penalty

If an individual is held guilty for causing criminal damage to property, then,

Imprisonment for a maximum period of 5 years may be imposed upon the offender, in case, the valuation of the damage is less than £5,000.

Imprisonment for a maximum period of ten years may be imposed upon the offender, in case, the valuation of the damage caused is over £5,000.

Now applying the above legal principles to the given facts we may deduce the following;

 

Criminal Liability of Rohit

In the light of the given facts the actions of Rohit:

resulted in damage to property belonging to the Blokes Bar , i.e., the property belonging to another individual

the damage was caused to the property without any lawful excuse

Rohit caused the damage intentionally, upon being requested to stop he threatened to cause more damage

Rohit cannot justify his actions under the provisions of Section 5 of the Act

Rohit's actions were also reckless

Hence, it can be said that rohit is liable for causing criminal damage to the property of Blokes Bar. The courts would impose sentence upon him by relying on the estimate of the damage caused by his actions.

Criminal Liability of Umut

The bar counter was out on fire by Umut, purposely

Umut caused damage to property belonging to another individual, i.e., the owner of Blokes Bar.

The actions of Umut cannot be backed by any lawful excuse

Hence, it can be said that Umut is liable for criminal damage to property under the provisions of the Act. The courts would impose sentence upon him by relying on the estimate of the damage caused by his actions.

 

References

Baker, D, & G Williams, Textbook of criminal law. in , London, Sweet & Maxwell (2012).

Dubber, M, & T Hörnle, The Oxford handbook of criminal law. in .

Duff, A, The boundaries of the criminal law. in , Oxford, Oxford University Press (2010).

Duff, A, The constitution of the criminal law. in , Oxford, United Kingdom, Oxford University Press (2013).

Hooper, A, D Ormerod, P Murphy, B Leveson, J Phillips, & D Atkinson, Blackstone's criminal practice, 2012. in , Oxford, Oxford University Press ( 2011).

Monaghan, N, Criminal Law Directions. in , Oxford, OUP Oxford (2012).

Ormerod, D, J Smith, B Hogan, & D Ormerod, Smith and Hogan's criminal law. in , Oxford, Oxford University Press (2011).

<https://www.legislation.gov.uk/ukpga/1971/48/pdfs/ukpga_19710048_en.pdf> [accessed 9 August 2015].

'Assault And Battery. Criminal Responsibility. Extenuation Or Justification. The Yale Law Journal (1912)

'Assault And Battery. Criminal Responsibility. Forcible Prevention Of Wrongful Levy On Defendant's Property' Harvard Law Review (1916)

English J and Card R, Police Law Oxford University Press (2009)

Harris D, 'Included Offences And The Offences Against The Person Act' Cam. Law. J. (1994)

'Offences Against The Person' ICLQ (1973)

Reed A, 'Offences Against The Person Act 1861, S. 20: Footballing Injury' The Journal of Criminal Law (2005)

W. R, 'Attempt, Assault, And Assault With Intent' Michigan Law Review (1916)

Ireland,(1997)

LCC v Eisenhower(1994)

Tuberville v Savage (1669)

Melissaris E, 'Property Offences As Crimes Of Injustice' Criminal Law and Philosophy (2012)

'United Kingdom: Criminal Law' Commonwealth Law Bulletin (2010)

'Assault And Battery. Criminal Responsibility. Extenuation Or Justification. Spear V. State, 57 Sou. (Ala.), 510' (1912) 22 The Yale Law Journal.

'Assault And Battery. Criminal Responsibility. Forcible Prevention Of Wrongful Levy On Defendant's Property' (1916) 29 Harvard Law Review.

LCC v Eisenhower,.

J English and Richard Card, Police Law (Oxford University Press 2009).

'Offences Against The Person' (1973) 22 ICLQ.

Ireland.

Tuberville v Savage.

R. W., 'Attempt, Assault, And Assault With Intent' (1916) 14 Michigan Law Review.

Alan Reed, 'Offences Against The Person Act 1861, S. 20: Footballing Injury' (2005) 69 The Journal of Criminal Law.

Diane Harris, 'Included Offences And The Offences Against The Person Act' (1994) 53 Cam. Law. J.

A Hooper et al., Blackstone's criminal practice, 2012, in , Oxford, Oxford University Press, 2011.

M Dubber & T Hörnle, The Oxford handbook of criminal law, in .

D Ormerod et al., Smith and Hogan's criminal law, in , Oxford, Oxford University Press, 2011.

N Monaghan, Criminal Law Directions, in , Oxford, OUP Oxford, 2012

Emmanuel Melissaris, 'Property Offences As Crimes Of Injustice' (2012) 6 Criminal Law and Philosophy.

A Duff, The constitution of the criminal law, in , Oxford, United Kingdom, Oxford University Press, 2013.

A Duff, The boundaries of the criminal law, in , Oxford, Oxford University Press, 2010.

'United Kingdom: Criminal Law' (2010) 36 Commonwealth Law Bulletin.

D Baker & G Williams, Textbook of criminal law, in , London, Sweet & Maxwell, 2012.

<https://www.legislation.gov.uk/ukpga/1971/48/pdfs/ukpga_19710048_en.pdf> [accessed 9 August 2015].

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