Welcome to the "Big Picture" of Criminal Law!

You’ve already learned the rules—what makes a crime and what defences exist. Now comes the most important part for getting those top grades: Evaluation. Evaluation isn't just about knowing the law; it's about asking, "Does this law actually work?" or "Is it fair?"

Think of yourself as a legal critic. Just like a movie critic decides if a film is good or bad, you are going to decide if the law is fit for purpose. Don't worry if this seems a bit deep at first; we’re going to break down the critiques of Non-Fatal Offences and Defences into simple, bite-sized arguments.


1. Your Evaluation Toolkit

When you are asked to evaluate an area of law, you need a "checklist" to help you form an argument. The OCR syllabus gives us a great framework. Whenever you look at a law, ask yourself:

• Is it fit for purpose? (Does it do what it’s supposed to do?)
• Is it up-to-date? (Was it written for the modern world or the horse-and-cart era?)
• Is it just or unjust? (Is the outcome fair to both the victim and the defendant?)
• Does it balance principle and policy? (Does it follow legal logic, or is it just trying to keep the public happy?)

Quick Tip: Use the mnemonic "F.A.I.R." to remember these: Is it Fit for purpose, Accessible/up-to-date, Injust, or Reasonable?


2. Evaluating Non-Fatal Offences Against the Person (NFOs)

The main law here is the Offences Against the Person Act (OAPA) 1861. Yes, you read that right—1861! That's over 160 years old.

The Problems (The "Cons")

• Outdated Language: The Act uses Victorian words like "maliciously" and "grievous." In modern English, "malicious" sounds like "spiteful," but in law, it just means "reckless." This is confusing for juries!
• The "Hierarchy" is Messy: Usually, the more serious the crime, the higher the sentence. However, s.47 (ABH) and s.20 (GBH) both have the same maximum sentence (5 years), even though GBH is much more serious. It’s like getting the same punishment for stealing a chocolate bar as stealing a car.
• Inconsistency in Mens Rea: For s.47, you only need the mens rea for a basic assault/battery. This means you can be guilty of a serious 5-year offence without actually intending or even seeing the risk of a serious injury. Many critics say this is unjust.

Ideas for Reform

The Law Commission (the "law mechanics" who suggest repairs) suggested a new Bill in 1998 and 2015. They want to replace the old sections with clear, modern terms like "intentionally causing serious injury."

Quick Review: The OAPA 1861 is like trying to run a modern smartphone on a Victorian steam engine. It's old, the language is confusing, and the sentencing doesn't always match the seriousness of the crime.


3. Evaluating Defences: Intoxication

Intoxication is a "public policy" defence. The law has to balance legal principles (a person who is too drunk might not have mens rea) against public policy (we don't want people getting drunk and getting away with crimes).

The "Majewski" Problem

The case of DPP v Majewski created a rule: intoxication can be a defence for specific intent crimes (like Murder) but NOT for basic intent crimes (like Assault).
• The Logic Gap: This is a "legal fiction." The law assumes that by getting drunk, you have already formed the mens rea for any future recklessness. This ignores the rule that actus reus and mens rea must happen at the same time (coincidence).

Fairness vs. Safety

• Unfair to Defendants? Some say it's unjust to convict someone of a crime they didn't mentally intend.
• Fair to Society? Most people agree that if we allowed "I was drunk" as a total defence for everything, the streets wouldn't be safe!

Did you know? The Law Commission suggested that instead of this messy system, we should have a new offence of "criminal intoxication" to specifically punish people who cause harm while drunk.


4. Evaluating Defences: Self-Defence

The law allows you to use reasonable force to protect yourself. But what is "reasonable"?

The Subjective/Objective Mismatch

• The "Heat of the Moment": The law (s.76 Criminal Justice and Immigration Act 2008) says we shouldn't expect someone to calculate the exact amount of force needed while they are being attacked. This is fair and fit for purpose.
• The "All or Nothing" Problem: Self-defence is a total defence. If the jury thinks you used just a little bit too much force, you get no defence at all. In murder cases, this means the judge must give a life sentence, even if the defendant was just trying to protect themselves but panicked. Critics say there should be a partial defence (reducing murder to manslaughter) for excessive force.


Can you consent to being hurt? This area of law is a battle between personal freedom and morality.

The "Brown" vs. "Wilson" Debate

• Inconsistency: In R v Brown, the court said consent was NOT a defence to s.47/s.20 injuries caused during private, consensual acts. However, in R v Wilson, a man who branded his wife's buttocks with her consent was NOT guilty.
• The Critique: Many argue the law is unjust and discriminates based on social "morals" rather than actual harm. Why is boxing legal (where the goal is to cause a concussion), but private acts between adults are criminalized?

Analogy: Imagine if the government told you that you could play rugby (dangerous) but you weren't allowed to play tag in your own garden because you might get a bruise. It feels inconsistent!


6. Summary of Ideas for Reform

To wrap up your essays, you should always mention how the law could be better. The Law Commission is your best friend here. Their general goals are:

1. Codification: Putting all the laws into one clear, modern document.
2. Clarity: Using words like "reckless" and "intentional" that everyone understands.
3. Fairness: Ensuring that the punishment matches the moral blameworthiness of the defendant.

Key Takeaway: Evaluation is about looking for the "cracks" in the law. Is it old? Is it confusing? Does it treat similar people differently? Use the Law Commission’s reports as your evidence that the law needs fixing!


Quick Review Box

• NFOs: Outdated (1861), bad hierarchy of sentences, confusing language.
• Intoxication: A "legal fiction" to protect the public; ignores the coincidence of AR and MR.
• Self-Defence: Good because it recognizes "heat of the moment," but "all or nothing" nature is harsh.
• Consent: Inconsistent; sometimes allows "socially acceptable" violence (sports) but punishes private choices.