recklessness will suffice. The latter requires, amongst other things, that the risk must have been an objectively unreasonable one to take Many non-serious in the circumstances. infections are transmitted between people all the time an obvious example being the – common cold. Clearly, it is objectively reasonable to run the risk of transmitting such illnesses in daily life. Problematically, this presupposes that distinctions between serious and non-serious diseases can be drawn. As the scoping report identifies, individuals have different susceptibilities and ailments that are regarded as may do more serious harm to one “minor” person than to another. Nonetheless, even in these situations, the possibility of transmission is still likely to be an reasonable risk to take. Elsewhere, inclusion of disease objectively serious transmission under offences 1 and 2 marks no change from current law: their equivalent crimes (ss.18 and 20) already include this harm within the meaning of GBH. Overall, in defining conduct, the new hierarchy presents a simple and logical ladder of harms across offences 1, 2 and 3. It is therefore more intelligible to practitioners and the public. However, in some respects, the revised scheme of harms perpetuates existing problems. In particular, the scoping report is vague about the boundary between injury” and “serious Of course, some degree of overlap in classifying harms is inevitable. However, the “injury”. scoping report could have been clearer on this distinction. For example, it notes that the word remains ambiguous, before debating without resolving whether it might be “serious” – – preferable for offences 1 and 2 to require grave injury”. That extra layer of “exceptionally definition would have better delimited the severity of physical or mental suffering that isolates offences 1 and 2 from offence 3. It is therefore regrettable that the scoping report does not provide more precision on how should be understood, especially given that “serious” demand for precision on this issue is longstanding. At the moment, assuming the split between injury” and mimics the actus rei divide between ss.18/20 and 47, “serious “injury”
recklessness will suffice. The latter requires, amongst other things, that the risk must have been an objectively unreasonable one to take in the circumstances. Many non-serious infections are transmitted between people all the time – an obvious example being the common cold. Clearly, it is objectively reasonable to run the risk of transmitting such illnesses in daily life. Problematically, this presupposes that distinctions between serious and non-serious diseases can be drawn. As the scoping report identifies, individuals have different susceptibilities and ailments that are regarded as “minor” may do more serious harm to one person than to another. Nonetheless, even in these situations, the possibility of transmission is still likely to be an objectively reasonable risk to take. Elsewhere, inclusion of serious disease transmission under offences 1 and 2 marks no change from current law: their equivalent crimes (ss.18 and 20) already include this harm within the meaning of GBH. Overall, in defining conduct, the new hierarchy presents a simple and logical ladder of harms across offences 1, 2 and 3. It is therefore more intelligible to practitioners and the public. However, in some respects, the revised scheme of harms perpetuates existing problems. In particular, the scoping report is vague about the boundary between “serious injury” and “injury”. Of course, some degree of overlap in classifying harms is inevitable. However, the scoping report could have been clearer on this distinction. For example, it notes that the word “serious” remains ambiguous, before debating – without resolving – whether it might be preferable for offences 1 and 2 to require “exceptionally grave injury”. That extra layer of definition would have better delimited the severity of physical or mental suffering that isolates offences 1 and 2 from offence 3. It is therefore regrettable that the scoping report does not provide more precision on how “serious” should be understood, especially given that demand for precision on this issue is longstanding. At the moment, assuming the split between “serious injury” and “injury” mimics the actus rei divide between ss.18/20 and 47,
Crim%20LR%20OAPA%20Piece.docx