Evaluating The Offences Against The Persons Act 1861

Abstract 

An important part of English criminal law for a long time has been the Offences Against the Person Act 1861 (OAPA), which covers a range of offences from common assault to s18 grievous bodily harm. Despite it being a fundamental act within the English criminal law as with its historical importance prosecuting offenders for non-fatal offences against individuals, the Act has recently faced criticism for being outdated and unsuited for the legal requirements of today’s age. This article assesses the OAPA 1861 by critically examining its provisions, uses, and relevance to today’s criminal justice system. Drawing on existing sources, case law, and legislative interpretation, this article critically examines the Act. The article finds that the acts outdated terms, it structural issues and flaw in considering harm in the modern age such as psychological harm are amongst its main causes of worry. In order to improve and enhance the Act's effectiveness in addressing offences against the person, the article also mentions suggested ways of reform, firstly, the changing of the language of key words such as “maliciously” because in today’s age its meaning has changed to what it meant back when the act was created. Other forms of reform include explicit writing within provisions. The article concludes by mentioning a total amendment of the act as it has several issues which parliament need to take time and fix.

Keywords

Offences Against The Persons Act 1861, Criminal Law, Statutory Reform, English Law, Law Commission, Common Law

Introduction 

The Offences Against the Person Act 1861, covers a variety of offences from assault to grievous bodily harm (GBH). The creation of the act was more than 160 years ago. The phrase "non-fatal offences against the person" refers to offences that cause the victim to suffer but do not result in death. Common law referrers assault and battery as "common assault." These offences are prosecuted under Section 39 of the Criminal Justice Act 1988, despite previously being common law offences. The act also deals with other offences such as Section 47 of the OAPA 1861, assault resulting in actual bodily harm, Section 20 for malicious wounding or inflicting grievous bodily harm, and Section 18 for malicious wounding or inflicting grievous bodily harm with intent to cause serious harm.

Assault is defined as "an act which causes the victim to apprehend the infliction of immediate, unlawful force." A positive act is necessary for an assault to be considered; merely failing to act or omitting to act is insufficient. "Immediate" is understood to signify "imminent" rather than "instantaneous". Therefore, as long as the victim believes that force may be used soon, an assault may take place even if the harm is not used immediately. Furthermore, if it is said that there will be no violence, this can refute the assault. 

Battery is defined as the application of unlawful force to another person, intending either to apply unlawful force to another person, intending either to apply physical force or being reckless as to whether such force is applied. The word "force" might be deceptive since, in certain cases, the smallest contact can be considered battery if it is against the law. As established in Collins v Wilcock. 

Under s47 of the act it states, "whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable to imprisonment for five years.” Therefore, to be convicted of Assault Occasioning Bodily Harm there must be an injury to the victim that would amount to actual bodily harm. The word ‘actual’ means that the injury should ‘not be so trivial as to be wholly insignificant.’ The body is not limited to the flesh, bones and skin but includes the organs, nervous system, and brain. Finally, harm is ‘Any hurt or injury calculated to interfere with the health or comfort of the of the victim’. In R v Chan Fook, the court found that recognisable psychological injury is included in the definition of ABH, which goes beyond only bodily harm.

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Section 20 of the act states that ‘whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without a weapon or instrument shall be guilty of an offence and shall be liable to imprisonment for not more than five years.’  

A wound is defined as an injury involving a ‘cut or break’ in the continuity of the skin. as established in JJC v Eisenhower. The phrase "grievous bodily harm" (GBH) refers to very serious harm, which can involve major psychological distress, severe physical suffering, or the intentional spread of a dangerous illness. 

Section 18 of the act states "Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of an offence." The offence is similar to the offence under s20 however the prosecution must show that the defendant specifically intended to cause great bodily injury.

Still, the OAPA 1861 has come under growing criticism for being out of date and inadequate in light of modern demands as legal concepts and social norms have evolved. Examining the OAPA 1861's historical background, the difficulties it poses for contemporary legal practice, and possible reform paths, this essay seeks to critically examine the law.

Literature Review 

It can be noted that the Act was a product of its period, as the act effectively reflects Victorian society values. Understanding the Act's historical background is essential since many of the present problems it contains are because of the Act being a consolidated piece of legislation rather than a completely new legislative act.

During the 1980s and 90s, several reports were released about the amendment of the Offences Against Persons Act 1861. The Law Commission's 2005 report was the most current, stating that while a draft bill had been submitted in 1998, there had been little movement and little to no political will to adopt reforms, with interest limited to certain portions of the Act, such as those about abortion. The act has a great deal of issues. Firstly, the Act is 163 years old. As mental health was not a topic that was understood when the Act was written, it only addressed physical injury and not mental harm. In order to close this gap, the courts have decided that mental injury may be considered bodily harm as demonstrated by the case of R v Chan Fook and R v Burstow. 

Furthermore, due to a lack of understanding about how diseases were spread at the time, the Act did not include the concept of spreading a deadly disease such as HIV. Only because of the courts are these circumstances addressed today. This was due to the cases of R v Dica and R v Golding. 

Furthermore, it has been said that the Act's structure is unclear and confusing. For instance, there has been some misunderstanding among the public and professionals within the legal industry which includes barristers and solicitors regarding the differences between sections 18 and 20, which both address grievous bodily harm but with specific levels of intent. Ashworth, argues that the unclear structure destroys the fairness and effectiveness of the criminal justice system by leading to inconsistent charging and sentencing procedures.

In addition, one of the most common complaints against the OAPA 1861 is that it has a complicated structure and outdated wording. The wording of the Act is not just outdated but also deviates from how an act today would be drafted, as scholars like Ormerod and Laird (2018) have noted. Courts sometimes have to depend on judicial precedent to define the meaning of phrases like "maliciously" in sections dealing with injury because of the interpretation issues of its literal meaning. This has caused decisions made by the court to be criticised for being inconsistent and unpredictable.

Methodology 

This study's main research is doctrinal research, which includes looking at acts and case law. For this study, this research method is most appropriate  since it provides an in-depth examination of the wording, organisation, and judicial interpretations of the OAPA 1861. The study includes a detailed reading of the Act, with particular attention paid to important parts including those addressing grievous bodily injury, assault, and battery. In order to comprehend how courts have read and applied the Act throughout time, the research also examines significant case law. The study looks at cases to see how judicial interpretation has influenced the way the OAPA is applied nowadays settings. 

The research examines a variety of secondary sources, including as scholarly publications, textbooks, and law reform studies, to supplement the doctrinal analysis. By offering critical viewpoints on the OAPA, the article hopes for reforms. Finding problems of the OAPA, such as its outdated wording and structural problems, has helped with further developments. In order to evaluate suggested changes and their possible effects on the implementation of the OAPA, reports from the Law Commission and other legal organisations are also examined.

Results

Discussion 

The findings from the article shows how quickly the Offences Against the Person Act of 1861 (OAPA) needs to be reformed. Despite it being a fundamental act within the English criminal law as with its historical importance prosecuting offenders for non-fatal offences against individuals, the article has clearly highlighted areas of concern which are the language, structure and application. None of the mentioned is intact with the current requirements of society today.  

The OAPA's language and structure show to be major roadblocks to its successful execution. The Act's use of outdated terms like "maliciously” has led to interpretation problems and a dependence on case law rather than explicit statutory direction. This has weakened the consistency and predictability of legal results in addition to creating misunderstanding among legal experts. This issue is best shown by the disparity between sections 18 and 20 of the Act, which both deal with grievous bodily injury but with different degrees of intent. A possible way to reform this could be to change phrases like "malicious wounding" and "grievous bodily harm" with updated terms like "serious injury," and define words like "intent" and "recklessness."

As previously mentioned, the act today is very outdated and has only been working through the help of judicial decisions which cannot always rescue the act. This can be demonstrated through the cases of R v Chan Fook and R v Burstow which demonstrate harm in the form of psychological pain and harm to mental health, now this was considered by the courts as they were thoughtful of society today but the same cannot be said about the act. In addition, the courts have also helped out by ensuring that a spread of an illness as demonstrated via the case of R v Dica is an appropriate reason to prosecute an offender. The current OAPA does not consider this at all which is a major concern. A possible way to reform this is to create a new act that contains both judicial and statutory information.

Another area of issue is how the OAPA applies to crimes committed in the present. When the Act was written, problems including same-sex sexual activities, mental health etc were not foreseen. Due to the act not having foreseen this, it has caused for there to be decisions which does not sit right with the current societal values as seen in R v Brown as while that was seen as an offence in the form of s47 of the act, the case of R v Wilson was not seen as a form of s47 of the act because in the latter case the couple were married,  The OAPA's inadequacies in addressing the entire range of offences against the person today is further highlighted by its inability to distinguish between diverse types of harm, especially in light of contemporary understandings of mental health and non-physical injuries. A possible reform is to include psychological harm within the definition of injury and also ensure bodily includes mental health.

Conclusion 

English criminal law has been greatly influenced by the Offences Against the Person Act 1861 (OAPA), especially in regard to non-fatal offences against humans. The OAPA is historically significant, but this study has shown that it is becoming less and less sufficient for the complexity of the modern legal system. Due to its outdated wording, complicated structure, and limited focus, the Act is not well-suited to deal with modern problems including mental health, Same Sex sexual activities etc.

The role the act is to help and serve the members of the public and parliament does so by creating acts like this. However, this act of parliament cannot longer serve members of the public because of its countless flaws. The large amount of its flaws has fortunately been filled up by judicial decisions and interpretations which has covered many areas such as transmitting a sexual disease and psychological harm. However, there will only be a point till the judiciary can intervene because at the end of the day statutes need to be prioritise and if this is then we will be left with absurd decisions. A look into the OAPA 1861 is necessary to ensure that it can meet up to the requirements of the legal system. 

AUTHOR:

Tanmeet Singh Sachdeva

University of Surrey

References

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