Offences against the person act 1861; criticisms and reforms.

By Lucy Weet

There has been much discussion on the Offences against the person act (OAPA) 1861. Many see the act as outdated and clumsy, its wording unclear and as being difficult to explain and prosecute under. The OAPA is used in 100,000 prosecutions every year. The Law Commission has attacked the OAPA for creating constant legal argument and delay because of unclear wording and wasting thousands of pounds in taxpayer's money in appeals. Both the Law Commission and the Government have looked at possible reforms for the act in order to improve its position in English Law. The 1861 Act is widely criticised for being archaic and unclear, it is in urgent need of reform. It is hoped that after the change have been made that the statute will be able to be used more effectively and efficiently.

The criticisms of the OAPA have been around for several years. Many lawyers and judges have expressed difficulties in using the act and there have been Law Commissions set up to look into the act itself. Jack Straw has described the act as "out-moded and unclear Victorian legislation" The wording used in the act is now frequently used in everyday language which has led to differences in meaning and problems in interpreting the statute. Words such as Grievous Bodily Harm and Actual Bodily Harm are widely used, however this does not mean that the offences are easily understood or effective in dealing with violent behaviour. Some lawyers have even argued that the state of the OAPA leads to unnecessary and expensive appeals because of the decisions on questions of law.

Criticism is made often on the way in which the offences themselves are worded. The language used reflects the period in which the act was passed and is often out-dated or old-fashioned. In some cases the words used are open to interpretation, which can lead to conflicting decisions based on the meaning of a single word. There is no clear statutory definition of assault or battery, this means that it is often left to a judge to decide his own meanings of the words and apply them in a case. This could lead to injustice as he may decide more strict meaning than is widely accepted as a definition. With the more serious offences the words are often antiquated and in some cases misleading for example "assault" and "maliciously". This is because it is an old piece of legislation, and the vocabulary used in 1861 has evolved to have different meanings in modern England. The wording has also lead to a gap in the law, with, in certain cases defendants getting off a crime, which in terms of common sense he is guilty of. For instance if man in the street threatens to kill you it would be seen as assault. But if he shouts that he is going to kill you tomorrow in the eyes of the law that is not an assault, even though any reasonable person can see that it is a clear danger to the person the threat is directed to.

Another area of criticism is the hierarchy of the offences; the offences are listed in terms of seriousness with the most serious offences being first in the Act. There are major differences in the sentencing within the sentences and this has lead to criticism. For assault and battery the maximum sentence is six months imprisonment, whereas section 47 is up to five years, the only difference being that in section 47 ABH is caused. Even though ABH can be as little as causing discomfort there is an increase of four and a half years on the maximum sentence. Another criticisms ...

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Some people are also critically of the lack of protection for women who are abused by their partners. Although the law in theory protects all there is very little protection for women who are beaten and raped by their partners. A survey carried out by Mooney for the Zero Tolerance against domestic violence returned some alarming results. Of the men questioned only one in three said they would never use violence against their partners, the other two-thirds said they could envisage a situation where they would use violence. One in five men said they would react violently every time to certain situations. The survey questioned women to find out how many had had violence used against them. Almost twenty-five per cent of women said their partner at some point had raped them, ten percent had suffered attempted strangulation and seven per cent had received broken bones at the hands of their partner. Add to that the fact that forty-four per cent of female murder victims are killed by their partner and we have a worrying situation within Britain. Many of the partners get away with the crimes because they are not reported, only around two per cent of women actually report their partners for domestic violence. There are several suggestions as to why there are low report numbers, many of the women are embarrassed due to the stigma attached to being a "beaten wife", some feel it shows how bad a relationship is working, some blame themselves and think they provoked their partner to do this. Many women are worried that if they report the partner further beatings will ensue, another reason to avoid reporting is the traditional police approach which was to leave domestic violence alone and hope that the partners would sort their problems alone. Although there have already been changes made in recent years, there is still very few domestic violence cases reported. A spouse can now be compelled to give evidence against a partner in court, however no one can be forced to give evidence. Orders can be made prohibiting violence against a partner and orders can also be passed which remove the violent partner from the home, although it is hard to enforce these if the partner really wants to get at the victim.

The Law Commission considered reforming the OAPA at the beginning of the 1990s, producing a report in 1993. In 1998 the Home Office produced a consultation document to show its commitment to modernising and improving the law. In contrast to the Law Commission's plans to abolish the OAPA and replace it with a Criminal Justice Act the government are simply planning to reform it with an act. The Government doesn't intend to make the law any tougher or more lenient, just to make it clearer and easier to use. The draft Bill updates the language and avoids words which could be unclear. The Criminal Law Revision Committee had suggested getting rid of the distinctions between wounding and "bodily harm" and introduce "causing injury". They also suggested a distinction between serious injury and injury, and that serious injury with intent should be more serious than serious injury caused by recklessness. In 1997 the Home Secretary, Jack Straw, said that the Government were looking into the "technical legal changes proposed by the Law Commission such as definitions of intent, recklessness, and intoxication or whether the intentional transmission of disease should be included in the Bill"

The actual proposal the Government came up with was published in 1998 and was open to comment. Clauses contained a set of simple and straightforward offences to replace the offences of GBH, ABH and assault. The new offences are simply called intentional serious injury, reckless serious injury, intentional or reckless injury, and assault. These offences are clear and easily understood, and are based on motivation and outcome. Therefore, the most serious offence of causing intentional serious injury carries a higher sentence than the less serious offence of recklessly causing serious injury. The new offence of assault combines the existing offences of common assault and battery. The Government wants to ensure the courts are able to apply one definition of assault in all the offences which use the concept of assault, therefore, the definition of assault is to be applied to all offences, whether indecent assault or an assault on particular people. The Government included in the Crime Disorder Bill aggravated offences for racially motivated violence based on the existing offences in the OAPA 1861. The Government proposes to keep a number of offences relating to the police including the offence of assaulting a police officer and assault in resisting arrest. The Government agreed with the Law Commission's finding that making threats to kill should be extended to include threats that cause serious injury and threats to harm a third person. This extended offence fills a gap in the equivalent 1861 Act by creating the offence of threatening a third party.

The Government has also included definitions of unclear words such as intent, recklessness and injury. These have been included to make the law easier to understand and to give it greater clarity. The definition of injury will allow the transmission of disease to be included in the offence of intentionally causing serious injury. The Government considers their views on transmission of disease very carefully and has decided it would not be right, or appropriate to make the range of normal day activities that could transmit disease, potentially criminal. It is concerned that the law should not discriminate against those who are HIV positive, have AIDS, viral hepatitis or carry any kind of disease. They are also keen to avoid discouraging people for having diagnostic tests and treatment because of fear of criminal prosecution. It is hard to argue the law should not deal with people who intentionally transmit serious diseases, as it is clearly a form of violence against the person. The Government therefore proposes that the law should only apply to those whom it can be proved beyond reasonable doubt have deliberately transmitted a disease, intending to cause serious illness.

The offence of intentional serious injury, as described in clause 2 of LC218, will replace section 18 of the OAPA 1861. The maximum penalty remains life sentence. The new offence extends to omissions where a person is at duty to commit an act by common law. For example, a vehicle maintenance engineer who deliberately omits to mend faulty brakes on a vehicle, intending to cause serious injury.

The offence of reckless serious injury, clause 3 of LC218, replaces section 20 also known as wounding or GBH, with a slightly more serious offence. The new offence requires the foresight of a risk that serious injury would result as opposed to just harm. The new offence also requires that the serious injury must result. This offence carries a maximum sentence of seven years imprisonment to reflect the seriousness.

The offence of intentional or reckless injury, clause 4 of the LC218, replaces section 47, ABH. The new offence is more serious, as it requires intent to commit injury or the foresight that injury would result. The maximum penalty is five years imprisonment.

The new offence of assault, clause 6 of the LC218, replaces the existing common law offences of assault and battery, and retains maximum penalty of six months.

Assault on a constable carries the same maximum penalty of six months imprisonment, and replicates section 89 of the Police Act 1996. Causing serious injury to resist arrest is to replace the second part of section 18 OAPA 1861, and carries a maximum sentence of life imprisonment. Assault in resisting arrest replaces section 38 of the OAPA and carries the same maximum penalty of two years imprisonment.

Clause 9 of the LC218 recommended the inclusion of threats to kill or cause serious injury. This offence replaces section 16 of the OAPA and extends the law to cover threats to cause serious injury and threats against third parties. The maximum penalty is 10 years imprisonment.

Clause 14 provides definitions of terms such as intent and recklessness. The definition of recklessness requires a subjective test to be applied in establishing mens rea and reflects the case of Savage and Parmenter 1992. These new definitions make it clear that to be reckless, the defendant must take a risk knowing or believing that circumstances could lead to the result. The bill also defines "injury" as physical or mental injury, but leaves serious injury open to interpretation. However "anything caused by disease" is not an injury except in Clause 1.

In conclusion, it can clearly be seen that the law on the Offence Against the Person Act 1861 is outdated and unclear, creating unnecessary confusion in the courts. The Consultation Paper of 1998 shows the way in which the Government intends to modernise and simplify the law in this area. In particular, it provides a new hierarchy of offences to replace the existing range of statutory and common-law offences. By making the law more accessible in this way, it will smooth the passage of thousands of cases a year, allowing citizen to understand the criminal offences more easily and enabling the police to explain and charge offences which are more widely understood. It is also hoped that the task of judges, magistrates and juries will become more straightforward in the administration of justice.

Bibliography

Violence: Reforming the Offences Against the Person Act 1861, published 1998.

Law for AQA, Catherine Elliot and Francis Quinn, Longman 2001

Update of assault law may include AIDS and stalking, Francis Gibb 15.9.97

Jack Straw; Violence: Reforming the Offences Against the Person Act 1861 (pub. 1998) www.homeoffice.gov.uk/docs/vroapa.html

Jack Straw; Violence: Reforming the Offences Against the Person Act 1861 (pub 1998) www.homeoffice.gov.uk/docs/vroapa.html