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Reform of the Offences Against the Person Act 1861

Home Office Bill based on Law Commission proposals

The Act

The Offences Against the Person Act is full of antiquated language and confusion. The 1861 act was a consolidating act and relied on even older legislation and court decisions.

 

Home Office published a Bill in February 1998.

 

Home Office reform

The Home Office produced a Consultation Document in 1998.  Nothing happened as a result of that consultation.

 

The new draft Bill is simply modelled on the 1993 Law Commission Report.

 

The Law Commission Report on assaults

"Legislating the Criminal Code: Offences against the Person and General Principles" (1993)

 

 

Proposed changes

Grievous Bodily Harm (GBH)

Becomes ‘Serious Injury’.

Malicious and Wounding

The words are avoided altogether.

Sec 18

Becomes ‘Intentionally Causing Serious Injury’. (Clause 1) Life imprisonment.  Triable only on indictment.

 

Sec 20

Becomes ‘Recklessly Causing Serious Injury’. (Clause 2) 7 years imprisonment, triable either way.

 

Sec 47

Becomes ‘Intentionally or recklessly causing injury’. (Clause 3) 5 years, triable either way.

 

Assault

Means assault and battery (Clause 4).

Injury; clause 15

"Injury" is defined as physical or mental injury.

 

"Physical injury does not include anything caused by disease, but.... includes pain, unconsciousness and any other impairment of a person's physical condition".

 

"Mental injury does not include anything caused by disease....".

 

Cause -v- inflict harm

Bill removes the difficulty of trying to distinguish between "causing" and "inflicting" GBH.

 

There are some obvious problems with them. For example, if there is a justifiable need to have separate offences dealing with intentional and reckless serious harm why should this not also be necessary for cases of non-serious harm?

 

Other proposals

Criminal Law not appropriate for Transmission of disease

The Law Commission thought the OAP Act could be used in cases of the transmission of disease, but the government has not accepted this entirely.

 

It was felt that it would be inappropriate to use the criminal law where disease was transmitted through normal everyday activities.

 

Especially where there was a reckless transmission of relatively minor diseases such as mumps or measles even though there might be serious consequences for more vulnerable citizens.

 

AIDs?

As to potentially more serious diseases the government felt it is appropriate to criminalize the deliberate transmission of a disease causing serious illness.

 

However, the government maintains that the existing law requires no significant change.  The courts have to some extent proved this to be correct in cases such as R v Dica [2005].

 

The artificial distinction between "wounding" and other bodily harm to be considered

What makes harm more serious?

Its nature?

Its consequence?

Its effect on the victim's lifestyle?

The way it is administered?

The context in which it is administered?

No definitional distinction between serious and non-serious injury is made.

 

Horder has argued that the desire for certainty and the fair labelling principle point to the need for greater distinctions between offences

He advocates the need for "moral nominalism" so that the law should reflect ordinary moral distinctions by more descriptive definitions.

Thus, there should be separate crimes dealing with mental cruelty and separate offences representing different methods of commission (disablement, disfigurement, castration etc.).

 

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