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Reform of the Offences
Against the Person Act 1861 |
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Home Office Bill based on
Law Commission proposals |
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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.
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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.
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The Law Commission Report on assaults |
"Legislating the Criminal Code: Offences
against the Person and General Principles" (1993)
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Proposed changes |
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Grievous Bodily Harm (GBH) |
Becomes ‘Serious Injury’. |
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Malicious and Wounding |
The words are avoided
altogether. |
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Sec 18
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Becomes ‘Intentionally Causing
Serious Injury’. (Clause 1) Life imprisonment. Triable only on
indictment.
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Sec 20 |
Becomes ‘Recklessly Causing
Serious Injury’. (Clause 2) 7 years imprisonment, triable either way.
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Sec 47 |
Becomes ‘Intentionally or
recklessly causing injury’. (Clause 3) 5 years, triable either way.
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Assault |
Means assault and battery
(Clause 4). |
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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....".
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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? |
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Other proposals |
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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.
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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].
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The artificial distinction between
"wounding" and other bodily harm to be considered |
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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.
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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.). |
