The Massively Outdated Offences Against the Person Act 1861 Shows How Well the Common Law System Works
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
The Old Bailey
There are few pieces of English legislation which show the way in which our legal system can cope with an out-of-date framework better than the Offences Against the Person Act 1861.
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At over 150 years old, the statute is still used for the prosecution of many crimes against the person that fall short of murder.
The arguments in favour of reform are overwhelming, and there has been a new Criminal Code drafted, but it has been not been enacted. In the meantime, the common law, Crown Prosecution Service guidelines, prosecutorial discretion and the jury system are ensuring that this Victorian legislation still — more or less — keeps working on a day-to-day basis.
The 1861 Act — its origins, oddities and inconsistencies
The 1861 Act is a consolidation statute — it brought together existing law on injury to persons into one piece of legislation. As a method of keeping the law up to date this can be very effective; as the common law develops and becomes fairly stable and old pieces of legislation are being replaced in a piecemeal way with separate legislation, it helps to put everything in one place to make it easier for citizens to understand and lawyers to work with. The Offences Against the Person Act consolidated the 1828 Act of the same name and later statutes all together. So, at the time it put everything in one place and was fairly tidy.
However, nowadays it is not only an old piece of legislation but also difficult to understand. If the aim of law is to guide the conduct of citizens by deterring them from behaving in a certain way, the 1861 Act is not a particularly effective piece of legislation. Certainly we all know not to attack someone in the street, but the ins and outs of the statute can only be fully understood by a lawyer or somebody with a good textbook, a wide vocabulary and a fair bit of time on their hands. Section 20 of the Act reads as: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor [sic], and being convicted thereof shall be liable . . . to be kept in penal servitude”. It’s not exactly straight-talking language.
Further, the legislation can be seen to be lacking coherence because the offences aren’t set out in a principled way. Whilst we might think that there should be a ‘ladder’ of offences separating out either the severity of the harm, or the intentions of the defendant (deliberate intent or just recklessness, for example), the Act also creates specific offences for problems of the time. You will therefore find a crime of failing to feed apprentices within the Act, as well as one of impeding a person endeavouring to save himself from shipwreck, and another of causing assault with the intention of preventing the sale of grain or its free passage! Even the more ‘sensible’ crimes are considered to be lacking clarity. Much is made of the distinction between ‘inflicting’ and ‘causing’ injury, a difference between two fairly similar crimes of wounding under sections 18 and 20 of the Act. The other key difference between the two is that section 18 requires an intention to cause grievous bodily harm (or to prevent the arrest of oneself or another) as opposed to recklessness under section 20, so that section 18 carries a higher penalty. If section 20 requires ‘infliction’, which is interpreted as being more direct by some academics, it seems strange that the more serious crime can be committed by a more indirect route. Gardner has suggested that the fact you need to intend the injury under section 18 means the method can be more roundabout and the ‘right people’ still be caught, which is a helpful way of thinking about it, but it’s a shame that we are spending so much time arguing these differences when the dividing line between the offences perhaps ought really to be just about intention.
The Act can also be criticised as failing explicitly to address some injuries we now see as important, such as psychological injuries. Although actual bodily harm is now accepted to include recognised psychiatric illnesses, this is not obvious on the face of the legislation and it seems outdated to consider it as ‘bodily’ injury. There’s also a strange anomaly in that murder is at no point prohibited by statute. Sections 1-3 did deal with the penalties for murder, but these were repealed when England and Wales abolished the death penalty. We do have some legislation on sentencing as well as CPS guidelines, but the actual crime is based in common law rather than statute. It is all a bit of a jumble, in short.
Coping mechanisms
The miracle of the 1861 Act is however that it still works, more or less. Whatever theoretical complaints academics may have about the lack of principle in some parts of the legislation, and despite some ‘re-interpretations’ being necessary to keep the legislation relatively fit for purpose, it is still being used every day to prosecute in England and Wales. There are various ways in which this is achieved, all of which show the flexibility of a legal system to change the written law incrementally.
Firstly, there are plenty of phrases in the legislation which require interpretation and these interpretations can be altered by the courts over time. This is a well-known phenomenon in legal philosophy, and is something which HLA Hart named the ‘open texture of rules’. However clearly we may wish to set down a bright-line rule, someone will always need to clarify the position in some circumstances because human language is just not precise enough to cover all situations, and interpretations will be guided by our surroundings such as ideas of the time and what we think the legislation is for. For example, ‘actual bodily harm‘ (ABH) does not say much about the type of harm being prosecuted. Through case law it has developed a wide definition of ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ which is not merely ‘transient or trifling’, a definition set down in 1934. Later cases have confirmed that this includes a recognised psychiatric illness, and even cutting of hair because of its importance to a victim’s sense of identity. These two types of injury may not have come under the definition of ABH in 1861 but changing ideas of our society have influenced our reading of the law. Another example is that of battery, which is unlawful touching. This has been interpreted to include indirect application of force. In DPP v K a student was prosecuted for putting acid in a hot air dryer in the bathrooms at school, which had splashed another boy in the face when he later tried to use the drier. Although the boy hadn’t thrown the acid in the victim’s face, it was considered to be necessary that the law cover these indirect touchings. It would perhaps also cover something like setting a dog on somebody or setting a trap with the intention of catching somebody in it, which many of us consider as morally wrong as directly attacking them yourself.
Secondly, the jury system ensures that current public ideas of what constitutes which type of harm influence sentencing. It’s important here to point out that the choice of offence to prosecute, directions by the judge, and the potential for appeal will all limit the extent to which the jury can have an impact in criminal law cases. However, the fact that citizens play such an important part in the criminal justice system will also partly influence these other factors too, or juries will be reluctant to follow the directions of the judge. With the difference between actual and grievous bodily harm (ABH and GBH respectively), for example, the jury is simply told that GBH is ‘really serious harm’. The Crown Prosecution Service would not try to bring a GBH charge for tapping somebody on the shoulder, but equally the question of whether a defendant is guilty of GBH or ABH is left to the jury where two charges are brought. As criminal law is (at least seen to be) very much linked to society’s ideas of what behaviour ought to be punishable, this involvement of ordinary people is invaluable.
Another way in which the Act is kept functioning is through the Criminal Prosecution Service (CPS) Guidelines on Offences Against the Person. These are not legally binding, but they act as a good filter to make sure the Prosecution Service bring the right charges for the right crimes and therefore takes pressure off the courts system. For instance, it gives an idea of what might count as GBH, noting the importance of the jury as we discussed above:
“Grievous bodily harm means really serious bodily harm. It is for the jury to decide whether the harm is really serious. However, examples of what would usually amount to really serious harm include:
– injury resulting in permanent disability, loss of sensory function or visible disfigurement;
– broken or displaced limbs or bones, including fractured skull, compound fractures, broken cheek bone, jaw, ribs, etc;
– injuries which cause substantial loss of blood, usually necessitating a transfusion or result in lengthy treatment or incapacity;
– serious psychiatric injury. As with assault occasioning actual bodily harm, appropriate expert evidence is essential to prove the injury”
Whilst the legislation itself might not be very clear then, and the case law quite difficult to find or follow, the Guidelines help the Prosecution Service to navigate through a complex area of law on a daily basis.
Lastly, the 1861 Act is still in existence because it is no longer the only piece of legislation in on actual bodily harm. The Harassment Act is only one example, and there is also a crime of aggravated assault where the attack was racially motivated. These both cover two types of attack which would have been considered less serious under the old law, either because each individual action was of minimal importance or because the racial element would not have been seen as relevant. The existence of common law doctrines also keeps the Act in line, such as the defence of consent which is still in development. And perhaps most strikingly, all sexual offences have been removed from the Act and replaced with the Sexual Offences Act 2004. This is the most obvious example of the legislation just not being up to scratch any more, and needing complete change.
Wholesale reform or more patchwork?
The question for Parliament is whether the reform of the law of sexual offences also needs to be mirrored with reform of non-sexual offences against the person. There’s certainly a case for it — the 1861 Act was meant as a consolidation device and it no longer performs that function. We are back to the state the law was in before that Act was passed; one main piece of legislation, some common law doctrines and extra bolt-on legislation which made the whole edifice too unwieldy for daily practice. Apart from anything else the legislation is old, and it doesn’t fully reflect the principles of the criminal law which we consider significant today. Where else would one expect to find a statute of offences against the person which doesn’t include murder but has three sections on the use of gunpowder? Reform is necessary for the benefit of citizens, so they can understand the laws which could so easily impact on their lives, for practitioners who have to grapple with archaic language on a daily basis, and in order to bring all the offences into a coherent order which can be readily understood by society and really mean something. If I were to tell you that somebody had been convicted of malicious wounding then you would have little idea of the significance; most English citizens know it as being convicted of causing GBH. The law should reflect that, so that we might understand our own court system a little better!
However, whether reform goes through or not this area of law makes a fascinating study as regards the workings of our legal system. Every jurisdiction has to deal with questions of interpretation and development and even those countries which theoretically work from a Code rather than a precedent system of case law do rely on previous cases for guidance. The fact that we do this so explicitly, and in some cases draw our law from only cases rather than statute, is what makes our legal system so interesting. The fact that it can drag a statute written in 1861 more or less into the 21st century without too many major alterations is a testament to the flexibility in the English and Welsh legal system. This complex interaction of statute and common law is something which you find in almost every field of English law, and it makes legal study all the more interesting.