criminal law Acts

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Offences Against the Person Act 1861

The Offences Against the Person Act 1861 (the ‘Act’) was one of a number of pieces of legislation in the same year to consolidate numerous areas of law into single pieces of legislation. However, aside from simply consolidating existing law, the Act reveals much about the social and political environment in which it was enacted. The Act has been referred to as partaking in a ‘civilizing offensive’[1] reflecting the changing attitudes towards violence in 19th century England. As discussed below the Act continued a process of limiting legitimate State violence by restricting the use of the death penalty. The Act further reflects changing attitudes towards violence between citizens, bringing together, and to a lesser extent adding to, the range of recognised violent offences. In the 18th and 19th centuries it was not uncommon for disputes to be settled by fights or, more formally, duels.[2] Over time this was gradually viewed as ‘inconsistent with ideals of civilized conduct… such that over the course of the 19th century steps were taken to stamp the practice out.’[3]

A number of the offences contained within the Act further reveal concerns over discrete types of violence which were of significant political concern at the time. For example, the 19th century saw an increase in nationalistic sentiment in Ireland with corresponding attacks of violence by interested groups. Sections 28 – 30 and 64, concerning the use of gunpowder to cause injury, reflect an attempt to address what we might today refer to as terrorist attacks. This period in history further included the development of England’s dominance at sea, and correspondingly sections 17, 37, 40 and 68 each have a maritime element. Similarly, the 19th century saw the development of railway and the steam engine, and sections 32 – 34 of the Act address offences which endanger rail passengers. As can be seen, the Act not only concerns a shifting attitude towards violence generally, but addresses very particular types of violent acts which emerged with new technologies and political concerns of the age.

Lyndsay Farmer explains how assaults and other violent acts were originally both civil and criminal matters. Typically more serious offences were pursued by the state; however, the prosecution of the vast majority of less serious offences were conducted privately with ‘a view to securing compensation or an apology, effectively excluding the State from responding to the original violence.’[4] The development of the law of offences against persons and the creation of new offences, culminating in the Act, was thus in part aimed at increasing the state’s involvement in the prosecution of less serious acts of violence. This is reflected in the specificity of certain provisions which ‘underlined the importance of the status of certain persons (such as judges, privy counsellors, or revenue officers) or places (churches or the Kind’s palace) to the criminal law.’[5] As highlighted above, however, the Act was in fact one of many in a program of consolidation which occurred in 1861, and as such it aims to simplify the law specifically relating to offences against persons, bringing all the relevant legislative provisions within one statute. In much the same way, the Larceny Act 1861 consolidates various laws relating to larceny, and the Forgery Act 1861 to forgery etc.

The Act identifies itself as being one to ‘consolidate and amend the State Law of England and Ireland relating to Offences against the Person.’[6] The most obvious change to the law, therefore, was to bring together various offences into a single act. Andrew Ashworth comments how the leading approach to classifying offences in Victorian England ‘would be to create separate offences to cover many of the situations in which violence occurs…’[7] which explains why the Act, as a piece of predominantly consolidating legislation, refers to offences as disparate as ‘impeding a person endeavouring to save himself from shipwreck’[8] to ‘attempting to choke’[9] to ‘placing gunpowder near a building’.[10] Although primarily focussed with consolidation, the Act did make some attempt to address the specificity of the consolidated offences, for example Section 15 concerned attempts to murder ‘by any means other than those specified in any of the preceding sections.’[11]

The Act further continued a process of reform of capital punishment which had begun in the early 19th century. At the turn of the century some 220 offences were punishable by death, many of them property offences.[12] This number was reduced by several pieces of legislation, until by the Offences Against the Person Act 1861 there remained four capital offences; ‘murder, high treason, piracy with violence, and arson in the Royal Dockyards.’[13] The Act itself removed the death penalty for non-fatal offences against people.

Finally, whereas Section 15 above was an attempt to catch related offences not covered by preceding provisions, the Act also established a very limited number of new offences. Much of the Act has now been repealed by subsequent legislation; however the offence of assault occasioning actual bodily harm,[14] for example, has continued to be prosecuted to the present day from its inception in the Act. Despite the longevity of some of the offences which remain in force today, the Act receives significant criticism and numerous attempts at reform have been made, most recently in 2014. As Nicola Padfield critiques, ‘the language is shockingly out of date’[15] and ‘there is no need for a specific offence of assaulting or obstructing clergy.’[16] For example, there is case law which informs that the term ‘maliciously’ as it appears in the Act does not in fact have its ordinary definition, but is interpreted as meaning ‘intentionally or recklessly.’[17] Michael Jefferson adds further to the criticism, highlighting how many of the possible punishments in the Act, such as whipping and doing hard labour, no longer exist today, and he questions ‘if the punishments are so out of date, surely the crimes must be to?’[18] Such criticisms of the Act, indeed call for reform, are reflected in judicial commentary, for example Henry LJ comments that ‘the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it, and make it trap-free.’[19]

Bibliography

Offences Against the Person Act 1861

R v Cunningham[1957] 2 QB 396

R v Jonathan Simon Lynsey [1995] 2 Cr. App. R. 667

Ashworth, A., Principles of Criminal Law (5th ed., Oxford University Press 2006)

Farmer, L., Making the Modern Criminal Law: Civil Order and Criminalization (1st ed., Oxford University Press 2016)

Jefferson, M., ‘Offences against the person: into the 21st century’ (2012) 76(6) Journal of Criminal Law 472

Knowles QC, J., The Abolition of the Death Penalty in the United Kingdom (The Death Penalty Project 2015) < http://www.deathpenaltyproject.org/wp-content/uploads/2015/11/DPP-50-Years-on-pp1-68-1.pdf> accessed 10th February 2016

Padfield, N., ‘Reform of offences against the person’ (2015) 3 Criminal Law Review 175


[1] Lindsay Farmer, Making the Modern Criminal Law: Civil Order and Criminalization (1st ed., Oxford University Press 2016) p. 262

[2] Ibid., pp. 246 - 247

[3] Ibid.

[4] Lyndsay Farmer, op. cit., p. 237

[5] Ibid., p. 241

[6] Offences Against the Person Act 1861

[7] Andrew Ashworth, Principles of Criminal Law (5th ed., Oxford University Press 2006) p. 308

[8] Offences Against the Person Act 1861, s. 17

[9] Ibid., s. 21

[10] Ibid., s. 30

[11] Offences Against the Person Act 1861, s. 15

[12] Julian Knowles QC, The Abolition of the Death Penalty in the United Kingdom (The Death Penalty Project 2015) p. 9 < http://www.deathpenaltyproject.org/wp-content/uploads/2015/11/DPP-50-Years-on-pp1-68-1.pdf> accessed 10th February 2016

[13] Ibid., p. 13

[14] Offences Against the Person Act 1861, s. 47

[15] Nicola Padfield, ‘Reform of offences against the person’ (2015) 3 Criminal Law Review, p.175

[16] Ibid.

[17] R v Cunningham [1957] 2 QB 396

[18] Michael Jefferson, ‘Offences against the person: into the 21st century’ (2012) 76(6) Journal of Criminal Law 476

[19] R v Jonathan Simon Lynsey [1995] 2 Cr. App. R. 667