Non-Fatal Offences Against The Person
Nicola Padfield, Criminal Law, 1998, p189-190:
9.30 The original OAPA 1861 contained many surprisingly specific offences (see 9.1), many of which have now been repealed. Two which seem somewhat archaic are still regularly enforced. First, section 23:
Whosoever shall unlawfully and maliciously administer to or cause to be administered to be taken by any person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence.
See also s 24:
Whosoever shall unlawfully and maliciously administer or cause to be administered to or be taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy any such person, shall be guilty of [an offence].
The maximum penalty for an offence under s 23 is ten years' imprisonment, for an offence under s 24, five years'. Section 23 penalises those who endanger life or inflict grievous bodily harm by poisoning; s 24 requires no such consequence, but there must be an intent to injure.
9.31 Something can be administered directly or indirectly, and administration may even consist of causing the victim to administer the substance to himself. Cunningham (1957) (still the basic case on subjective recklessness: see 3.18) was a case under s 23 where D ‘administered' gas by breaking off the gas meter and allowing escaping gas to fill the next door house.
Gillard (1988) D bought CS gas to attack the doorman of a wine bar. He appealed from his conviction for ‘conspiracy to cause to be administered a noxious thing …' on the ground that administer does not encompass spraying CS gas. CA: upheld his conviction. Administer was an ordinary word which should be left to the jury. There was no need to postulate entry into the body: bringing a noxious thing into contact with the body, directly or indirectly, was enough.
Would assault be a more appropriate charge in the case of someone who sprays CS gas at someone else? Do we need this extra offence?
9.32 There is considerable doubt as to the mens rea for an offence under s 23; for s 24 there is clearly a need for an ulterior intent. The Law Commission (in Law Com No 218) agree with the CLRC (1980) that conduct of the type penalised in s 23 is anyhow covered by their proposed offence of intentionally or recklessly causing serious injury, but they nonetheless propose a variation on the s 24 offence:
(1) A person is guilty of an offence if, knowing that the other does not consent to what is done, he intentionally or recklessly administers to or causes to be taken by another a substance which he knows to be capable of interfering substantially with the other's bodily functions.
(2) For the purposes of this section a substance capable of inducing unconsciousness or sleep is capable of interfering substantially with bodily functions.
This would replace the current need to prove an ‘intent to injure, aggrieve or annoy' with a need to prove simply knowledge that what D administers was capable of interfering with V's bodily functions. Is this offence necessary, or again in all serious cases coming within the clause be covered by intentionally or recklessly causing injury (or attempting to do so)