Offences against the Person

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Producing a clear, modern statutory code to deal with violent offences. We await a government response.

Download the offences against the person report

Download the offences against the person summary

The problem

The main law in dealing with violent offences is the Offences Against the Person Act 1861.

It forms the basis of over 26,000 prosecutions every year. In addition, the offences of assault and battery generate over 100,000 prosecutions a year.

The law has attracted a great deal of criticism, namely:

• the offences are not clearly classified in order of seriousness
• some offences relate to narrowly specialised situations, or include complex lists of situations, rather than setting out a clear principle
• the mental element of some offences is not clearly expressed, and does not reflect the external elements of those offences
• the language is often archaic and obscure
• there are references to obsolete legal concepts and procedures, which are only resolved by interpretation provisions in other statutes.

Frequent changes to the law have left it in an incoherent and confusing state, with more provisions repealed than currently in force.

Such unnecessary complexity can make the law difficult to apply, reduces accessibility and fair labelling and is at odds with the rule of law.

The project

This scoping project formed part of our Eleventh Programme of law reform.

We published a consultation paper in November 2014. In it we examined the current law, analysed the problems with it and tentatively suggested some options for future reform.

We proposed utilising the Home Office’s 1998 draft Bill with some amendments.

These were to reflect both the need for increased efficiency in the Criminal Justice System. And legal developments in the years since it was drafted, particularly in the field of disease transmission.

On consultation, there was broad agreement that reform of the law was necessary, with Lord Chief Justice of England and Wales, the Rt Hon the Lord Thomas of Cwmgiedd, saying that:

“I recognise the problems identified in the paper in relation to the 1861 Offences Against the Person Act. The legislation is out of date and in some areas obsolete; new ways of offending are not adequately captured.”

His Honour Judge Andrew Goymer, for the Council of HM Circuit Judges, said:

“Judges and juries have frequently to grapple with the problems of the current law contained in a statute that is now 154 years old.”

John Atherton, of the National Bench Chairmen’s Forum, said:

“Having started by trying to read and understand the 1861 Act, I was struck by the outdated use of words and phrases. Reading it was akin to plaiting fog.”

Consultees also firmly agreed that we ought to use the Home Office’s 1998 draft Bill as a basis for reform, with certain modifications. The Lord Chief Justice said:

“I think it is sensible that you have based your discussion on the 1998 proposals for a draft Bill, and believe that this is a good model and a firm foundation on which to take forward long overdue reform in this area.”

Recommendations

As a result of the highly positive response to our provisional proposals, the Law Commission recommended:

• the adoption of a modified version of the Home Office’s 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.
• modifications to the draft Bill to preserve the present position on disease transmission pending a wider review involving more input from healthcare professionals and bodies.
• adding in a new summary-only offence of aggravated assault. This would be triable only in a magistrates’ court, and carry a maximum sentence of 12 months. The new offence would appropriately label those who do more than mere assault, since they cause injury, but who don’t deserve a sentence of more than 12 months.
• expanding the offence of threats to kill to also include threats to cause serious injure and threats to rape. All three would be punishable by up to 10 years in prison.
• the repeal of 25 offences to be replaced with 15 new ones
• many more minor changes to things like maximum sentence and definitions as shown in a table published in the report.

Next steps

We published our recommendations on 3 November 2015. We are awaiting a government response.

In this video, Professor David Ormerod QC, Law Commissioner for criminal law, sets out the case for reform.