Offences Against The Person Act 1861

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The Offences Against the Person Act 1861 (OAPA) was a major piece of Victorian legislation passed by the Parliament of the United Kingdom, which consolidated the previously complex mixture of common law and statute into a single Act designed to deal with all the offences which affected the physical health or well-being of people.

Commentary

The OAP was a success in so far as it provided a single source for all the law on this area of human behaviour, but it failed to simplify the law. One of the claimed advantages to the process of codification is that it gives the legislature the opportunity to review an entire area of law and, with an overview, to impose a more logical structure on the whole and to provide better relationships between the different subtopics. One of the claimed disadvantages to writing a civil code such as the France|French Napoleonic code, is that the process of distilling complexity into simple propositions of law is that significant areas of uncertainty are introduced into the law, requiring the courts continuously to interpret whether new examples of behaviour are caught within the generality of the provisions.

Thus, for example, it would have been possible to bring all the provisions on assault together and to structure a rational sequence of offences to range from the most trivial injuries to those causing death. In fact, common assault was defined in s42 and the most serious grievous bodily harm was defined in s18. Further, whereas it would have been possible to write a single actus reus which criminalised the acts and omission (criminal)|omissions causing injury, the Act listed specific methods whereby the harm might be caused. In some cases, these reflected political issues of then great significance. For example, the Fenians were promoting their political case by leaving barrels of explosives in public places. Hence, ss28/30 and 64 specifically address the problem of the resulting injuries so that politicians can be seen to be acting. Similarly, children were throwing stones at passing railway trains (little changes for the better).

The majority of the original provisions contained in the Act have now been replaced so that both the wording is more comprehensible to modern jury|jurors and the substance is better adapted to meet the inventiveness of modern criminals.

Schedule of offences

The following schedule will explain the current position:

  • Section 4 Conspiring or soliciting to commit murder. Conspiracy is now consolidated into the Criminal Law Act 1977. Hamza, R. v [2006] EWCA Crim 2918 (28 November 2006) Section 4 Offences Against the Person Act 1861 applies to the situation where a person incites a foreign national in England or Wales to commit muder outside the jurisdiction.
  • Section 5 Life imprisonment for manslaughter now consolidated into the general Criminal Justice Act series regulating sentence (law)|sentencing.
  • Section 9 and Section 10 Murder or manslaughter abroad. At the height of the British Empire, when questions of sovereignty were routinely discussed, the issue of extraterritorial jurisdiction was of considerable significance. The civil law (common law)|civil jurisdiction for conflict of laws cases were under development to match the movement of people from one state (law)|state to another, and the British criminal courts were claiming parallel jurisdiction if the alleged murderer was a British subject. There is now general criminal jurisdiction for any offence if the consequences of the crime are felt within the territorial boundaries, or a part of the actus reus of the offence is committed within the jurisdiction. This is an expansion of the s10 provision, now termed initiatory or subjective jurisdiction where the offence is begun within the jurisdiction, and terminatory or objective jurisdiction for crimes completed within the jurisdiction:
section 9. Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, ... may be dealt with, inquired of, tried, determined, and punished ... in ... The United Kingdom Provided, that nothing herein contained shall prevent any person from being tried in any place out of ... Ireland for any murder or manslaughter committed out of the United Kingdom in the same manner as such person might have been tried before the passing of this Act.
s10. Where any person being [criminally] stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England or Ireland, shall die of such stroke, poisoning, or hurt in England or Ireland, or, being [criminally] stricken, poisoned, or otherwise hurt in any place in England or Ireland, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England or Ireland, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, may be tried... in England
  • s16. Threats to kill, whether premeditated or said in anger, remain an offence where the defendant intends the victim to fear it will be carried out (now also s4 Public Order Act 1986).
  • s17 Impeding a person endeavouring to save himself or another from shipwreck. Shipping was the lifeblood of the Empire and specific offences to protect seamen were common but no longer considered necessary.
  • s18 'Wounding, with intent to do grievous bodily harm, or to resist apprehension. This is the most serious offence short of murder and still in force. This is the charge of most general application and, although many of the following offences identify the specific means for causing GBH, these other offences are only used in high-profile cases where the trial (law)|trial is intended to represent more general public condemnation. See:Wounding/Causing Grievous Bodily Harm with Intent
s18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, ... with intent, ... to do some ... grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable ... to be kept in penal servitude for life ....
  • s20 Inflicting bodily injury, with or without weapon. This is the second most serious offence short of murder and still in force.
s20. 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, and, being convicted thereof shall be liable ... to be kept in penal servitude ....
  • ss21 and 22 Attempting to choke, &c., in order to commit or assist in the committing of any indictable offence. Certain forms of attack have always been viewed with particular horror and the use of strangulation or drugs to render someone unconscious with a view to committing a crime require special treatment. Contemporary crime including date rape following the use of hypnotic drugs such as Flunitrazepam show that little has changed save that where the intended offence is of a sexual nature, separate legislation applies.
  • ss23 and 24 cover the insidious forms of attack based on administering poisons or other dangerous chemicals and substances intending to injure another. Although rarely used today, the offences remain available should the specific circumstances arise, e.g. sending a package containing a dangerous substance to an embassy.
  • s26 Dealt with the problem of neglect by an employer who failed to provide adequate food, clothing and accommodation for staff and servants (repealed).
  • s27 Created a specific offence for those who abandoned babies: now dealt with as infanticide.
  • ss28, 29,30 and 64/5 created a range of criminal offences supplementing the Explosive Substances Act 1883 and the Explosives Act 1875. These remain in force except that the Criminal Damage Act 1971 covers all aspects of the resulting damage to property and the Terrorism Act 2000 links possession to terrorist purposes.
  • s31 addressed the problem of those who wished to protect their property with hidden traps.
  • s32/34 proetcted the railways from those who place obstructions on the line, throw stones at the passing trains, and generally endanger the passengers
  • s35 The offensive of furiously driving a carriage is now repleaced by motor vehicle offences to reflect the same behaviour but new technology.
  • s36 Specific protection for clergymen carrying out their public duties is now covered by the Public Order Act 1986 offences.
  • s37 Magistrates and other court officers no longer act as coast guards to act to preserve life and, where possible, save ships from being wrecked.
  • s38 Assault with intent to resist arrest remains an offence unless it is an assault on a constable in the execution of his/her duty which is now s89(1) Police Act 1996.
  • s39 The trade in grain and other staples no longer requires specific protection.
  • s40 It is no longer considered necessary to protect seamen while carrying out their duties. An assault is committed on any person regardless of status, gender or function.
  • s43 Was the aggravated form of assault on children and women (repealed).
  • s47 Assault occasioning actual bodily harm. Still in force:
47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable ... to be kept in penal servitude ...; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding one year ....
  • s48 Rape (repealed: now Sexual Offences Act 2003).
  • s52 Indecent assault upon a female (repealed: now Sexual Offences Act 2003).
  • s53 Forcible abduction of any woman with intent to marry or carnally know her (repealed: this would be charged as the common law offences of kidnapping and false imprisonment accompanied by additional charges of rape, and/or human trafficking under the Sexual Offences Aact 2003.
  • s55 Abduction of a girl under sixteen years of age (repealed: now Sexual Offences Act 1956)
  • s56 Child abduction (repealed)
  • s57 Bigamy
Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years; Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.
Nothing herein contained to extend to second marriages in the cases herein mentioned.
  • s58 Abortion by unlawfully administering any poison or noxious thing is an offence contrary to s58 (note the Infant Life Preservation Act 1929) but s1(1) Abortion Act 1967 permits a medical termination of a pregnancy:
when a pregnancy is terminated by a registered medical practitioner if two registered practitioners are of the opinion, formed in good faith...' that one of four sets of circumstances apply, notably s.1(1)(d) '...that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.'
  • s60 Concealing the birth of a child.
60. If any woman shall be delivered of a child, every person who shall, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavour to conceal the birth thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years ...:
  • ss61/2 Dealt with buggery, sodomy and bestiality. The Act abolished the death penalty for buggery. These offences are now replaced by the Sexual Offences Act 1956 and 1967 (repealed: now Sexual Offences Act 2003), with the age of consent to buggery and to certain homosexual acts, reduced by the Sexual Offences (Amendment) Act 2000, from 18 to 16 years in England and Wales.
  • s63 This definition of carnal knowledge is no longer required.


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