Offences against the Person: Into the 21st Century
| Author | Michael Jefferson |
| Date | 01 December 2012 |
| DOI | 10.1350/jcla.2012.76.6.805 |
| Published date | 01 December 2012 |
| Subject Matter | Article |
Offences against the Person: Into
the 21st Century
Michael Jefferson*
Abstract The Law Commission will shortly begin discussions on reform of
the law of non-fatal offences by issuing a scoping paper. This article starts
with a review of recent improvements in the ways in which the Commis-
sion may get its Bills enacted. It then critiques the principal (to modern
eyes) crimes of this kind found in the Offences against the Person Act
1861. Its focus lies on those offences and not the more policy-driven law,
for example, on the transmission of HIV/AIDS, sado-masochism, male
circumcision, and boxing (all of which are highly important). It concen-
trates on the Commission’s previously expressed concerns that the
statute’s language is archaic and that the Act fails to provide a hierarchy (a
‘ladder’) of offences. It concludes with a redraft of the statute and a quote
from Henry LJ in Rv Lynsey that ‘Bad laws cost money and clog up the
courts with better things to do’.
Keywords Non-fatal offences; Occasioning actual bodily harm;
Grievous bodily harm; Wounding; Mens rea
The Law Commission as it noted in its Eleventh Programme of Law Reform1
has been invited by the Ministry of Justice to carry out a scoping exercise
as the first step towards reform of the law of non-fatal non-sexual
offences, with work to start in winter 2012 and with the paper to be
ready in autumn 2013. The Programme itself2speaks only of the Offences
against the Person Act 1861, but the law is wider covering in particular
assault and battery and indeed one problem is knowing the width of
‘offences against the person’3and no doubt that is why a scoping paper
* Senior Lecturer, University of Sheffield; e-mail: m.jefferson@sheffield.ac.uk.
1 Law Commission, Eleventh Programme of Law Reform, Law Com. No. 330, HC 1407
(19 July 2011), available at http://lawcommission.justice.gov.uk/docs/lc330_eleventh_
programme.pdf, accessed 30 October 2012. The year 2011 marked the 150th
anniversary of the statute and the 25th anniversary of the publication of the
excellent article by C. Clarkson and H. Keating, ‘Codification: Offences against the
Person under the Draft Criminal Code’ (1986) 50 JCL 405. For some kind of
defence of the current law, see J. Gardner, ‘Rationality and the Rule of Law in
Offences against the Person’ [1994] CLJ 502 (also appears as ch. 2 of J. Gardner,
Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford
University Press: Oxford, 2007).
2 Law Commission, above n. 1 at 18.
3 For example, are assaults on the police covered? This article has already spoken of
‘non-fatal non-sexual’ offences, but it is by no means unknown for sexual offences
to be treated as non-fatal offences. The view is taken that since such offences were
recently considered by Parliament in the Sexual Offences Act 2003, they will not be
discussed by the Law Commission. As will be seen, that leaves much law to be
considered. Similarly, what about consent in the context of non-fatal offences? The
classic legal philosophical study is by Paul Roberts in the Law Commission’s
Consultation Paper No. 139, Consent in the Criminal Law (1995). Boundary issues
also include domestic violence, and indeed it is arguable that if the law on consent
in R vBrown [1994] AC 212, HL, the case of the homosexual sado-masochists, is
amended, there may be a need for further investigation into what the parties say is
consented to, (sexual) violence, but which is in truth a cover for domestic violence.
Lawful chastisement is an area where strong feelings are aroused, especially among
472 The Journal of Criminal Law (2012) 76 JCL 472–492
doi:10.1350/jcla.2012.76.6.805
is the first stage of reform. This article considers criticisms that may be
made of the current law of non-fatal (and non-sexual) offences, but
including only those found in the 1861 statute. The particular wording
of the 1861 Act is the focus of the inquiry and not the possible defences,
which are important in their own right. The focus is on whether the
Commission is correct in its criticisms of the 1861 Act or not:
●it is ‘outdated. It uses archaic language and follows a Victorian
approach of listing separate factual scenarios, many of which are
no longer necessary (see for example the section 17 offence of
impeding a person endeavouring to save himself from a ship-
wreck)’; and
●‘[t]he structure of the Act is also unsatisfactory as there is no clear
hierarchy of offences and the differences between sections 18, 20
and 47 are not clearly spelt out . . .’.
certain Christian sects, but since this area of law has recently been changed (see the
Children Act 2004, s. 58) it may be prudent to avoid considering this topic: to deal
with it may distract from the main purpose of the review—revision of non-fatal
offences. At the time of writing a second controversial issue is that of male
circumcision, which is lawful even if the purpose is to improve sexual pleasure:
A. Grubb (ed.), Principles of Medical Law, 2nd edn (Oxford University Press: Oxford,
2004) 240. The principal UK commentators are M. Fox and M. Thompson; see, e.g.,
‘A Covenant with the Status Quo’ (2005) 31 J Med Ethics 463. See also H. Gilbert,
‘Time to Reconsider the Lawfulness of Ritual Male Circumcision’[2007] EHRLR
279. The argument is that slicing off perfect human tissue should be unlawful, but
cf. T. Elliott, ‘Body Dysmorphic Disorder, Radical Surgery and the Limits of
Consent’ [2009] Med LR 140 on, e.g., apotemnophilia (removing healthy limbs).
Male circumcision is also in the news because of a ban by a German lower court
in Cologne on the practice (which led to a joint Jewish/Muslim protest in Berlin on
9 September 2012) because of the evidence in its favour as a method of preventing
the spread of AIDS. Female cutting is unlawful: see, e.g., Female Genital Mutilation
Act 2003. The Law Commission would be well advised to stay clear of such topics if
it wishes to have its proposals enacted. Another highly controversial aspect is the
use of the statute against those who transmit STIs, especially HIV/AIDS. The
standard international work is UNAIDS, Criminal Law, Public Health and HIV
Transmission: A Policy Options Paper (2002). See the publications by Matthew Weait,
in particular Intimacy and Responsibility (Routledge-Cavendish: Abingdon and New
York, 2007), for arguments in favour of decriminalising such infecting. There is a
hard-hitting book review by U. Schüklenk (2008) 4 International Journal of Law in
Context 277. A more favourable one is by J. Rollins (2008) 18 Law and Politics 598.
For other articles, see W. Brown, J. Hanefeld and J. Welsh, ‘Criminalising HIV
Transmission: Punishment without Protection’ (2009) 17 Reproductive Health Matters
119 and C. Dodds, A. Bourne and M. Weait, ‘Responses to Criminal Prosecutions
for HIV Transmission among Gay Men with HIV in England and Wales’ (2009) 17
Reproductive Health Matters 135. Both contain references which constitute a part
bibliography. The controversy is concerned with whether criminalising the
transmission of HIV should continue to be regulated by the criminal law or whether
the criminal law should be withdrawn in order that public health is prioritised.
Schüklenk’s most recent article is a joint one with S. Philpott, ‘AIDS: The Time for
Changes in Law and Policy is Now’ (2011) 7 International Journal of Law in Context
305. The latest relevant articles are J. Slater, ‘HIV, Trust and the Criminal Law’
(2011) 75 JCL 309 and L. P. Francis and J. G. Francis, ‘Criminalizing Health-Related
Behaviors Dangerous to Others? Disease Transmission, Transmission-Facilitation,
and the Importance of Trust’ (2012) 6 Criminal Law & Philosophy 47 (the title belies
to some degree the content, which is about decriminalisation). The view of the
writer is that those seeking to exclude the transmission of sexual diseases from the
scope of the criminal law have not proven their point, but the issue like that of
consent is highly controversial. The topic is too controversial, however, to be
discussed in an article of this type, which is a more general review of the offences.
Similarly, with regard to consent noted above in this note and in the text.
Offences against the Person: Into the 21st Century
473
To continue reading
Request your trial