The Offences Against the Person Act 1861 - Essay Example

The Offences against the Person Act 1861 INTRODUCTION The Offences against the Person Act 1861 has been criticized as confusing, archaic, impractical, and weak in achieving an effective justice system. Calls to reform this law are rooted on the loopholes of this important piece of criminal legislation. According to Straw, this “out-moded and unclear Victorian legislation is one of the workhorses of the criminal law, responsible for 80,000 cases a year.”1 Indeed, non-fatal offences clog the court dockets as they constitute majority of court cases—costing a great deal of taxpayers’ money. It has resulted to unnecessary appeals due to mistakes in questions of law.2 Therefore, there is a need to modernize this 140-year old legislation. In fact, Justice Brooke opined that it is “intolerable that an important law covering criminal assaults, batteries and wounding…should be based on the antique and obscure language of an Act.”3 In a nutshell, the Act is outdated, unclear and unfit for its purpose. ANTIQUATED HIERARCHY According to Lacey, et al., “the somewhat imperfect hierarchy of the Act reflects both the differences in the seriousness of the injury and harm and in the mental element.”4 Indeed, it can be seen that assault and battery carry a low penalty (6 months imprisonment) compared to Section 47 (five years)—with only a little difference in the effect and manner of committing the crime.5 Moreover, offences in Section 20 and 47 share the same maximum sentence of five years despite the seriousness of offences in the former as compared to the latter. This is certainly an illogical consequence of this obsolete legislation—“a rag-bag of offenses brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form.”6 The Law Commission has also pointed out the Act’s weaknesses especially “the failure of sections 18, 20 and 47 to produce a reasoned scale of offences based on the seriousness of the injury intended or caused, or to distinguish properly between the seriousness of offences on that basis.”7 It has been therefore suggested that a new legislation should structure a logical sequence of offences ranging from the lesser to the most serious crimes. Legal scholars thus believe that the Act should now put hierarchical lines on the level of seriousness and moral differences—with a great degree of specificity to make it unmistakably clear-cut. Consequently, there must be clear foundations in structuring various levels of culpability or different circumstances in which the offence is committed that would justify the existence of separate crimes.8 For instance, the penalties of the offences should have been organized to be more reflective of the essence of the crime and its relative moral depravity or seriousness. It is however quite noticeable that the 1861 Act failed to consider the nomenclature of the offences in arranging the sections of the law—resulting to illogical descriptions and flawed order of the crimes. LACK OF CLARITY Complexities in s 18, 20 and 47. The best way to exemplify the proposition that the Act is unclear is to examine the specific sections on assault. The lack of comprehensible statutory definition of assault and battery has confounded many legal luminaries. Assault in OAPA 1861 appears antiquated and ambiguous. In fact, ‘assault’ has become a problematic offence since the word itself may be interpreted in either narrow or broad sense.9 Therefore, the fact that it is a statutory offence10 should have resulted to a precise definition and the required mens rea; nevertheless its definition is actually found in decided cases—creating a complication whether assault is a common law or statutory offence or both. Assault in common law refers to an “act by which a person causes another to apprehend immediate and unlawful violence.”11 The actus reus of assault has led to legal confusion particularly on the what constitutes an “act.” For instance, whether a mere silence which has resulted to psychological suffering (i.e. strange silence in telephone calls) can be considered an “act” was the issue in Ireland12 ruling in the end that assault can be committed by mere words or silence. Some therefore assumed that any behaviour may cause ‘assault’ as long as it yields the relevant reaction of psychological fear in the victim.13 On the other hand, there are those who believe otherwise and argue that Meade and Bealt has established long ago that “no words or singing could ever constitute an assault.”14 While this long standing vagueness has been settled by case law, debate in its interpretation may still emerge which could have been avoided if there is a clear definition and guidelines set out in OAPA 1861. Another problem lies in the ambiguity in the application of ‘assault’ as its commission may or may not involve physical contact. Assault is so often interchangeably used with battery. In fact, the fact that judges, parliament, lawyers and academicians use the term assault in two different senses has been a great cause of confusion.15 However, Fagan have clarified that “assault is an independent crime” yet further said that “for practical purposes today is generally synonymous with the term battery.”16 This perhaps is the reason why the Law Commission proposed to amend common assault and battery by replacing them with a new offence of assault that combines their elements. To avoid confusion in judgments, there should however be a rational arrangement of sections in the law, such as putting all the relevant provisions on assault in one intelligible article rather than allowing it to be spread through the Act. Furthermore, the law is inconsistently worded and phrased. Sections 47, 20 and 18 have different words describing the manner of consummating the crime, but the deviations are actually a “haphazard outcome of pulling together disparate provisions under one consolidating Act” rather than an intentional indication of different meanings.17 Thus, ‘bodily harm’ could be “occasioned,” “caused,” or “inflicted” by the defendant under s 47, 20, and 18 respectively.18 It must be noted that ‘occasioned’ and ‘caused’ has something to do with whether the outcome or harm was the ‘reasonable foreseeable consequence’ of what the defendant did. So naturally, they should have separate meanings in law than the word ‘inflicted’. These perplexities have been further manifested in the controversial legal debate whether psychiatric illness amounts to bodily harm as contemplated in s 47, 20, and 18. It has been argued that the legislative intent did not contemplate psychiatric illness as a bodily harm.19 Modern authorities hold the contrary view saying that the words of the Act should apply to our contemporary knowledge about psychiatric injury as affirmed by the Court of Appeals in R v Burstow.20 This apparently stems from the much confusion brought about by the ill-defined and unclear language of the law. Accordingly, since this conflict of interpretation of s 18 and s 20 has reached the House of Lords for the third time within a ten-year span, the urgent need for new legislation has gained momentum in order to make the OAPA 1861 well-adapted and fit to the modern times.21 These are only examples of provisions in 1861 Act which illustrate its antiquity and lack of clarity. In the words of the Law Commission particularly referring to ss. 18, 20, and 47: The language of the act is so complicated, obscure and old fashioned; and the structure of the three sections is so complicated and technical; that mistakes by lawyers and complete unintelligibility to the layman were eventually bound to result.22 For these reasons, the Act should have embodied precise definitions of crimes, capturing in easy terms the required actus reus and mens rea so that courts and legal minds will not scuffle on the appropriate interpretation and application of the law. Clarkson thus advised that “given that criminal law is a communicative enterprise, the labeling and structuring of offences must be done in a manner that assists, rather than obscures, communication.”23 CONCLUSION The OAPA 1861 has been enacted for the purpose of defining criminal liability. It was supposed to be a legislative piece that would label and control felonious acts. Contrary to this, the drafters of the law failed to consider the nature of criminal law as the major component of the justice system. Its unsystematic arrangement coupled by its antiquity has made this legislative text unfit in governing the justice system in contemporary times. The lack of textual clarity and definitional precision are indeed the reason for the law’s inability to cope with the complexities of the modern times.24 The desired purpose of criminal law may have been achieved if this piece of legislation had been more fixed in setting the boundaries of legitimate construction. For example, the Act failed to create distinct and fair labeling for crimes with significant moral difference and degree of culpability. Therefore, its lack of coherence and specificity has contributed to the legal dilemma where laymen, lawyers, and judges clash in statutory interpretations—making it a potent target for reconstruction to erase its badges of antiquity, unsuitability, and ambiguity. Bibliography Allen, M. (2007), Textbook on Criminal Law, Oxford University Press, Oxford. Ashworth, A. & Mitchell, B. (2000), Rethinking English Homicide Law, Oxford University Press, New York. Lacey, N., Wells, C., & Quick, O. (2003), Reconstructing Criminal Law: Text and Materials (3rd ed.), Cambridge University Press, New York. Law Commission (1993), Report on Non-fatal Offences against the Person. The Law Reform Commission, viewed on 15 Jan. 2010, Molan, M., Bloy, D., & Lanser, D. (2003), Modern Criminal Law, Cavendish Publishing Limited, United Kingdom. O’Riordan, J. (2003), A2 Law for OCR, Heinemann Educational Publishers, Oxford. Reform of assault law (1998), BBC News, 11 Feb. 1998, viewed on 15 Jan. 2010, Reforms-OAP 1861 (n.d.), Sixth Form Law, viewed on 15 Jan. 2010, Stone, R. (1999), Offences Against the Person, Cavendish Publishing Limited, United Kingdom. Violence: Reforming the offences against the person act 1861 (1998), homeoffice.gov.uk, viewed on 15 Jan. 2010, Read More