Offences against the Person Act 1861 - Case Study Example

Offences against the Person Act 1861 Introduction: The Offences against the Person Act 1861 was passed by British Parliament around 140 years ago, during the Victorian Era, and dealt with issues arising out of non-fatal injuries. Thus, the scope of Offences against the Person Act 1861, cannot be invoked in intricate and contemporaneous cases involving murder, manslaughter, or other fatal kinds of injuries. Perhaps one of the most important drawbacks of this law in the present context has been the use of outdated and outmoded language and rules which may not be able to serve in Court settings of the present genre, nor could be used for passing judgment or sentences in today’s judicial scenarios. To be fair, no much of the blame could be passed on to these lawmakers, since they wanted to have one integrated legal document that could possibly handle the genre of criminal offences that occurred during the Victoriam era. Passage of Criminal Law Constitution Acts and Sexual Offences Acts: Much water has flown down the Thames since that time. Many of the provisions of this obsolete law has been subsequently reviewed and amended through the enforcement of various later laws, notable among them being the Criminal Law Constitution Acts and Sexual Offences Acts. As a matter of fact many of the provisions may not be tenable under 21st Century practices and need to be watered down to suit modern contemporary enforcements, otherwise they run the risk of being either too severe, or too lenient with regard to confirmed or potential offenders who may have committed, or would be committing criminal offences in future of the non lethal type. Some of the controversy surrounding OAPA 1861 could be in terms of the relevance and application of Section 20 of this Act, which, inter alia states, “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 misdemeanour, and being convicted thereof shall be liable […] 34 to be kept in penal servitude” (Offences against the person Act 1861 2006, P.3). The aspect that needs to be considered in the present study is the differences in sentencing between deliberate and reckless transmission of communicable diseases, say HIV. While OAPA believes that reckless transmission without any real intention is not a cognizable offence, the Law Commission is of the considered opinion that reckless harm also needs to be brought within the ambit of jurisprudence. “In LC218 the Law Commission were unequivocal that the Offences Against the Person Act 1861 could be used to prosecute the transmission of disease, and recommended that the proposed new offences should enable the intentional or reckless transmission of disease to be prosecuted in appropriate cases” (Violence: Reforming the offences against the person Act 1861 1998). Today, HIV ceases to be a dreaded disease: For instance if an HIV positive person has consensual sexual intercourse with another person, without disclosing his true HIV condition, in such a case the matter of consent of partner is invalid and the crime is punishable. But it is believed that criminalization cannot prevent the spread of HIV, less so the incidence of sexual intercourses among consenting adults, one of whom may be abating HIV virus. It is now common knowledge that many HIV positive cases are well controlled (cases detected at early stages) and HIV patients could lead normal lives as well as healthy normal persons does. Thus the criminalization as suggested by Section 20, “compounds the evil rather than combating it” (Cameron, Barris & Clayton 2008). Regina v. Mohammed Dica case: Perhaps the Mohammed Dica case, being the first convicted case relating to HIV in UK, has attracted country wide attention and needs to be expounded upon. In Regina v. Mohammed Dica, the latter was held responsible for infecting consenting sexual women with HIV. He was sentenced to imprisonment but has appealed against his sentence on the grounds that he had taken consent of his sexual partners “The effect of this judgment in relation to s.20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.” (Lord chief justice of England and wales: Lord Justice Judge and Mr Justice Forbes 2004). Regina. v. Clarence case: This case is analogous to that of Regina. v. Clarence in which the Courts held that a man who transmits a communicable disease to his wife is, nevertheless, guilty of Grievous Bodily Harm (GBH) on the logic that if she were aware of his condition, she would not have consented to his desires. But it could be argued that the mere fact that a “mere suppression of a fact” cannot make an otherwise legal act, illegal, criminal and punishable by law. (Clarence 1888, p.1121). R v Brown [1993] 2 All ER 75 HOL: The subject of OAPA has been discussed comprehensively in the R v Brown [1993] 2 All ER 75 HOL. In this case, it had to pass judgment in this case relating to sado-masochism, The Court observed that ,“It has been suggested that if the act done is otherwise unlawful then consent cannot be a defence, but it can be a defence, if the act is otherwise lawful, in respect of injury which is less than really serious injury ” (R v Brown [1993] 2 All ER 75 2008). Why is it termed as outdated or obsolete? The main idea behind the passing of the OAPA during 1861 was to have a common set of laws that took care of each kind of violation of human conduct and behaviour. However, it could not be practically implement able since the use of Codes would necessitate Courts to consider whether the kind of offence could be seen within the ambit of the existing law that is the OAPA 1861. This, in turn not only gives rise to misinterpretation of law, but also adds elements of doubts and uncertainties into the system. Moreover, there were many aspects of social evils prevalent during that time, that have been consigned to history over time, and many of the provisions of archaic laws with regard to political developments at that time have found relevance in the act. For instance, under the prevailing political condition at that time, the Fenians were using public places for placing explosives for harming passerby’s that may to be relevant in present context. Besides, with the repeal of the death penalty in the UK, Sections 1-3 of OAPA 1861 are no longer in vogue. It is now necessary to consider the present context of reforms in the OAPA 1981 through the following: Serial Archaic laws Repealed or Amended 1. Sec.1-3 - Death penalty -Murder Repealed 2. Sec. 4- Solicitation to commit murder Now under conspiracy- taken over by Criminal law Act 1977 3. Sec. 5- Manslaughter is punishable Now under the ambit of Criminal justice Act 2003 4. Sec 9-10- Murder or manslaughter Scope has been changed 16 Sec 16- Threat to kill Modified through Public Order Act 1986 Life Sentence now under Criminal Justice Act 2003 17 Sec 21-22- portion relating to Sexual Offences Sexual offences now come within the jurisdiction of separate Sexual Offences Act 18 Section 27- punishment for those who abandon babies Superceded by child cruelty as seen in Children and Young Peoples Act 1933. 19 Section 35- high speed negligent driving of motor vehicles Has been abrogates with the passing of Road Traffic Act 1988 which considers dangerous driving. 20 Section 48- Rape offences including date rapes Now fully documented in Sexual Offences Act 21 Section 61 & 62 Now fully considered under Sexual Offences Act Many of its leading provisions have been expunged or amended: It is thus seen that over passage of time, much of the prevailing provisions in OAPA 1861 have either been repealed due to extinguishment of its nature of offence , or have been merged and broadened with new laws. However, it is seen that certain sections in OAPA 1861 especially Section 20, 26, 27, 47, etc. which may be used by the Courts from time to time appropriate to the situation. Jail sentences to HIV patients would only serve to exacerbate the condition: Coming next to the various modes of punishment for offences under OAPA, it is believed that jail imprisonment or deportation for HIV offenders only seeks to exacerbate the already grave situation. One on thing, UK prisons are notorious for the practice of unsafe, condom- less sexual activities and this could impact upon the lives and future of such offenders, if they are to be imprisoned or even deported. Deportation is even harsher, since many countries do not have proper medication for HIV, nor proper treatment facilities, which in effect means early death for such patient offenders. “We submit that prison is not ordinarily an appropriate form of punishment for someone with HIV convicted of reckless HIV transmission. Non-custodial alternatives should be considered. Deportation orders for these offences should not be made to countries where appropriate HIV treatment is not available” (Assaults and other offences against the person sentencing advisory panel consultation 2005, P. 6-7). Why is it termed as Unclear? “The Offences against the Person Act was already outdated when it was passed by Parliament in 1861. Five years ago the chairman of the Law Commission, Mr. Justice Brooke, said it was intolerable that an important law covering criminal assaults, batteries and woundings - which is used more than 80,000 time a year - should be based on the antique and obscure language of an Act passed 130 years earlier”(UK: Politics reform of assault law 1998). This Act in itself was not a comprehensive reaffirmation of legal precepts and did not address all issues that could emanate although it was believed to do so. For instance it did not delve into aspects of duress and self-defence which is as much in the area and ambit of OAPA as anything else. Moreover, it was not a well defined and robust Act as it purported itself to be. To be honest, OAPA was itself a rehash of a number of earlier laws blended together to suit contemporaneous situations and was under the scanner, for failing, in certain cases to acquit itself reasonably. Besides, over the years crime and criminal minds had changed conspicuously, and the use of age old Victorian laws may not really be what the doctor ordered in so far as application of law to crime fighting and determination was concerned. Thus there was crying need for reforms in this critical area, since non fatal genres of crimes were not competent to control and fight crimes of different types, especially with the deviant yet brilliant minds of criminals seeking new and innovative criminal practices. Role of the Law Commission: The Law Commission published its LC 218 based on the current scenario in the country, what are the major deficiencies in the present system and how these could be greatly improved, given that the archaic Victorian laws need to be revamped and restructure to suit and meet current criminal demands, of the non fatal sort. Perhaps what stands out on a detailed examination of OAPA is that it is at best a potpourri of statute and common law, handed over from one era to another, which is crying for reforms of the major kind. There are reasons to believe that law as envisaged by this Victorian law has more or less ceased to be of major import, although one hastens to add that some of its provisions are still the objects of jurisprudential attention and consultations like Section 20, 47, etc. Perhaps the defect caused due to lack of one single law that could attend all kinds of body offences is visible and needs to be urgently addressed to. The LC 218 has considered the need for major reforms in the Act, especially with regard to Grevious Bodily harm (GBH) and actual bodily harm (ABH). The essential difference between GBH and ABH could be one of intent or motive of the perpetrator and its impact on the sufferer. They need not only be of the physical kind, but could also be mental and psychological, causing mental distress and harassment, intention to mentally hurt the person etc, through words and actions. Again besides intentions, there are also other factors that gain credence from case to case, according to the perceptions of the court and jury. Thus what may not be critical in one decided case may provide the actus rea in another. Regina v. Slingsby (1995) Crim LR 571 1995 Crwn: The question of deliberation and intent for harm has been argued in a number of cases. In a leading one – Regina v. Slingsby (1995) Crim LR 571 1995 Crwn, Judge J ruled. “It would be contrary to principle to treat as criminal activity which would not otherwise amount to assault merely because in the course of the activity an injury occurred" (Crim 1995 2009). Thus what is critical is not only the presence of actus rea and mens rea, but the fact that the victim was injured or killed due to the negligence and carelessness of the perpetrator. Again, reforms would need to be made in the interpretation of what constituted ABH or GBH, and whether the act was inherently legal or illegal. During sexual activities, there are possibilities of injuries caused to one party, the victim, that may not entirely be, due to design or intent, and Courts need to take these into cognizance while passing the pronouncement, as was seen in “ R v Brown 1994 Lords homosexual sado-masochists engaged in consensual torture raised the defence of consent. The Lords by 3 to 2 denied the defence to them” (W201 the individual and the state study notes on general defences n.d., p.3).This was again reinforced in the R v. Emmett 1999 CA case in which the defendant and female partner indulge in consenting sado-masochistic acts, the courts held that consent is invalid wherein GBH is involved. Why is it termed as unpractical: Coming now to the last part of the study it is believed that OAGA has long outserved its utility. For one thing, some of the major provisions carried in this law has been either scrapped or heavily amended. For another, the modus operandi of crimes has also changed. For instance, the defining line between rape and consensual sex has blurred. A woman could have preferred consensual sex with HIV man and yet later claim that she was raped. The Law Commission has been working on many aspects that could make it more simplified, practical and less tedious for judges to implement. Codification, in essence could work both ways. While it is enforced to lent credibility and ease of enforcement, it could also make room for ambiguity and uncertainty. “The Commission points out that this area of non-fatal offences against the person is in urgent need of reform and cites the archaic language of the Offences Against the Person Act 1861” (Law reform 2010). Conclusions: It is believed that the inherent issues with OAGA 1861 would not so much in the wordings that construed and constructs the rudiments for legal interpretation, but also in terms of how its surviving provisions are interpreted in the current context. While judicial relevance and contextual impact are important, it is also necessary that laws, especially of the criminal nature need to be consistent and as far as possible precedent- based. Again, lawmaking cannot be left in the hands of Courts and jury since it could be robbed of critical application and holistic approach, since it is necessary that lawmakers need to consult the public on how best it could be framed and implemented. Judges are constrained from seeking opinion for law and legal pronouncements, and so this job is best in the hands of Parliament and lawmakers who are in a better position to create and enforce laws. Reference List Assaults and other offences against the person sentencing advisory panel consultation, 2005. [Online] National Aids Trust, pp.1-7. Available at: http://www.tht.org.uk/informationresources/publications/policybriefingpapers/asssaultssetencingadvisorypanel.pdf [Accessed 2 February 2010]. Cameron, E., Barris, S. & Clayton, M., 2008. HIV is a virus, not a crime: Ten reasons against criminal statutes and criminal prosecutions: Journal of the international AIDS society, [Online] Malaria Journal. Available at: http://www.jiasociety.org/content/11/1/7 [Accessed 2 February 2010]. Clarence, V.R., 1888. The British medical journal. [Online] BMJ. Available at: http://www.jstor.org/pss/20217881 [Accessed 2 February 2010]. Crim 1995, 2009. [Online] Swarb.co.UK. Available at: http://www.swarb.co.uk/lisc/Crime19951995.php [Accessed 2 February 2010]. Law reform, 2010. [Online] Law Teacher. Available at: http://www.lawteacher.net/english-legal-system/lecture-notes/law-reform.php [Accessed 2 February 2010]. Lord chief justice of England and wales: Lord Justice Judge and Mr Justice Forbes. 2008. [Online]. Available at: http://www.hmcourts-service.gov.uk/judgmentsfiles/j2493/regina-v-dica.htm [Accessed 2 February 2010]. Offences against the person Act 1861, 2006. [Online] The Circumcision Reference Library. Available at: http://www.cirp.org/library/legal/UKlaw/oap1861/ [Accessed 1 February 2010]. R v Brown [1993] 2 All ER75, 2008. [Online] The Circumcision Reference Library. Available at: http://www.cirp.org/library/legal/UKlaw/rvbrown1993/ [Accessed 2 February 2010]. UK: Politics reform of assault law, 1998. [Online] BBC News. Available at: http://news.bbc.co.uk/2/hi/uk/politics/55513.stm [Accessed 2 February 2010]. Violence: Reforming the offences against the person Act 1861, 1998. [Online] Home Office. Available at: http://www.nationalarchives.gov.uk/ERORecords/HO/421/2/cpd/sou/vroapa.htm [Accessed 2 February 2010]. W201 the individual and the state study notes on general defences, n.d. [Online]. pp.1-10. Available at: http://www.law201.co.uk/56.pdf [Accessed 2 February 2010]. Read More