The Offences Against the Person Act 1861
(24 & 25 Vict. c.100) is an Act
of the Parliament
of the United Kingdom of Great Britain and Ireland
. It consolidated provisions related to "offences against the person
" (an expression which, in particular, includes offences of violence) from a number of earlier statutes
into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It was one of a number of criminal consolidation Acts passed in 1861 with the object of simplifying the law.
Although it has been substantially amended, it continues to be the foundation for prosecuting personal injury, short of murder, in the courts of England and Wales. Different subsets of its provisions remain in force in Northern Ireland and in the Republic of Ireland.
The Act as originally drafted listed specific methods whereby harm might be caused. For example, the offence under section 18 was originally restricted to causing grievous bodily harm by shooting, but has since been amended to cover causing such harm by any means.
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, sections 28 to 30 and 64 specifically address the problem of the resulting injuries. Similarly, children were throwing stones at passing railway trains.
The majority of the original provisions contained in the Act have now been replaced.
Schedule of offences
Sections 1-3 dealt with the death penalty for murder.
- Section 1: repealed.
- Section 2: repealed.
- Section 3: repealed.
- Section 4: Soliciting murder. This section formerly used to include conspiracy to murder, but conspiracy is now codified by Part I of the Criminal Law Act 1977.
- Section 5: Sets the maximum sentence for manslaughter as life imprisonment. See also the Criminal Justice Act 2003 for further provisions about sentencing for manslaughter and for offences under sections 4 and 16 to 47 of this Act.
- Sections 9 and 10: Murder or manslaughter abroad. Section 9 gives the courts in England, Wales and Ireland extra-territorial jurisdiction over homicides committed by British subjects overseas. (Note however the restricted definition of "subject" under section 3 of the British Nationality Act 1948.) Section 10 gives these courts jurisdiction over fatal acts committed by British subjects overseas where the death occurs in England, Wales or Ireland, and jurisdiction over fatal acts committed by anybody where the death occurs abroad. (However the wrod "criminally" in that section has been held to exclude fatal acts done by aliens overseas although the death occurs in the England, Wales or Ireland, since such acts are not punishable under the criminal law.)
- "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 England or Ireland; Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Irelandin the same manner as such person might have been tried before the passing of this Act."
- "10. 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."
- Section 16: Threats to kill, whether premeditated or said in anger, remains an offence where the defendant intends the victim to fear it will be carried out. (Section 4 of the Public Order Act 1986 deals with other threats of violence). Although the normal maximum sentence is ten years, offenders deemed to present a "significant risk" of "serious harm" to the public can now receive a life sentence under the Criminal Justice Act 2003.
- Section 17: Impeding a person endeavouring to save himself or another from shipwreck. Shipping was the lifeblood of the Empire and so specific offences to protect seamen were common. It is still in force.
- Section 18: Wounding or causing "grievous bodily harm," with intent to cause grievous bodily harm, or to resist arrest. ("Grievous bodily harm" can in fact include psychological harm.) It is punishable with life imprisonment.
- "18. 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 ..."
- Section 20: Inflicting bodily injury, with or without weapon. This is much less serious than an offence contrary to section 18, carrying a maximum prison sentence of 5 years.
- 20. 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 ....
- Sections 21 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 (see Sexual Offences Act 2003).
- Sections 23 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.
- Section 26 deals with the problem of neglect by an employer who failed to provide adequate food, clothing and accommodation for staff and servants. Still in force, it is punishable with five years' imprisonment.
- Section 27 creates an offence for those who abandon babies. Although still in force it is in practice obsolete, as it has been superseded by the offence of cruelty to persons under sixteen under section 1 of the Children and Young Persons Act 1933. The exception to this is that it can be committed by a person who does not have responsibility for the child within the meaning of the 1933 Act.
- Sections 28, 29, 30, 64 and 65 created a range of criminal offences supplementing the Explosive Substances Act 1883 and the Explosives Act 1875. These remain in force, although the Criminal Damage Act 1971 covers all aspects of the resulting damage to property and the Terrorism Act 2000 deals with possession for terrorist purposes.
- Section 31 addresses the problem of those who wish to protect their property with hidden traps.
- Sections 32 to 34 protect the railways from those who place obstructions on the line, throw stones at the passing trains, and generally endanger the passengers.
- Section 35: The offence of "wanton and furious driving." In practice this has largely been superseded by the offence of dangerous driving under the Road Traffic Act 1988.
- Section 36: Specific protection for clergymen carrying out their public duties.
- Section 37: Assault on any person authorized to preserve any shipwrecked vessel or goods. Penalty is seven years.
- Section 38: Assault with intent to resist arrest. (There is also a lesser offence of assault on a constable in the execution of his/her duty under section 89(1) of the Police Act 1996.)
- Section 39 (repealed): The trade in grain and other staples no longer requires specific protection.
- Section 40 (repealed): It is no longer considered necessary to have a specific offence to protect seamen while carrying out their duties.
- Section 42 (repealed): Common assault is now in section 39 of the Criminal Justice Act 1988.
- Section 43 (repealed): Was the aggravated form of assault on children and women.
- Section 47: 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 ..."
- Section 48 (repealed): Rape: now in section 1 of the Sexual Offences Act 2003.
- Section 52 (repealed): Indecent assault upon a female: now various offences under the Sexual Offences Act 2003.
- Section 53 (repealed): Forcible abduction of any woman with intent to marry or carnally know her. This would be charged as the common law offences of kidnapping and false imprisonment, or rape, and/or human trafficking under the Sexual Offences Act 2003.
- Section 55 (repealed): Abduction of a girl under sixteen years of age.
- Section 56 (repealed): Child abduction.
- Section 57: 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."
The section reproduced section 22 of the Offences Against the Person Act 1828 (9 Geo.4 c.31) with minor ammendments.
- "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."
- Section 59 prohibits supplying or procuring poison or instruments for the purpose of criminal abortion.
- Section 60: 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..."