Redraft of Offences against the Person (OaP) Act�- starting point?

• “It is an offence to hurt someone”

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01/11/2024

Did Moses get it right 3,000 years ago?

• 10 Commandments?
• You shall not take the name of the Lord your God in vain.
• Remember to keep holy the Sabbath day.
• Honor your father and your mother.
• You shall not kill.
• You shall not commit adultery.
• You shall not steal.
• You shall not bear false witness against your neighbour.
• You shall not covet your neighbour’s wife.
• You shall not covet your neighbour’s goods.

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01/11/2024

Keep it simple!

We need more detail

1. Do not threaten to use violence or kill
2. Do not put another in a position of danger
3. Do not withhold access to food, freedom
4. Do not touch another without their consent (sexual offences)
5. Do not use of force without injury/ choking /chloroform
6. Do not cause actual bodily harm/severe pain
7. Do not cause grievous bodily harm
8. Do not cause homicide or abortion
9. Do not commit sexual offences

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• Unless there is consent or medical need or ….

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01/11/2024

Current UK Acts, do we have too much detail in too many places?

1. Offences Against the Person Act 1861,
1. Section 36 defines assaulting a clergyman or other minister in the discharge of his duties shall be liable to be imprisoned for any term not exceeding two years,
2. Section 37 defines assaulting a magistrate…. concerning the preservation of any vessel in distress…shall be liable . . . to be kept in penal servitude for any term not exceeding seven years,
3. Section 38 defines assault on any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, …shall be liable… to be imprisoned for any term not exceeding two years,
4. Section 39 defines assault with intent to obstruct the sale of grain, …. or its free passage shall on be liable to be imprisoned . . . for any term not exceeding three months,
5. Section 40 defines assaults on seamen shall be imprisoned for any term not exceeding three months.
6. Section 42 defines assault and battery on any person with the sentence of six months or a fine of £200;
2. Criminal Justice Act 1988 (Section 39) defines assault and battery with a sentence of a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months,;
3. Criminal Justice Act 1991 (section 90(1)) defines assaults on a prisoner custody officer with a sentence on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both
4. Criminal Justice and Public Order Act 1994 (section 13(1)) defines assaults on a custody officer with a sentence on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months
5. Criminal Justice and Courts Act 2015 (section 13(2)) defines assaults on a secure college custody officer, with a sentence on summary conviction, to a fine not exceeding level 3 on the standard scale;
6. Assaults on Emergency Workers (Offences) Act 2018 (section (1) defines assaults on an Emergency Worker, with a sentence of imprisonment for a term not exceeding 12 months, or to a fine (no limit to the fine is defined), or to both;
7. Criminal Justice Act 1988 (section 40) notes that a summary offence for (c), (d) and (e) above may be included in an indictment, but not (f) above!

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01/11/2024

Is legislation overcomplicating the issues?

• Sexual Offences Act 2003 – does the following define 8 offences (with different sentences) or 1?
• Section 4 Causing a person to engage in sexual activity without consent (6m/10y) has related scenarios defined in
• 8: Causing or inciting a child under 13 to engage in sexual activity (6m/14y)
• 10: Causing or inciting a child to engage in sexual activity (6m/14y)
• 17: Abuse of position of trust: causing or inciting a child to engage in sexual activity (6m/5y)
• 26: Inciting a child family member to engage in sexual activity (6m/14y)
• 31: Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (6m/14y)
• 35: Causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception (6m/14y) and
• 39: Care workers: causing or inciting sexual activity (6m/10y)
• The whole Act must be read to be sure one has found all relevant scenarios (e.g. is a child involved, is a carer involved, does a person have a mental disorder, are the persons related).
• Wouldn’t it be simpler if there was one offence: “Causing a person to engage in sexual activity without consent”,
• But with scenarios within that offence that affect the scale of the sentence

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01/11/2024

An approach to simplifying the Offences Against the Person Act, 1861

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01/11/2024

Judicial process

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01/11/2024

Determine the severity of the offence

Determine the sentence

Characteristics of the offence

The offence

The factors that need to be considered

• One cause of complex legislation is the need to define a number of factors that affect the severity of an offence and, related to this, the associated sentencing
• The following slides identify the key factors involved and give examples of how these factors have affected the way the OaP, 1861 Act was created

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01/11/2024

The 10 key factors related to an offence

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01/11/2024

Involvement

Process

Mens Rea

Scale

Intent

Exceptions

Hostility

Nationality

Age/Gender

Location

The offence

May be specific to the offence

May be specific to the offence

Clarify the offences

Clarify the offences

Clarify the offences

Clarify the offences

Seriousness affects sentence

OaP 1861 – assigning sections to the offence

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01/11/2024

24 Poison

28 Explosion

29 Explosion and acid attack

31 Setting spring guns

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30 Placing gunpowder

32 Placing wood on a railway

33 Casting stone on a railway

34 Endangering railway passengers

35 Furious driving

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36 Clergyman

37 Magistrate

38 Peace officers

40 Seamen

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Involvement

Process

Mens Rea

Scale

Exceptions

Intent

Hostility

Nationality

Age/Gender

Location

The offence

There may be many exceptions to an offence e.g.

• Lawful harm (how do we determine when they are not lawful; registration required, insurance for consequences required?) e.g.
• Procedure performed by a formally qualified Dr, Dentist, nurse, etc when performing their role, provided it is done with good intent
• Trained, registered tattooists, body piercing
• A sport operating under authorised rules (e.g. rugby, boxing) (How authorised?)
• Cosmetic surgery
• Donating a kidney, bone marrow or blood
• Military services in action, provided…?
• Police in action, provided…?
• Self defence
• Defence of others
• Consent of the person affected by any harm, except when the person affected
• Is less than 18
• dies as a result of the harm
• is disabled as a result of the harm
• benefits from state aid as a result of the harm
• Has undertaken and completed a registered/approved course of training to understand the impact of the harm requested.

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01/11/2024

While exceptions must be defined, how do we minimise adding complexity?

Possible processes of causing harm to a person

• Direct
• Mental
• Sexual
• Hitting, with or without an object
• Shooting (OaP 18)
• Knifing
• Poisoning (OaP 24)
• Administering drugs (e.g. Chloroform, (OaP 22) etc) (OaP 58, 59)
• Throwing acid (OaP 29)
• Strangling, choking, suffocating (OaP 21)
• Gunpowder (OaP 28, 29, 30)
• Driving recklessly or with intent (OaP, 35)
• Abandon, expose to danger (OaP 27)
• Indirect
• Starving(OaP 26)
• Poisoning (OaP 23, 24)
• Putting an object in their path in order to cause injury by falling, causing a vehicle to crash (OaP 32, 33)
• Setting a process of events and actions that lead to the offence, possibly without direct involvement of the offender (OaP 31)
• Misleading, misdirection (OaP 56)
• Negligent/Omission (OaP 17, 26, 34) (1998 Bill: 1(2) )

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01/11/2024

Involvement

• Perpetrator
• Directly assisting
• Indirectly assisting (e.g. supply or procuring poison, instruments, making gunpowder) (OaP 59, 64)
• Paying for crime/instigator
• Conspiring, soliciting (OaP 4)
• Inchoate - offence relating to a criminal act which has not, or not yet, been committed

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01/11/2024

Seriousness of offence - scale of injury/harm

• One person
• A child (OaP 56)
• A magistrate (OaP 37)
• A clergyman (OaP 36)
• An emergency worker (OaP 38, Sentencing Act 2020, Assaults on Emergency Workers (Offences) Act 2018)
• A seaman (OaP, 40)
• Many people affected (terrorism)

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• The Sentencing Act, 2020 (Section 67) gives guidelines covering the Involvement of Emergency Workers and (Section 69) Terrorist connections

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01/11/2024

Intent (may be greater than result!)

• If no harm/injury results, the intent is still an offence E.g. OaP 18,30, 31, 32, 33)
• If the intent is greater than the injury, the sentence may reflect the intended injury
• Reckless
• To endanger (OaP 32, 33, 34)
• To commit another indictable offence (e.g. Abortion OaP 58 plus 21, 22, 38)
• To assist any other person in committing any indictable offence (OaP, 21, 22)
• To resist the lawful arrest or detention of himself or a third person (OaP 18)
• To injure more than achieved
• To obstruct sale of grain or its free passage (OaP, 39) ??
• Was the victim known to the offender? (Might harm a victim not have been anticipated or intended? Is an offence worse if the victim is not known?)
• Was victim known to be pregnant? (Might harm to an unborn child not have been anticipated or intended?)
• Was the characteristics of the weapon/device inflicting harm known? (Might harm a victim not have been anticipated or intended?)
• Or was the intent to defend oneself or another?

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01/11/2024

Hostility related to

• Race
• Religion
• Disability
• Sexual orientation
• Transgender identity

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• The Sentencing Act, 2020 (Section 66) gives guidelines covering Hostility
• (Section 67) Involvement of Emergency Workers
• (Section 69) Terrorist connection

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01/11/2024

Location

• Victim (OaP 9, 10)
• Within England and Wales
• Within the UK
• Within the UK territories
• Within jurisdiction of the Admiralty (OaP 68)
• Abroad
• (UK citizen, or not) (OaP 4)
• Offender (OaP 9, 10)
• Within England and Wales
• Within the UK
• Within the UK territories
• Abroad (OaP 4)
• (UK citizen, or not) (OaP 4)

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01/11/2024

Nationality

• Victim
• UK citizen or not? any person dieing, may be dealt with, inquired of, tried, determined, and punished . . . in England or Ireland . . . (OaP, 10)
• Offender
• UK citizen may be dealt with, inquired of, tried, determined, and punished . . . in England or Ireland (OaP, 9)

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01/11/2024

Age and Gender

• Victim
• Foetus (OaP 58), Child (OaP 56), Youth or Adult?
• Male or not?
• Offender
• Child, Youth or Adult?
• Male or not?

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01/11/2024

Mens Rea

• Offender
• Intent?
• Foreseeability?
• Recklessness?
• State of mind?
• Drunk?
• Mental capacity?
• Victim
• Consenting?

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01/11/2024

The Sentencing Act, 2020 also gives guidelines on:

• (Section 63) the offender's culpability in committing the offence, and the harm which the offence caused, was intended to cause, or might foreseeably have caused.
• (Section 66) Hostility
• (Section 67) Involvement of Emergency Workers
• (Section 69) Terrorist connection

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01/11/2024

Principles for reducing complexity

• The previous slides have given examples of the various factors that can lead to complex legislation.
• The following principles aim to minimise the impact of these factors on legislation:
• Do not create a different offence for different scenarios in which an offence occurs
• Some scenarios are common across many offences so describe those scenarios once only
• Use definitions and Schedules to simplify legislation by describing scenarios, key terms etc in a separate place to the definition of an offence
• Separate the definition of an offence from the specification of associated sentences (whereas an offence can be simple to describe, the sentence often must consider several factors and scenarios)
• Also
• Remove procedural issues for police, judicial system from definition of offences – this information is not required by people who wish to understand an offence

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01/11/2024

Define offences related to a scale of injury/harm

1. Threat to use violence
2. Threat to kill (OaP, 16)
3. Put in position of danger (OaP, 27)
4. Withholding access to food (OaP, 26), freedom (e.g. kidnapping (OaP 56), escape from shipwreck (OaP, 17))
5. Use of force without injury/ choking /chloroform with intent to commit indicatable offence (OaP 21, 22, 36, 37, 38, 39)
6. Abortion (OaP 58, 59)
7. Actual Bodily Harm/Severe Pain (OaP 20, 24, 28, 29, 30, 31, 32, 33, 34, 35, 40, 42, 47)
8. Grievous Bodily Harm (OaP 18, 20, 23)
9. Homicide (OaP 5, 9; Homicide Act)

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• Note: The Sentencing Act, 2020 (Section 63) gives guidelines covering the harm which the offence caused, was intended to cause, or might foreseeably have caused.

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01/11/2024

Background for improving Offences against the Person, 1861

• Currently: 79 numbered sections/clauses, of which 36 (47%) have been removed by subsequent legislation
• Know issues (from Law Commission)
• the offences are not clearly classified in order of seriousness
• some offences relate to narrowly specialised situations, or include complex lists of situations, rather than setting out a clear principle
• the mental element of some offences is not clearly expressed, and does not reflect the external elements of those offences
• the language is often archaic and obscure
• there are references to obsolete legal concepts and procedures, which are only resolved by interpretation provisions in other statutes.
• And
• Sentences are not consistent

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01/11/2024

Strategy for improving Offences against the Person, 1861

• Therefore….
• A complete rewrite is recommended
• A strategic vision of what the Act could/should cover is needed
• Don’t try and create the perfect Act – it will take too long to prepare and get approved
• A first step should be to simply replace the current 1861 Act

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01/11/2024

Strategic Vision for Offences against the Person Act

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1 Killing a person

2 Endangering life or inflicting bodily harm (inc. Torture, Female Genital Mutilation)

3 Sexual Offences

4 Make incapable of resistance in order to commit an offence

5 Common assault and battery

6 Resistance or obstruction

7 Threats

8 Abuse

9 Torment (inc. Harassment, Stalking)

10. Concealing the death of a person.
11. Abduction, kidnap or wrongful imprisonment
12. Slavery, servitude and forced or compulsory labour

13 Bigamy

14 Making or having substance, tools, &c., with intent to commit an offence

15 Causing, arranging or facilitating commission of an offence

Topics in red are new

Redraft of Offences against the person Act

• Consolidate offences against the person from many current Acts into the new Act (incomplete list)
1. Offences against the person Act, 1861
2. Homicide Act, 1957
3. Infant Life (Preservation) Act, 1929
4. Infanticide Act, 1938
5. Child Abduction Act, 1984
6. Abortion Act, 1967
7. Domestic Violence, Crime and Victims Act, 2004
8. Female, Genital Mutilation Act, 2003
9. Sexual Offences Act 1956 , 2003
10. Offensive Weapons Act, 2019
11. Prevention of Crimes Act, 1953 (threatening with offensive weapon)
12. Defamation Act, 1952, 1996, 2013
13. Criminal Libel Act, 1819, Libel Act 1843, 1845
14. Newspaper Libel and Registration Act, 1881
15. Law of Libel Amendment Act, 1888
16. Modern Slavery Act, 2014
17. Protection from Harassment Act, 1997
18. Assaults on Emergency Workers (offences) Act, 2018
19. Criminal Justice Act 1991 (Protection of prisoner custody officers/assault)
20. Criminal Justice Act 1988 (Common assault and battery, and Torture)

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01/11/2024

How does one consolidate the OaP Acts?

• Is it appropriate to
• Have lots of independent Acts?
• What is the best way to consolidate?
• Have all the information related to Prison Custody Officers (or children, or….) in one place?
• Have all the information related to OaP in one place?
• What are the risks associated with not consolidating?
• Inconsistent drafting of offences
• Inconsistent definition of sentences

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01/11/2024

Redraft of Offences against the Person Act

• Aim is to consolidate all OaP related information
• Proposal is to
• include murder (it’s usually defined by Acts in other countries, but not currently in the UK)
• create a criminal code as found in Australia, New Zealand, USA, Canada,…
• correct inconsistencies
• separate sentencing from the offences
• The proposed Bill is currently 54 pages
• Specification of offences covers (only) 9 pages
• Sentencing covers 11 pages (often caveats etc relate to sentences)
• Definitions cover 5 pages
• Schedules cover 29 pages

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Redraft of Offences against the person Act

1 Overview

2 Killing a person

3 Endangering life or inflicting serious injury (including Torture, Female Genital Mutilation)

4 Sexual Offences

5 Make incapable of resistance in order to commit an offence

6 Common assault and battery

7 Resistance or obstruction

8 Threats

9 Abuse

10 Torment (including Harassment. Stalking, Hate)

11 Concealing the death of a person.

12 Abduction, kidnap or wrongful imprisonment (including Child Abduction, Kidnap, Wrongful imprisonment)

13 Slavery, servitude and forced or compulsory labour

14 Bigamy.

15 Making or having substance, tools, &c., with intent to commit an offence

16 Causing, arranging or facilitating commission of an offence

17 Civil remedy.

18 General interpretation

19 Short title, commencement and extent.

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01/11/2024

6 pages replace 40 pages from Sexual offences Act 2003

Libel, Defamation to be added

4 pages for direct replacement of 20 page, 1861 Act

Redraft of Offences against the person Act, 1861

• How has a significant reduction in page count been achieved?
• Definitions moved to a glossary (with hyperlinks to them, and screen tips)
• Sentences moved to a Schedule (as seen in Criminal justice and Public Order Act 1994, Schedule 8)
• Complex definitions and scenarios moved to schedules
• Focusing on the purpose/principle of the legislation and separating this from the caveats and scenarios
• Improving the structure

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End

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