Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
We published a scoping report containing our final recommendations to Government on 3 November 2015, following a scoping consultation which ran from autumn 2014 to spring 2015.
This is a scoping project forming part of our Eleventh Programme of law reform.
The Offences Against the Person Act 1861 is widely recognised as being outdated. It uses archaic language and follows a Victorian legislative approach of listing separate offences for individual factual scenarios, many of which are no longer necessary (for example, the offence under section 17 of impeding a person endeavouring to save himself from a shipwreck). The structure of the Act is also unsatisfactory; there is no clear hierarchy of offences and the differences between the three most commonly prosecuted offences (under sections 18, 20 and 47) are not clearly spelt out – for example, section 20 (maliciously wounding or inflicting grievous bodily harm) is seen as more serious than section 47 (assault occasioning actual bodily harm) but the maximum penalty (five years) is the same.
The 1861 Act has been in force for over 150 years. It has been frequently amended. Despite a long history of criticism of many aspects of the Act and repeated efforts at reform, it remains in heavy use: the offences in the 1861 Act form the basis of over 26,000 prosecutions every year. Frequent changes to the law have left it in an incoherent and confusing state, with more provisions repealed than currently in force.
In the scoping consultation paper, we examined the current law, analysed the problems with it and tentatively suggested some options for future reform. We proposed utilising the Home Office’s 1998 draft Bill with some amendments to reflect both the need for increased efficiency in the Criminal Justice System, and legal developments in the years since it was drafted, particularly in the field of disease transmission.
On consultation, there was broad agreement that reform of the law was necessary, with Lord Chief Justice of England and Wales, the Rt Hon the Lord Thomas of Cwmgiedd, saying that:
“I recognise the problems identified in the paper in relation to the 1861 Offences Against the Person Act. The legislation is out of date and in some areas obsolete; new ways of offending are not adequately captured.”
His Honour Judge Andrew Goymer, for the Council of HM Circuit Judges, said:
“Judges and juries have frequently to grapple with the problems of the current law contained in a statute that is now 154 years old.”
John Atherton, of the National Bench Chairmen’s Forum, said:
“Having started by trying to read and understand the 1861 Act, I was struck by the outdated use of words and phrases. Reading it was akin to plaiting fog.”
Consultees also firmly agreed that we ought to use the Home Office’s 1998 draft Bill as a basis for reform, with certain modifications. The Lord Chief Justice said:
“I think it is sensible that you have based your discussion on the 1998 proposals for a draft Bill, and believe that this is a good model and a firm foundation on which to take forward long overdue reform in this area.”
As a result of this highly positive response to our provisional proposals on consultation, the Law Commission recommends the adoption of a modified version of the Home Office’s 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.
The Home Office’s 1998 draft Bill includes a logical hierarchy of offences of violence in plain English, which would be a great improvement on the present law. However, it also replicates one of the defects of the present law: there is a huge gap between the lowest level offence (currently common assault; maximum 6 months) and the next one up (currently assault occasioning actual bodily harm or ABH; maximum 5 years). A lot of offences against the person in practice involve relatively low levels of injury being caused. In such cases, prosecutors have a choice:
- Option 1) Charging the lowest level offence, which guarantees fast and cheap trial in a magistrates’ court but wouldn’t appropriately label the offender as someone who has caused actual injury.
- Option 2) Charging an offence which reflects the harm caused, but risks Crown Court trial. This is considerably more expensive, and unnecessary in the less serious cases we are considering, since the ultimate sentence passed is within the powers of magistrates.
To get around this problem, the Law Commission recommends adding in a new summary-only offence of aggravated assault. This would be triable only in a magistrates’ court, and carry a maximum sentence of 12 months. The new offence would appropriately label those who do more than mere assault, since they cause injury, but who don’t deserve a sentence of more than 12 months. Given that currently 73.5% of ABH cases tried in the Crown Court result in a sentence of 12 months or under where there is a conviction, enormous cost savings could also result.
Both in the scoping consultation paper and in this report, we have considered the criminalisation of disease transmission at great length. Many consultees supported fundamental reform of the law in this area. However, we conclude that the issues were more complex than time or space allowed without delaying the main aim of reforming the law of offences against the person. For this reason, we suggest modifications to the draft Bill to preserve the present position pending a wider review involving more input from healthcare professionals and bodies.
One way in which the 1998 draft Bill changes the law from the 1861 Act, rather than just simplifying and reforming it, is by expanding the offence of threats to kill to also include threats to cause serious injury. We go beyond this and recommend that it also ought to include threats to rape. All three would be punishable by up to 10 years in prison.
Of course, in a reform project where we are recommending the repeal of 25 offences to be replaced with 15 new ones there are many more minor changes to things like maximum sentence and definitions. To assist readers with understanding these changes, we have produced a table showing all of the existing offences, and their proposed replacements. This is published in the report, in the summary, and as a separate document at the bottom of this page.
In this video, Professor David Ormerod QC, Law Commissioner for criminal law, sets out the case for reform.
Area of law
Professor David Ormerod QC