Essay: Offences Against The Person Act 1861 Explores Fatal And Non-Fatal Offences.

Fatal Offences Against the Person: Murder and Manslaughter

‘Offences against the person’ refers to fatal or non-fatal offences that are committed through the application of force against another individual. Under UK law, these are governed by the Offences against the Person Act 1861. Under UK law, the punishable offences can broadly be classified under the categories of homicide, actions that can cause bodily harm or danger to the life of another individual, bigamy, child stealing, assaults, concealment of the birth of a child, attempts to procure abortion, and the making of gunpowder for the purpose of committing offences.

Fatal offences against the person constitute homicide. Homicide can further be classified either as murder or manslaughter under UK law. An individual is said to have committed murder if they are of sound mind, unlawfully kill another individual, during the time of the ‘Queen’s peace’, and while also having an intention to kill or cause grievous bodily harm to that individual. Unlawful killing implies that the killing cannot be justified and should not be for the purpose of self-defense. Manslaughter occurs either when an individual had the intention to commit murder, but partial defenses were applicable in the situation, the risk of death arose as a result of the grossly negligent conduct of the individual, or an unlawful act that resulted in death. Partial defences against murder comprise of diminished responsibility, a loss of control, or a suicide pact. Manslaughter does not involve the mala fide of causing the death of the other individual involved in the crime of murder. An individual may be given a life sentence for committing a murder, but would be given a much shorter sentence in the case of manslaughter depending on the circumstances of the crime. In the case of murder, the severity of the sentence depends upon whether the murder was of first degree or second degree. In the case of manslaughter, this severity is determined by the voluntary or involuntary nature of the manslaughter.

Non-fatal offences include actions that cause bodily harm or danger to the life of another individual. Grievous bodily harm (GBH) can either be the unlawful wounding of another individual, or grievous bodily harm with the intention to cause such harm. This also includes the unlawful administration of poison or causing of bodily injuries/ harm to servants. While section 20 of the Act does not constitute the need for intent when intention is present the offence of GBG is covered under section 18. While the actus reus remains the same, the mens rea determines the extent of the sentencing. Any form of mental trauma causing a serious psychological condition is also included within the meaning of the crime. This would also be inclusive of injuries that were sustained by the victim in an attempt to flee from the defendant’s actions. This is an indirect impact of the defendant’s actions and is also considered to be covered by the definition of GBH. The injuries or wounding caused by such actions have a serious impact on the victim’s ability to undertake daily activities. The injuries can be irreversible or life-threatening in nature. GBH is considered to be legal when it is undertaken for the purpose of self-defense, defence of another individual, for the purpose of protecting property, when the consent of the victim was present, and for the purpose of preventing a crime.

Non-Fatal Offences: Grievous Bodily Harm (GBH), Assault, Bigamy, Child Stealing and Concealment of the Birth of a Child, Attempts to Procure Abortion

Assault is a form of crime against the person that causes another individual to apprehend the danger of immediate unlawful violence. It is also inclusive of actual bodily harm. The harm caused through such an action may not be as serious as injuries caused due to grievous bodily harm. Assault comprises of any action, wherein, the defendant intends to use violence against another individual. The term ‘assault’ is inclusive of battery and the individual and the defendant can be charged with ‘assault by beating’ in case of the occurrence of battery. In certain circumstances, there may not be any actual violence, but the defendant may still be convicted of assault, such as spitting on the victim. This generates fear within the victim of unlawful physical contact. If the harm caused is serious, but cannot be constituted as grievous bodily harm, the defendant will be charged with the crime of actual bodily harm. Section 39 is applicable when the injuries amount to minor bruising, abrasions or scratches. Thus, the level of charges for assault is indicated by the kind of injuries that are sustained by the victim.

Another offense against the person is that of ‘bigamy’ which is punishable by imprisonment up to 7 years. An individual who enters into a new marriage without the legal end of their first marriage will be charged with the crime of bigamy. In such cases, the first marriage is recognized as a valid marriage. Without the finalization of one’s divorce, the individual is considered to be legally married to that spouse and cannot enter into a second marriage. The practice of polygamy is common in a number of nations and such individuals would not be convicted for the crime of bigamy unless they enter into marriage within the UK. Another exception to the crime is when the individual has not heard from the spouse for a period of seven years. In the case of R. v. Naguib (1917), the defendant who was an Egyptian domicile was convicted of bigamy as his first marriage was with an Egyptian woman, while the second marriage was an English marriage.

Child stealing or abduction is considered to be unlawful and is governed by both, Offences Against the Person Act 1861 as well as Child Abduction Act 1984. This involves taking away a child under the age of fourteen through fraud with the intention to deprive the legal caretaker of the child. In England and Wales, the crime is governed by the Child Abduction Act 1984 and the age of the child being abducted is under sixteen. While section 1 governs the abduction of the child by a parent, section 2 governs the stealing of the child by other persons. In the scenario, wherein, ‘consent’ has been provided by the parent or legal guardian to take the child from the UK for a specific period of time, the child cannot be said to have been stolen or abducted unless the agreed-upon period expires. The maximum penalty applicable for such a crime is seven years. One would be convicted of the crime of kidnapping a child, if there was a lack of consent from the child. In the territory of Scotland, the offence of child abduction may also be recorded as the common law offence of abduction. In several cases, the abduction would be considered a serious crime if the abductor had sexual motives and combined the child stealing with other crimes, such as assault.

‘Concealment of a birth of a child’ creates a charge of a misdemeanor if any person secretly disposes of the dead body of a newborn, irrespective of whether the death occurred before or after the birth. The term ‘with or without hard labor’ was repealed from the section through the Criminal Justice Act 1948. The court can sentence imprisonment for such an individual for a period of up to two years. This implies that lawfully informing about the stillbirth of a child is necessary. The offence was traditionally used for the purpose of prosecuting those women that were suspected of having engaged in the practice of infanticide. The dead body of the child is hidden in the case for the purpose of concealing the birth of such a child. However, historically, the framework was used to prosecute such women who gave birth to a child outside of marriage. The historical social conventions that created the law were also confirmed in R v Levkovic. The historical purpose was to punish those women who gave birth to illegitimate children or bastards. Though traditionally, the statute aimed to create an offence for mothers solely for concealing the birth of a dead child, the statute was modified to include both male and female offenders that tried to conceal the birth of such a child.

‘Attempts to procure abortion’ is prohibited under section 58 of the Act. The usage of drugs or any other instruments for the purpose of causing a miscarriage unlawfully creates such an offence and the woman can be punished with a sentence for a term not less than three years or with penal servitude for life. ‘Unlawfully’ implies that the performance of an abortion is permitted under certain situations. It may be permitted if giving birth would create a risk to the life of the pregnant woman, if a risk is present to the physical or mental health of the pregnant woman or any other children of her family, if a ‘substantial risk’ is present wherein the child’s birth would cause such physical or mental abnormalities that would cause the woman to become seriously handicapped, or if the abortion has been performed for the purpose of preventing any form of grave permanent injury to the woman. Without the presence of such circumstances or reasons, the administration of abortion would be considered unlawful and would be punishable under section 58 of the Offences against the Person Act 1861.

Sexual offences against the person are also a form of non-fatal offence that are prohibited under law. Sexual offences against a woman, namely, abduction, rape ,or defilement of a woman are also considered to be a crime under the Sexual Offences Act 2003. Such crimes were originally punishable under the Offences against the Person Act 1861 from sections 48-55. For the offence of rape to have occurred, a lack of consent is considered to be a significant element. Consent obtained while the victim is intoxicated does not equate to consent and the defendant can be punished with the offence of rape in such a case.

An individual can be convicted of a ‘misdemeanor’ if they engage in the making of gunpowder or any other explosive substances for the purpose of committing any of the felonies provided within the Offences against the Person Act 1861. The legal manufacture of gun powder and similar explosive substances is permitted under Explosives Act 1875. Factories that lawfully exist and are licensed under the Explosives Act 1875 are permitted to manufacture gunpowder.

Thus, a number of offences against the person exist, broadly within the heads of fatal, non-fatal, or sexual offences. While these were originally governed by the Offences against the Person Act 1861, a number of sections have been repealed by new legislation aimed at governing such offences.

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Emma Milne, ‘Concealment of birth: time to repeal a 200-year-old “convenient stop-gap”?’ (2019) 27(2) Feminist Legal Studies 139

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