Chapter 4: Analysis of the draft bill
Date: Fri May 01 14:43:56 BST 1998
New offences against the person
Clause 1 - offence of intentional serious injury (clause 2 of LC218)
This offence, as recommended by the Law Commission, replaces the first limb of section 18 of the 1861 Offences Against the Person Act: causing grievous bodily harm with intent and wounding with intent to inflict grievous bodily harm. The maximum penalty remains life imprisonment. The new offence also extends to omissions where a person omits to do an act which he has a duty to do at common law eg a vehicle maintenance engineer who deliberately omits to mend faulty brakes on a vehicle, intending serious injury to result.
Clause 2 - offence of reckless serious injury (clause 3 of LC218)
Clause 2 replaces section 20 of the 1861 Act (wounding or inflicting grievous bodily harm) with a slightly more serious offence. At present, one need only prove that the defendant foresaw that harm, albeit of a minor character, would result from his actions, whereas the new offence requires foresight of a risk that serious injury would result. Also, under the new offence serious injury must result, whereas under section 20 mere wounding is necessary. The offence carries a maximum penalty of seven years’ imprisonment, compared with 5 years at present, to reflect the seriousness of the new offence. Other than the increase in the maximum penalty, the offence is as recommended by the Law Commission.
Clause 3 - offence of intentional or reckless injury (clause 4 of LC218)
This clause replaces section 47 of the 1861 Act (assault occasioning actual bodily harm). Like the offence at clause 2, the new offence is more serious in that it requires intent to commit injury or foresight of a risk that injury would result. Two changes have been made to the Law Commission’s original provision: clause 3(2) has been added to enable prosecutions in cases where injury occurs outside England and Wales but the act took place in this country; and the maximum penalty has been raised from the Law Commission’s proposed three years to five years imprisonment.
Clause 4 - offence of assault (clause 6 of LC218)
This replaces the existing common law offences of common assault and battery, and carries a maximum penalty of 6 months imprisonment as at present. The formulation is based on the present state of the law. The offence may be used as an alternative for those charged with other offences. One change which has been made to the Law Commission’s original provision is that pending the outcome of their study of Consent in the Criminal Law, the offence does not refer to consent.
Offences Against the Police and others who carry out lawful arrests
Clause 5 - offence of assault on a constable (clause 7 of LC218)
This provision, which replicates section 89(1) of the Police Act 1996 and carries the same maximum penalty of 6 months imprisonment, is included for purposes of completeness. The Law Commission’s original provision has been revised to reflect the 1996 Act.
Clause 6 - offence of causing serious injury to resist arrest (new clause)
No specific offence of serious injury to resist arrest, to replace the second limb of section 18 of the 1861 Act, was included in LC218, and cases would have simply have been prosecuted under clause 1 or 2. This clause has been inserted in recognition that by the nature of their task, special provision for the police and others who carry out lawful arrests is justified and should be retained. As at present, the offence carries a maximum penalty of life imprisonment.
Clause 7 - offence of assault to resist arrest (clause 8 of LC218)
This clause, which reflects the Law Commission’s original proposal, replaces section 38 of the 1861 Act (assault with intent to resist arrest) and carries the same maximum penalty of 2 years imprisonment. Clause 7(2), which reflects the current state of the law, sets out a subjective test (circumstances as the defendant believed them to be) in establishing mens rea.
Other offences
Clause 8 - dangerous substances: intending or risking serious injury (new clause)
This provision replaces and broadens section 29 of the 1861 Act (causing explosion, or sending explosive substance, or throwing corrosive fluid) to cover those who use dangerous substances with intent (or recklessly) to cause serious injury, whether or not such injury is caused. The Law Commission recommended that this section be retained within the 1861 Act and modernised, but did not make detailed proposals. Having reviewed its purpose and utility we take the view that such a reformulated offence should be set out on the face of the Bill. The maximum penalty remains life imprisonment
Clause 9 - dangerous substances: intending or risking injury ( new clause)
This provision replaces and broadens section 30 of the 1861 Act (placing gunpowder near a building with intent to do bodily injury) in much the same way as clause 8 replaces section 29. This clause is however broader than its 1861 Act equivalent because it has been constructed to mirror clause 8 so that it can be used when the outcome of the criminal behaviour is to cause injury rather than serious injury, on the same model as the Law Commission adopted in the substantive offences set out in clauses 1, 2 and 3 of the Bill. As at present, the maximum penalty remains 14 years imprisonment.
Clause 10 - threats to kill or cause serious injury (clause 9 of LC218)
As recommended in LC218, this provision replaces section 16 of the 1861 Act (threats to kill) and also extends the law to cover threats to cause serious injury and threats against third parties. Like the present offence, the maximum penalty is 10 years imprisonment.
Clause 11 - administering a substance capable of causing injury (clause 5 of LC218)
Clause 11 replaces the offences of administering poison under sections 23 and 24 of the 1861 Act. The proposed maximum penalty of 5 years imprisonment is less than the existing section 23 offence but in line with the penalty for intentional or reckless injury under clause 3. Acts causing serious injury might be prosecuted under clauses 2 or 3. The Law Commission’s original provision has been amended to remove the element of consent, pending the outcome of the Law Commission’s separate study of Consent in the Criminal Law. It has also been reformulated to meet concerns that the offence should not be so widely defined as to risk catching bona fide medical treatment.
Clause 12 - torture (clause 10 of LC218)
This provision, which is a revised restatement of section 134 of the Criminal Justice Act 1988 has been aligned more closely with section 134 of the 1988 Act than the original LC218 provision, and is included in the Bill for purposes of completeness.
Clause 13 - causing danger on railways (new clause)
Clause 13 updates section 34 of the 1861 Act (endangering safety of persons on a railway), and carries the same maximum penalty of 2 years imprisonment. Like the section 34 offence, the offence also applies to omissions. In LC218, this offence was simply updated in the 1861 Act. The Government considers that it should be included on the face of the Bill.
Remaining Clauses
Clause 14 - definition of fault terms: intent and recklessness (clause 1 of LC218)
This clause defines intentional and reckless acts and omissions for the purposes of the Bill. The definition of recklessness requires a subjective test (circumstances as the defendant believed them to be) to be applied in establishing mens rea, and reflects the conclusion of the House of Lords in Savage and Parmenter [1992] AC699. As discussed in relation to clauses 2 and 3, in so far as it requires foresight of a risk of injury, it represents a raising of the threshold for the current equivalent grievous and actual bodily harm offences. The definition has been re-formulated in consultation with the Law Commission. In particular, it now makes clear that it is reckless for a defendant to take an unreasonable risk having regard to the circumstances as he knows or believes them to be.
Clause 15 - meaning of injury (clause 18 of LC218)
Clause 15 defines "injury" as physical or mental injury (for example the impairment of mental health inflicted by a "stalker"). The Bill does not define serious injury which will be left to the courts to interpret. Apart from in Clause 1, it does not include the effects of disease.
Clause 16 - supervening fault (clause 31 of LC218)
As recommended by the Law Commission, supervening fault provides for the prosecution of those who later become aware that they have done something which might lead to a particular result, but fail to take measures to prevent it.
Clause 17 - transferred fault (clause 32 of LC218)
This clause facilitates the prosecution of those who may have intended to affect one person but actually affect another, and reflects the Law Commission’s original formulation. It applies in the same way where there is awareness of a risk that a person will be affected.
Clause 18 - general defences (clause 20 of LC218)
This Clause provides for all existing defences (including those of duress and self defence) to continue to apply. The wording is unchanged from LC218 other than the addition of sub clauses 2 and 3 relating to torture (clause 12).
Clause 19 - effect of voluntary intoxication (clauses 21 and 35 of LC 218)
This Clause provides a limited exception to the definition of recklessness contained in clause 14, to the effect that a person who became voluntarily intoxicated cannot say that they thereby became unaware of the risk they were taking in doing an act and therefore should not be held criminally responsible for its consequences. Law Commission Report 229 (Voluntary Intoxication) contained detailed proposals for the replacement of the Majewski rules governing intoxication which have not been included in the Bill.
Clause 20 - Attempts (new clause)
This provision is designed to avoid any confusion over the definition of intent, by making clear that in cases involving attempts, the definition of intent is as contained in clause 14 (1) and not the definition generally used for the purposes of the Criminal Attempts Act 1981.
Clause 21 - Charging more than one offence (clause 22 of LC218)
This clause provides for clauses 1 to 13 each to count as one offence for charging purposes.
Clause 22 - Alternative verdicts (clause 23 of LC218)
Where a defendant is found not guilty of a more serious offence, this provision enables the court to find him guilty of a lesser offence. The Law Commission’s original provision has been extended to cover Crown Court appeal cases where the defendant was originally convicted in a magistrates’ court.
Clause 23 - Abolition of certain common law offences (clause 36 of LC218)
This Clause abolishes common assault, battery and mayhem which are replaced by new offences.
Clause 24 and Schedules 1 and 2 - Amendments and repeals (clause 37 of LC218)
These provide for a series of consequential amendments and repeals, including the amendment or abolition of various offences contained within the 1861 Act. In particular, the offence of furious driving, which the Law Commission recommended for repeal, has been retained and updated in modern language. This is because the offence fills a gap in the law and is still used, principally because it applies to unmechanised as well as mechanised vehicles, and to private land as well as public roads.
Clause 25 - Extent (clause 38 of LC218)
Subject to a number of specified of exceptions, the Bill extends to England and Wales.
Clause 26 - Commencement (clause 39 of LC218)
Clause 26 provides for the Act to be brought into force by way of a Statutory Instrument sometime after Royal Assent.
Clause 27 - Citation (clause 39 of LC218)
This Clause names the Bill.
Schedules
These contain various consequential changes resulting from the substantive proposals in the Bill. In some cases, those offences still retained from the 1861 Act have been modified to reflect the new definitions in the Bill.
