Chapter 2: Background
Date: Fri May 01 14:43:56 BST 1998
2.1 This paper sets out the Government’s proposals for the reform of the law for dealing with non-fatal violence against the person. It does not deal with the law on murder or manslaughter. It does not attempt to be a full codification of the law in this area, or to replace all the common law offences that relate to violence. Its primary purpose is to replace the outdated offences contained in the Offences Against the Person Act 1861 with a rational and coherent set of new offences. In doing so it is not the Government’s intention to alter fundamentally the scope or operation of the law. It does not intend to make the law either tougher or more lenient, but to make it clearer and easier to use. In one or two minor respects the proposals will extend the scope of the present law to fill gaps that have been identified, and a few apparently archaic offences are being retained because they are still useful to the prosecuting authorities. The Government recognises that the proposed new offences will bring changes, some of them quite fundamental, to this much used part of the law. This is an important reason why the Government wishes to seek views more widely before finalising its proposals.
Background
2.2 The law on Offences Against the Person has long been criticised by judges and lawyers as archaic, confusing, and unhelpful to all those involved in the criminal justice system. Some have also argued that the state of the law in this areas creates unnecessary and expensive appeals arising from wrong decisions on questions of law. It was against this background of general criticism that in November 1993, as a step towards codification of the criminal law, the Law Commission published its report No 218 "Offences against the Person and General Principles", from which the current proposals are derived.
2.3 As the Law Commission acknowledged, their work relied on the earlier Report on Offences Against the Person by the Criminal Law Revision Committee (CLRC) which first suggested a new set of offences to replace the current offences. In particular, they suggested that the distinctions in the 1861 Act between wounding and various types of "bodily harm" should be swept away, in favour of the simpler concept of "causing injury". They also suggested that there should be a distinction between serious injury and other injury, and that in respect of serious injury there should be a distinction between intentionally causing such injury and recklessly causing such injury.
2.4 In preparing law reform proposals the Law Commission adopt a careful and consultative approach. Their report No 218 was preceded by their 1992 Consultation Paper number 122, Legislating the Criminal Code: Offences Against the Person and General Principles. In this the Law Commission accepted these basic conclusions of the CLRC and incorporated them into their proposals. The responses to the Law Commission’s Consultation exercise revealed strong support for legislation.
Law Commission report number 218: Offences Against the Person and General Principles (LC218)
2.5 The Law Commission presented their considered conclusions on reforming offences against the person and general defences in this report, published in 1993. In addition to a careful analysis of the issues, it included a draft Criminal Law Bill of 39 clauses and 4 schedules. The report had two distinct objectives:
- to reformulate those non-fatal offences against the person found largely, but not exclusively, in the Offences Against the Person Act 1861 in a more comprehensible and legally certain manner
- to place in statute for the first time certain defences such as duress and self-defence which apply not only to the newly formulated offences but also across the criminal law as a whole.
2.6 The Law Commission’s report was warmly welcomed by many in the criminal justice system as a clear and coherent statement of the law of violence against the person. The Law Commission themselves consider it to be one of their most important law reform projects. Since its publication, successive Lord Chief Justices have called for the proposals to be implemented.
The Government response
2.7 The Government has considered the Law Commission’s proposals with great care. Following careful analysis and consultation with the police and prosecuting authorities, an interdepartmental working group, in close association with the Law Commission, considered the issues in great detail. It was particularly concerned to test the proposals for their practical effect and their robustness in the light of developments in case and statute law since the Law Commission had reported. The outcome of this process was the Draft Bill. This is structured rather differently from the Law Commission’s draft Bill, but largely reflects the policies and principles adopted by the Commission.
2.8 In a written Parliamentary answer on 31 July 1997, the Home Secretary gave the formal Government response to the report:
" The Law Commission’s report no 218, published in November 1993 is a major contribution to the development of the criminal law. It was warmly welcomed by many involved with the criminal justice system as creating a clearer and more coherent statement of the law of violence against the person. The Government have considered the Law Commission’s recommendations with great care, and accept the principle of their proposals for reform of those offences contained mainly in the Offences Against the Person Act 1861.
This is a complex and difficult area of the law, and case law has evolved since the Law Commission’s report was first published. It is important that any proposals to reform offences that come before the courts so frequently, and have been in existence for 136 years, are robust, well thought through and well supported. Following a detailed consideration of their report, done in close collaboration with the Law Commission, we have decided to publish a draft Bill in a consultation paper later this year. This will set out our initial proposals for reforming the law in this area, based on the Law Commission’s report, and seek views on some of the difficult issues around the technical legal changes proposed by the Law Commission such as definitions of intent, recklessness and intoxication or whether the intentional transmission of disease should be included in the Bill. The proposals will apply to England and Wales.
In accepting the principle of reforming the Offences Against the Person Act 186, the Government does not intend to take forward all the Law Commission’s proposals at this juncture. In particular, the Law Commission made recommendations for setting out the general defences of duress and the justifiable use of force in statute. We recognise the importance of these proposals, which are not directly related to the reform of the 1861 Act, but they raise some very difficult questions which should be considered in a longer timescale."
