Chapter 3: Scope of the proposals
Date: Fri May 01 14:43:56 BST 1998
3.1 The Law Commission's Report 218 addressed a myriad of issues and their draft Bill was a weighty measure of 39 clauses. As the first stage in their proposals to codify the criminal law, in addition to reforming the Offences Against the Person Act 1861, it included some other offences of violence from common and statute law and also set out some general principles of law in the general defences. This chapter summarises the Government’s proposals and, where they diverge from the Commission’s proposals, gives an explanation.
3.2 Our proposals do not extend to all the issues covered in LC218. The Government has taken the view that the outdated offences in the 1861 Act are in the most urgent need of reform. These are the offences which cause the greatest difficulties for the courts, and are most obviously in need of modernisation. The priority in this law reform is therefore to place the main offences against the person on a good foundation. In doing so, we have examined all the relevant provisions in the 1861 Act, and have also taken those other parts of the Law Commission’s recommendations that are particularly relevant to offences of violence and included them in the draft Bill. Hence we have taken the Law Commission’s recommendations on omissions and supervening fault, and included them in our draft Bill. The Law Commission also included offences relating to detention and abduction. These offences are set out in recent statute law or are common law offences. The Government has no reason to think that they are defective, or in need of reform. Therefore we have taken the decision to set them on one side.
3.3 The Law Commission also recommended that two major general defences, at present set out either wholly in common law or partly in statute law and partly in common law, should be put into statutory form. The defences of duress and the justifiable use of force are important and substantial topics in their own right. They apply across the criminal law to many offences not contained within the overall category of non-fatal offences against the person. Their scope is therefore much wider than the offences under consideration in the rest of the Law Commission’s report, and in the Government’s draft Bill. They raise sensitive and complex questions. The consideration of these issues is a major project in itself, and including them as well as the other provisions referred to above in a single Bill would, we believe, be an unmanageable and impractical task. The Government has not yet reached any conclusion on the merit of these proposals and will consider them separately at a later date.
The Government’s Proposals
Summary of the contents of the Offences Against the Person Bill
3.4 The proposals apply to England and Wales, and are set out in a draft Bill of 28 clauses. Clauses 1 to 4 contain the set of simple and straightforward new offences to replace the various existing offences of grievous and actual bodily harm and assault. These are
- intentional serious injury
- reckless serious injury
- intentional or reckless injury
- assault
The Government accepts the Law Commission’s recommendations, and those of the earlier Criminal Law Revision Committee, that the offences should be clear and easily understood, and should be based on a combination of motivation and outcome. Hence the most serious offence is intentionally causing serious injury; the same injury caused recklessly, without the same intent, will be a less serious offence carrying a lower sentence. These offences do not exactly replicate those they replace, nor is it right that they should. There are some differences in relative seriousness between these proposals and the 1861 "equivalents" which are set out in the detailed analysis in Chapter 4. However the new offences provide a comprehensive and rigorous means of dealing with the vast generality of offences against the person.
Assault
3.5 The Government’s proposals on the offence of assault go rather further than those of the Law Commission. The Commission proposed to replace common assault and battery with a new offence of assault that would combine the two existing offences. In doing this the Commission were concerned to clarify the meaning of assault and to remove the need for separate offences of assault. However, although the Commission considered the effect of their proposals on a number of different assault offences, they did not undertake a comprehensive survey of all other statutory offences of assault. The Government is concerned to ensure that the courts are able to apply a single definition of assault in all those many offences which use the concept of assault, wherever they occur. In considering this issue, we identified over 70 different uses of assault in law. It is vital that in considering cases involving any of these offences, judges, lawyers and juries know exactly what is meant by the term assault.
3.6 The Government is therefore proposing to apply the definition of assault in this Bill to all assault offences, whether they be indecent assault (which is an assault committed in circumstances of indecency) or assault on a particular class of persons. This proposal builds on the initial premise of the Law Commission but goes much further than their recommendation. Schedule 1 to the draft Bill sets out the precise impact of these changes on each piece of legislation. The list is long and detailed; at this stage the Government is only proposing to align meanings. This paper does not address the separate question of whether all these offences of assault are now necessary.
Will applying the definition of assault in this Bill to other statutory assaults improve the clarity and accessibility of the law?
Specific assault offences in the Bill
3.7 The Government shares the Law Commission’s view that in general, the proposed new general offences offer protection for everyone, and that in principle special protection in law for particular classes or individuals should not normally be necessary. There are however some exceptions to this general principle. Some sections of society may require or deserve the additional protection of a specific provision in law. The Government has included in the Crime and Disorder Bill, now before Parliament, new aggravated offences for racially motivated violence which are based on existing offences of violence against the person in the Offences Against the Person Act 1861. Using these well-established and familiar offences will allow the courts to build on the existing law in dealing with those who commit these offences. The Government recognises that any subsequent implementation of its proposals to reform the Offences Against the Person Act 1861 will also have to amend the way in which these aggravated offences are formulated. The intention would be to re-state these offences following the model of the new offences against the person in the draft Bill. The Government recognises that it is unusual for Parliament to be asked to consider the same offences in quick succession in this way; however any such re-enactment would be a consolidation exercise to ensure that the law remained consistent.
3.8 The Law Commission recognised that the police and those carrying out a lawful arrest, had a legitimate and well-justified case for special recognition in the law, as they do at present. The Government agrees with this view. The Government is proposing to retain a number of particular offences relating to the police. The Law Commission had proposed to retain the offence of assaulting a police officer; the Government proposes to retain this offence and the offences of assault in resisting arrest. Clauses 5 to 7 therefore set out specific offences against the police. We recognise that Clause 6 does not fully mirror exactly the same approach of motivation and intent adopted by the Law Commission to the substantive offences in clauses 1 to 4 of this Bill, in that it does not require intent or recklessness to be proved. These offences are intended to replicate the present provisions relating to assaults on the police or in resisting arrest, so preserving the current legal position. The Government does not wish to reduce the protection given to the police in this law reform. The offences in Clauses 5 to 7 are derived partly from the 1861 Act, but also reflect recent statutory changes.
Is the retention of these special offences for the police generally supported?
Other Offences
3.9 A number of updated offences, mainly replacing offences currently contained in the 1861 Offences Against the Person Act, appear in clauses 8 to 13. Those relating to dangerous substances (clauses 8 and 9) are a reworking of the 1861 provisions to reflect the new substantive offences against the person, and to provide comprehensive protection against particular kinds of dangerous activity. The Law Commission had recommended that these provisions should be reviewed, and we have taken this opportunity to do so. Clause 8 is little changed in essence from the earlier provision; clause 9 has been amended to mirror the provisions of clause 8 where injury, rather than serious injury is caused, reflecting the structure of the first three clauses of the draft Bill. These changes are fully in accord with the principles of the Law Commission’s report.
3.10 The Government accepts the Law Commission’s reasoning that the existing offence of making threats to kill should be extended to threats to cause serious injury and also to threats made to a second person to harm a third person. This extended offence fills a gap in the equivalent 1861 Act offence, by creating a specific offence of threatening a third party. It is set out in clause 10. The new offence of administering a substance capable of causing injury (clause 11) was proposed by the Law Commission to replace the old poisoning offences. It has been revised slightly to remove any possibility that it could apply to bona fide medical treatment. Clause 12 restates the law on torture (presently set out in section 134 of the Criminal Justice Act 1988). Clause 13 sets out an updated version of the 1861 Act offences of causing danger on railways. These reflect and build on the Law Commission’s work but are set out in the body of the Bill rather than in a Schedule as the Commission had proposed.
Definitions of Intent, Recklessness and Injury
3.11 The Law Commission set out statutory definitions of intent and recklessness for the first time in their draft Bill. The Government welcomes this as giving a greater clarity and certainty to the criminal law, and accepts the Law Commission’s conclusion that it is appropriate to have a subjective rather than objective definition of recklessness for offences against the person. The Government recognises that a different definition will apply to other criminal behaviour, such as criminal damage, but is satisfied that this reflects the present state of the law. Clause 14 defines intent and recklessness for the purpose of the Bill. These definitions have been reformulated in close collaboration with the Law Commission.
3.12 Clause 15 defines the meaning of injury in the Bill. This clarifies the meaning of the new offences in clauses 1 to 4. There is however no definition of what is a serious injury. The Government, like the Law Commission, is content for the courts to decide what is appropriate in individual cases. The definition of injury does however raise a number of important questions. It is sufficiently wide to encompass psychological and psychiatric harm as well as physical harm. The definition will also allow the transmission of disease to be included in the clause 1 offence of intentionally causing serious injury.
Are these definitions appropriate?
Transmission of illness and disease
3.13 In seeking to reform an archaic and outdated law, the Government has to consider what the present law includes, how the courts have interpreted it, and how any replacement law should replicate or alter the present law. That is the context in which the question of whether the intentional transmission of disease ought to fall within the criminal law is being considered. In LC218 the Law Commission were unequivocal that the Offences Against the Person Act 1861 could be used to prosecute the transmission of disease, and recommended that the proposed new offences should enable the intentional or reckless transmission of disease to be prosecuted in appropriate cases. The Government has not accepted this recommendation in full.
3.14 There are few decided cases on this point, so the position in the criminal law is not entirely clear. The most commonly cited case, that of Clarence (1888), seems to indicate that the 1861 Act could not be successfully used to prosecute the reckless transmission of disease. However it is now accepted that the judgement related to one specific offence and to the issue of consent, and that in principle it may well be possible to prosecute individuals for transmitting illness and disease at least when they do so intentionally. Although this has not been tested in the courts in recent years, in Ireland and Burstow the House of Lords held that the 1861 Act could be used to prosecute the infliction of psychiatric injury. In reforming the law, the issue of whether and if so how the transmission of disease should fall within the criminal law needs the most careful consideration.
3.15 The Government recognises that this is a very sensitive issue. The criminal law deals with behaviour that is wrong in intent and in deed. The Law Commission’s original proposal, which included illness and disease in the definition of injury, would have resulted in the intentional or reckless transmission of disease being open to prosecution. They argued that the width of their proposal would be balanced by the fact that prosecution would only be appropriate in the most serious cases. The Government has considered their views very carefully, but is not persuaded that it would be right or appropriate to make the range of normal everyday activities during which illness could be transmitted, potentially criminal. We think it would be wrong to criminalise the reckless transmission of normally minor illnesses such as measles or mumps, even though they could have potentially serious consequences for those vulnerable to infection.
3.16 An issue of this importance has ramifications beyond the criminal law, into the wider considerations of social and public health policy. The Government is particularly concerned that the law should not seem to discriminate against those who are HIV positive, have AIDS or viral hepatitis or who carry any kind of disease. Nor do we want to discourage people from coming forward for diagnostic tests and treatment, in the interests of their own health and that of others, because of an unfounded fear of criminal prosecution.
3.17 The Government therefore considered whether it should exclude all transmission of disease from the criminal law, and concluded that that too would not be appropriate. The existing law extends into this area, even though it has not been used. There is a strong case for arguing that society should have criminal sanctions available for use to deal with evil acts. It is hard to argue that the law should not be able to deal with the person who gives a disease causing serious illness to others with intent to do them such harm. That is clearly a form of violence against the person. Such a gap in the law would be difficult to justify.
3.18 The Government therefore proposes that the criminal law should apply only to those whom it can be proved beyond reasonable doubt had deliberately transmitted a disease intending to cause a serious illness. This aims to strike a sensible balance between allowing very serious intentional acts to be punished whilst not rendering individuals liable for prosecution for unintentional or reckless acts, or for the transmission of minor disease. The Government believes that this is close to the effect of the present law, and that it is right in principle to continue to allow the law to be used in those rare grave cases where prosecution would be justified. This proposal will clarify the present law which, because it is largely untested is unclear; by doing so the effect of the law will be confined to the most serious and culpable behaviour.
3.19 It is important to emphasise that this proposal does not reflect a significant change in the law. Prosecutions for the transmission of disease are very rare for very good reasons. Any criminal charge has to be supported by evidence and proved to a court beyond reasonable doubt. It is very difficult to prove both the causal linkage of the transmission and also to prove that it was done intentionally. To do so beyond reasonable doubt is even more difficult. The Government does not expect that the proposed offence will be used very often, but considers that it is important that it should exist to provide a safeguard against the worst behaviour.
3.20 Clause 15 provides for the intentional transmission of serious injury or disease to be included for the purposes of clause 1 (intentional serious injury), but not for any other purpose. This means that only those who transmit diseases with intent to cause serious injury, will be criminally liable.
The Government invites views on this proposal.
Defences
3.21 As explained in paragraph 3.3 above, the Government’s Bill does not include all the Law Commission’s recommendations relating to general defences. However the Government considered that it was important to include a number of issues relating to the liability of defendants in the Bill. The Law Commission proposed to include clauses relating to supervening and transferred fault, and the Government agrees that it would be useful to have these technical issues set out in statute law. They are contained in clauses 16 and 17.
3.22 The Bill also provides that the general defences already set out in the common or statute law will continue to apply to the offences in the bill. This will ensure that the present law will continue to apply even though there is no specific mention of provisions relating to such important issues as consent, as the Law Commission had proposed. The Law Commission itself has issued separate consultation papers on the specific question of consent in the criminal law, and is still considering the issues involved.
3.23 The Bill also applies only a limited provision on intoxication, similar to that in the Law Commission’s report no 218. Since then the Law Commission has made separate recommendations about replacing the Majewski rules in statute law in their report "Intoxication in the Criminal Law" (LC 122). The Government considered these proposals, but thought that they were unnecessarily complex for the purposes of this Bill. Clause 19 sets out criteria for the courts to apply when considering whether a defendant had chosen to be drunk. There should be no loophole in the law which excuses violent behaviour simply because an attacker chose to become intoxicated and run the risks that entails.
Alternative Verdicts
3.24 The Law Commission also recommended a new provision for alternative verdicts for use by the courts in dealing with cases of offences against the person, which the Government has accepted, and are set out in clause 22. These largely replicate the existing arrangements for alternative verdicts (set out in the Criminal Law Act 1967), which are often used for offences of violence where a more serious offence may not be proved beyond reasonable doubt, but a lesser offence is so proved.
3.25 The new element of the proposal is a system of alternative verdicts in the magistrates’ courts where they do not exist at present. There is no real difference in principle in enabling the magistrates’ courts to have the same powers to use alternative verdicts as the Crown Court now does. This would enable for example, the magistrates’ courts to find a defendant guilty of assault (clause 4) even though they had not found the defendant guilty of intentionally or recklessly causing injury (clause 3) or assault to resist arrest (clause 7). By extension these provisions have also been extended to the Crown Court in hearing appeals against the decision of the magistrates’ court. The Crime and Disorder Bill that is now before Parliament contains new racially aggravated assaults based on the offences in the 1861 Act. The Government would also wish to give the courts the power to provide alternative verdicts between the substantive offence (clause 4 assault) and the aggravated racially motivated offence.
The Government invites views on extending the system of alternative verdicts to the magistrates’ courts.
Other issues
3.26 The Law Commission also suggested that a number of other offences in the 1861 Act be repealed, and those that are retained should be modernised to reflect the changed formulation of the new substantive offences in clauses 1 to 4. The Government has largely accepted these recommendations, but has decided that where apparently archaic offences are still used by the courts they should be retained. Hence the Government does not propose to repeal section 35 of the 1861 Act on wanton and furious driving which applies to a wide variety of vehicles both on and off the public highway.
3.27 A number of other issues do not feature in the Bill. It deals only in non-fatal offences and does not extend to the Commission’s proposals relating to involuntary manslaughter and corporate killing, as set out in Law Commission's report number 237. These are the subject of separate consideration by an inter-departmental working party. Furthermore, pending the outcome of the Law Commission’s ongoing study of Consent in the Criminal Law, issues of consent have been largely removed from the Bill. The common law defence of consent will continue to apply to all the offences in the Bill by virtue of clause 18 of the draft Bill.
The impact of the Bill
3.28 The main purpose of the Bill is to modernise the existing law and incorporate it in a single statute. Although there will be some adjustments to the present law, no major substantive changes are anticipated. For example, most current offences will simply be replaced by revised and modernised offences, which cover the same kinds of behaviour and carry similar maximum penalties. It is intended that the effect will be to make the law easier to understand and to apply, which should result in more streamlined cases, and in the longer term fewer appeals.
3.29 The Government does not expect that the Bill will lead to substantial changes in prosecution policy, mode of trial, or sentencing outcomes, although we recognise that there will be some shifts in boundaries between the new offences. On this basis the Government does not think that the Bill will add extra long term costs to the criminal justice system, although it recognises that reforming offences that come before the courts so frequently will require a significant training effort for the police, judges, prosecutors and other criminal justice practitioners.
The Government would welcome views on the likely practical impact of the changes in the Bill .
