The Offences Against the Person Act 1861
Therefore, there is a need to modernize this 140-year old legislation. In fact, Justice Brooke opined that it is “intolerable that an important law covering criminal assaults, batteries and wounding…should be based on the antique and obscure language of an Act.”3 In a nutshell, the Act is outdated, unclear and unfit for its purpose.According to Lacey, et al., “the somewhat imperfect hierarchy of the Act reflects both the differences in the seriousness of the injury and harm and in the mental element.”4 Indeed, it can be seen that assault and battery carry a low penalty (6 months imprisonment) compared to Section 47 (five years)—with only a little difference in the effect and manner of committing the crime.5 Moreover, offenses in Section 20 and 47 share the same maximum sentence of five years despite the seriousness of offenses in the former as compared to the latter. This is certainly an illogical consequence of this obsolete legislation—“a rag-bag of offenses brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form.”6The Law Commission has also pointed out the Act’s weaknesses especially “the failure of sections 18, 20 and 47 to produce a reasoned scale of offenses based on the seriousness of the injury intended or caused, or to distinguish properly between the seriousness of offenses on that basis.”7 It has been therefore suggested that new legislation should structure a logical sequence of offenses ranging from the lesser to the most serious crimes.Legal scholars thus believe that the Act should now put hierarchical lines on the level of seriousness and moral differences—with a great degree of specificity to make it unmistakably clear-cut. Consequently, there must be clear foundations in structuring various levels of culpability or different circumstances in whichthe offense is committed that would justify the existence of separate crimes.