The Offences against the Person Act 1861 (24 & 25 Vict c 100) is an
ActAn Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the
ParliamentThe Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
of the
United Kingdom of Great Britain and IrelandThe United Kingdom of Great Britain and Ireland was the formal name of the United Kingdom during the period when what is now the Republic of Ireland formed a part of it....
. It consolidated provisions related to offences against the person (an expression which, in particular, includes offences of violence) from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the
criminal law consolidation Acts 1861The criminal law consolidation Acts 1861 were Acts of the Parliament of the United Kingdom. They consolidated provisions from a large number of earlier statutes which were then repealed. Their purpose was to simplify the criminal law...
. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation Act, the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
(and the equivalent Irish Act), incorporating subsequent statutes.
Although it has been substantially amended, it continues to be the foundation for prosecuting personal injury, short of murder, in the courts of
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
.
In England and Wales, and in Northern Ireland, the sexual offences under this Act have all been repealed. For current sexual offences see the
Sexual Offences Act 2003The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
and the Sexual Offences (Northern Ireland) Order 2008. In
IrelandIreland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
(both
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and the
RepublicIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
) the Offences against the Person Act 1861 continues to be the basis of a ban on abortion.
Commentary
The Act as originally drafted listed specific methods whereby harm might be caused. For example, section 18 originally included an offence of shooting which could be committed with any of the specified intents. Sections 11 to 15 specified various means by which a person might attempt to commit murder.
In some cases, these reflected political issues of then great significance. For example, the
FenianThe Fenians , both the Fenian Brotherhood and Irish Republican Brotherhood , were fraternal organisations dedicated to the establishment of an independent Irish Republic in the 19th and early 20th century. The name "Fenians" was first applied by John O'Mahony to the members of the Irish republican...
s were promoting their political case by leaving barrels of explosives in public places. Hence, sections 28 to 30 and 64 specifically address the problem of the resulting injuries. Similarly, children were throwing stones at passing railway trains, and these provisions remain in force.
As originally enacted, the Act had 79 sections. In
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, 37 sections remain in force, namely sections 4, 5, 9, 10, 16 to 18, 20 to 38, 44, 45, 47, 57 to 60, 64, 65, 68 and 78. Of those, only sections 25, 34 to 36 and 78 have not been either partially repealed or otherwise amended. Different subsets of its provisions remain in force in
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and in the
Republic of IrelandIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
.
Dangerous offenders
See the Criminal Justice Act 2003 for further provisions about sentencing for manslaughter and for offences under sections 4 and 16 to 47 of this Act.
Sections 1 to 3 - Murder
Sections 1 to 3 dealt with the death penalty for
murderMurder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
and have been repealed.
In the Republic of Ireland, the references to murder in these sections were changed to references to capital murder by section 15 of the Criminal Justice Act 1964. They were repealed by section 9(1) of, and the second schedule to, the Criminal Justice Act 1990. But the repeal of section 1 did not affect the operation of sections 64 to 68.(s.9(2))
Section 1 - Penalty for murder
This section replaced the corresponding provision in section 3 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
(9 Geo 4 c 31) and section 4 of the corresponding Irish Act (10 Geo 4 c 34).
Section 3 - Disposal of body
This section provided that the body of every person executed for murder was to be buried within the precincts of the last prison in which he had been confined, and that his sentence was to direct that this should happen. It replaced the corresponding provision in section 16 of the
Anatomy Act 1832The Anatomy Act 1832 was a United Kingdom Act of Parliament that gave freer license to doctors, teachers of anatomy, and bona fide medical students to dissect donated bodies...
(as amended by section 1 of the next mentioned Act) and replaced section 2 of the Hanging in Chains Act 1834 (4 & 5 Will 4 c 26).
Section 4
The penalty for offences under this section was increased by article 5(1) of the Criminal Law (Amendment) (Northern Ireland) Order 1977, but not in relation to offences "committed before the commencement" of that order (art.5(3)).
Conspiracy to murder
This section creates the offence of
conspiracy to murderConspiracy to murder is a statutory offence in England and Wales and Northern Ireland and the Republic of Ireland.-England and Wales:Conspiracy to murder is an offence by virtue of section 1 of the Criminal Law Act 1977.Mens rea...
in the
Republic of IrelandIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
.
The repeal of as much of this section as related to the offence of conspiracy to murder for
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
was consequential on the codification of
conspiracyIn the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
by Part I of the
Criminal Law Act 1977The Criminal Law Act 1977 is an Act of the Parliament of the United Kingdom. Most of it only applies to England and Wales. It is mainly significant because it defines the offence of conspiracy in English law...
. The effect of this section, in relation to conspiracy to commit murder abroad, was preserved by section 1(4) of that Act.
The repeal of as much of this section as related to the offence of conspiracy to murder for
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
was consequential on the codification of
conspiracyIn the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
by Part IV of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)).
Section 5 - Manslaughter
This section now provides that a person convicted of
Manslaughter in English lawManslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
is liable to imprisonment for life or for any shorter term.
In
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
it now reads:
Repeals
The words "or to pay" to the end were repealed by Part I of
Tenth Schedule to the
Criminal Justice Act 1948The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
. The other words were repealed by the Statute Law Revision Act 1892.
"Penal servitude for life"
This means imprisonment for life: See section 1(2) of the
Criminal Justice Act 1948The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
and section 1(2) of the Criminal Justice Act (Northern Ireland) 1953 and
section 11(2) of the Criminal Law Act, 1997.
Other matters
Sections 6 to 8 have been repealed. They respectively dealt with the form of the indictment for murder and manslaughter, with excusable homicide and with petty treason.
Section 6 replaced section 4 of the Criminal Procedure Act 1851 (14 & 15 Vict c 100). This section was repealed for the Republic of Ireland on 22 August 1924.
Section 7 replaced section 10 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
Section 8 replaced section 2 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
Jurisdiction
Sections 9 and 10: Murder or manslaughter abroad. Section 9 gives the courts in England, Wales and Ireland extra-territorial jurisdiction over homicides committed by British subjects overseas. (Note however the restricted definition of "subject" under section 3 of the British Nationality Act 1948.) Section 10 gives these courts jurisdiction over fatal acts committed by British subjects overseas where the death occurs in England, Wales or Ireland, and jurisdiction over fatal acts committed in England, Wales or Ireland by anyone, including aliens, where the death occurs abroad. (The word "criminally" in that section has been held to exclude fatal acts done by aliens overseas although the death occurs in England, Wales or Ireland, since such acts are not punishable under the criminal law.)
Sections 9 and 10 respectively replace sections 7 and 8 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
. Section 10 was first enacted in 1728/29 by
2 Geo 2 c 21.
Attempts to murder
Sections 11 to 15 dealt with attempts to murder and have been repealed. See now the
Criminal Attempts Act 1981The Criminal Attempts Act 1981 is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes...
.
Section 11 - Administering poison or wounding or causing grievous bodily harm with intent to murder
This section replaced section 2 of the
Offences against the Person Act 1837The Offences against the Person Act 1837 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
(7 Will 4 & 1 Vict c 85).
Section 12 - Destroying or damaging a building with gunpowder with intent to murder
This section replaced section 2 of the Arson Act 1846 (9 & 10 Vict c 25) (Malicious injuries by fire)
Section 13 - Setting fire to or casting away a ship with intent to murder
Section 14 - Attempting to administer poison, or shooting or attempting to shoot, or attempting to drown, suffocate or strangle with intent to murder
This section replaced section 3 of the
Offences against the Person Act 1837The Offences against the Person Act 1837 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
.
Section 15 - Attempting to commit murder by any other means
Threats to kill
Section 16
The making of a threat to kill is an offence where the defendant intends the victim to fear it will be carried out. It is immaterial whether it is premeditated or said in anger.
Although the normal maximum sentence is ten years, offenders deemed to present a "significant risk" of "serious harm" to the public can now receive a life sentence under the
Criminal Justice Act 2003The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
.
Other threats of violence may be prosecuted summarily under section 4 of the
Public Order Act 1986The Public Order Act 1986 is an Act of the Parliament of the United Kingdom. It creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936...
.
This section, as originally enacted, replaced the offence of sending, delivering or uttering a letter or writing threatening to kill or murder under section 1 of the 10 & 11 Vict c 66 (1847); the other offences under that section being consolidated elsewhere.
In Northern Ireland, this section was substituted by article 4 of the Criminal Law (Amendment) (Northern Ireland) Order 1977 (S.I. 1977/1249 (N.I. 16)).
In the Republic of Ireland, this section has been repealed and replaced by section 5 of the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Bodily harm
In the Republic of Ireland, sections 16 to 26 and 28 to 34 of this Act were repealed by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
Section 17 - Impeding a person endeavouring to save himself or another from shipwreck.
Shipping was the lifeblood of the Empire and so specific offences to protect seamen were common.
Wounding and grievous bodily harm
The offences under sections 18 and 20 of this Act are discussed in detail in the article
grievous bodily harmGrievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
.
Section 18
This section creates the offences of wounding and causing grievous bodily harm, with intent to cause grievous bodily harm, or to resist arrest. It is punishable with life imprisonment.
-
- "18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person ... with intent ... to do some ... grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable ... to be kept in penal servitude for life ..."
This section replaces section 4 of the
Offences against the Person Act 1837The Offences against the Person Act 1837 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
.
The offences under this section of shooting and attempting to shoot with intent have been repealed. It is also no longer possible to charge the remaining offences of wounding and causing grievous bodily harm as having been committed with intent to maim, disfigure or disable as the relevant words have been repealed.
Section 19
This section defined the expression "loaded arms". The repeal of this section was consequential on the repeal of the offences of shooting and attempting to shoot with intent under sections 14 and 18 above.
Section 20
This section creates the offences of wounding and inflicting grievous bodily harm. They are less serious than the offences created by section 18 and carry a maximum prison sentence of 5 years.
-
- "Inflicting bodily injury, with or without weapon
- 20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and, being convicted thereof shall be liable ... to be kept in penal servitude ...."
This section replaces section 4 of the
Prevention of Offences Act 1851The Prevention of Offences Act 1851 is an Act of the Parliament of the United Kingdom.It is still in force in the Republic of Ireland.It was retained for the Republic of Ireland by...
(14 & 15 Vict c 19). The offence of wounding either with or without a weapon or instrument under this section replaces the offence of stabbing, cutting or wounding under that section.
Garrotting, etc. - Administering chloroform, etc.
Sections 21 and 22: Attempting to choke, &c., in order to commit or assist in the committing of any indictable offence. Certain forms of attack have always been viewed with particular horror and the use of strangulation or drugs to render someone unconscious with a view to committing a crime require special treatment. Contemporary crime including
date rape"Date rape", often referred to as acquaintance rape, is an assault or attempted assault usually committed by a new acquaintance involving sexual intercourse without mutual consent....
following the use of hypnotic drugs such as
FlunitrazepamFlunitrazepam is marketed as a potent hypnotic, sedative, anticonvulsant, anxiolytic, amnestic, and skeletal muscle relaxant drug most commonly known as Rohypnol...
show that little has changed save that where the intended offence is of a sexual nature, separate legislation applies
(see Sexual Offences Act 2003The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
).
Section 22 replaces section 3 of the
Prevention of Offences Act 1851The Prevention of Offences Act 1851 is an Act of the Parliament of the United Kingdom.It is still in force in the Republic of Ireland.It was retained for the Republic of Ireland by...
.
Poisoning
Sections 23 and 24 cover the insidious forms of attack based on administering poisons or other dangerous chemicals and substances intending to injure another. Although rarely used today, the offences remain available should the specific circumstances arise, e.g. sending a package containing a dangerous substance to an embassy.
Section 25 permits a jury to find a person charged with an offence under section 23 guilty of an offence under 24.
Sections 23 to 25 respectively replace sections 1 to 3 of the 23 & 24 Vict c 8 (1860) (unlawful administering of poison).
Section 26 - Neglecting or causing bodily harm to servants
This section deals with the problem of neglect by an employer who failed to provide adequate food, clothing and accommodation for staff and servants. It is punishable on conviction on indictment with imprisonment for a term not exceeding five years.
This section replaces section 1 of the Poor Law (Apprentices) Act 1851 (14 & 15 Vict c 11).
The offence of assault under that section has been replaced by one of doing or causing bodily harm.
See also the summary offence under section 6 of the
Conspiracy and Protection of Property Act 1875The Conspiracy and Protection of Property Act 1875 is an Act of the Parliament of the United Kingdom relating to labour relations, which together with the Employers and Workmen Act 1875, fully decriminalised the work of trade unions...
which could be committed by neglecting to provide medical aid.
Section 27 - Abandoning or exposing a child under the age of two
The offence is in practice obsolete, as it has been superseded by the offence of
cruelty to persons under sixteen under section 1 of the
Children and Young Persons Act 1933The Children and Young Persons Act 1933 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland...
. The exception to this is that it can be committed by a person who does not have responsibility for the child within the meaning of the 1933 Act (assuming that such a person can
unlawfully abandon or expose a child), and also by a person who is under sixteen.
Explosives, etc.
Sections 28, 29, 30, and 64 created a range of criminal offences supplementing the
Explosive Substances Act 1883The Explosive Substances Act 1883 is an Act of the Parliament of the United Kingdom. It makes it illegal to use -- or conspire or intend to use -- any explosive substance to cause an explosion likely to endanger life or cause serious injury to property, whether or not any explosion actually takes...
and the Explosives Act 1875. These remain in force, although the Criminal Damage Act 1971 covers all aspects of the resulting damage to property and the
Terrorism Act 2000The Terrorism Act 2000 is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism Act 1989 and the Northern Ireland Act 1996...
deals with possession for terrorist purposes.
Section 28 replaces section 3 of the Arson Act 1846 (malicious injuries by fire).
Section 29 replaces section 4 of the Arson Act 1846.
Section 30 replaces the corresponding offence under section 6 of that Act; the other offences under that section being consolidated elsewhere.
Section 31 - Setting spring guns with intent to inflict grievous bodily harm
This section addresses the problem of those who wish to protect their property with hidden traps.
This section replaces sections 1 to 4 of the 7 & 8 Geo 4 c 18 (1827) (An Act to prohibit the setting of spring guns, mantraps and other engines calculated to destroy human life or inflict grievous bodily harm).
Causing danger on railways
Sections 32 to 34 protect the railways from those who place obstructions on the line, throw stones at the passing trains, and generally endanger the passengers.
Section 32 replaced the offence of attempting to endanger the safety of passeengers under section 6 of the
Prevention of Offences Act 1851The Prevention of Offences Act 1851 is an Act of the Parliament of the United Kingdom.It is still in force in the Republic of Ireland.It was retained for the Republic of Ireland by...
; the other offence being consolidated elsewhere.
Section 33 replaced section 7 of that Act.
Section 35 - Drivers of carriages injuring persons by furious driving
In England and Wales and Northern Ireland this section creates the offence of
causing bodily harm by wanton or furious drivingCausing bodily harm by wanton or furious driving is a statutory offence in England and Wales and Northern Ireland. It has been abolished in the Republic of Ireland.-Statute:...
. It is repealed in the Republic of Ireland.
Section 36 - Assaulting or obstructing a clergyman in the execution of his duties
In
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, this section reads:
Repeals
The words omitted at the end were repealed by section 1(2) of the
Criminal Justice Act 1948The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
and the Criminal Justice Act (Northern Ireland) 1953.
This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
"Divine service"
See Matthews v King [1934] 1 KB 505, 50 TLR 62, 30 Cox 27
"Misdemeanor"
See the
Criminal Law Act 1967The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
and the Criminal Law Act (Northern Ireland) 1967.
Section 37 - Assault on any person authorized to preserve any shipwrecked vessel or goods
This offence is triable only on indictment and punishable with imprisonment for a term not exceeding seven years.
This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Section 38
This section was repealed for Northern Ireland by section 7(3) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c.28) (N.I.). The offences of assault with intent to resist arrest and assaulting, etc. a peace officer under this section were replaced by section 7(1) of that Act.
Assault with intent to resist arrest
In England and Wales, this section creates the offence of
assault with intent to resist arrestAssault with intent to resist arrest is a statutory offence of aggravated assault in England and Wales and Northern Ireland and the Republic of Ireland.-England and Wales:...
and provides the penalty to which a person is liable on conviction of that offence on indictment.
Assaulting, resisting or wifully obstructing a peace officer in the execution of his duty
This offence was repealed and replaced by section 51 of the
Police Act 1964The Police Act 1964 was an Act of the Parliament of the United Kingdom that updated the legislation governing police forces in England and Wales, constituted new police authorities, gave the Home Secretary new powers to supervise local constabularies, and allowed for the amalgamation of existing...
. An assault on a constable in the execution of his duty can now be prosecuted summarily under section 89(1) of the
Police Act 1996The Police Act 1996 is an Act of the Parliament of the United Kingdom which defined the current police areas, constituted the current police authorities and set out the relationship between the Home Secretary and the territorial police forces. It replaced the Police and Magistrates Courts Act...
.
Assault with intent to commit felony
The repeal of this offence was consequential on the abolition of the distinction between
felonyA felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
and misdemeanour.
Section 39 - Assaults with intent to obstruct the sale of grain, or its free passage
Immediately before its repeal, in England and Wales, this section read:
Repeals
The words "and kept to hard labour" were repealed for England and Wales by section 1(2) of the
Criminal Justice Act 1948The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
and for Northern Ireland by section 1(2) of the Criminal Justice Act (Northern Ireland) 1953.
This section was repealed as it applied to England and Wales by section 1(1) of, and Group 5 of
Part I of Schedule 1 to, the Statute Law (Repeals) Act 1989. It has not been replaced.
This section was repealed for the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Derivation
This section was derived from the corresponding provision in section 26 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
, and replaced both that provision and section 2 of the 14 & 15 Vict c 92 (which applied to Ireland). The words in square brackets in the text of section 39 above are different to those in section 26 of the Offences against the Person Act 1828.
This offence was previously created by the Corn Trade Act 1737.
Mode of trial
This offence could be tried at
quarter sessionsThe Courts of Quarter Sessions or Quarter Sessions were local courts traditionally held at four set times each year in the United Kingdom and other countries in the former British Empire...
.
Proposals for repeal
In 1980, the
Criminal Law Revision CommitteeThe Criminal Law Revision Committee of England & Wales is a standing committee of learned legal experts that may be called upon by the Home Secretary to advise on legal issues and to report back recommendations for reform...
recommended that sections 39 and 40 be repealed.
In a joint report dated 7 April 1989, the
Law CommissionIn England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
and the
Scottish Law CommissionThe Scottish Law Commission is Scottish advisory public body established by Parliament of the United Kingdom in 1965 to keep the law of Scotland under review and recommend necessary reforms to improve, simplify and update Scots law. It plays a leading role in developing the law for the people of...
said that, between them, the offences of
common assaultCommon assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
,
batteryBattery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
and
affrayIn many legal jurisdictions related to English common law, affray is a public order offence consisting of the fighting of two or more persons in a public place to the terror of ordinary people...
, and the offences under the Criminal Damage Act 1971, made adequate provision for the punishment of any conduct that amounted to an offence under either section 39 or section 40. They said that the
Home OfficeThe Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
agreed that sections 39 and 40 served no further useful purpose. They recommended that both sections be repealed.
Section 40 - Assaults on seamen, etc
Immediately before its repeal, in England and Wales, this section read:
Repeals
The words omitted were repealed for England and Wales by section 1(2) of the
Criminal Justice Act 1948The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
and for Northern Ireland by section 1(2) of the Criminal Justice Act (Northern Ireland) 1953.
This section was repealed as it applied England and Wales by section 1(1) of, and Group 5 of Part I of Schedule 1 to, the Statute Law (Repeals) Act 1989. It has not been replaced.
This section was repealed for the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Derivation
This section was derived from and replaced the corresponding provision in section 26 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
This offence was previously created by section 2 of the Shipping Offences Act 1793.
Appeal
The 20 & 21 Vict c 43 provided that either party could appeal to one of the superior courts of common law if they were dissatisfied with the determination of the justices as being erroneous in point of law.
Proposals for repeal
As to the recommendations of the Criminal Law Revision Committee, Law Commission, and Scottish Law Commission, see the preceding section of this article.
Section 41 - Assault arising from combination
The repeal of this section was consequential on the decriminalization of trade unions. See the
Criminal Law Amendment Act 1871The Criminal Law Amendment Act 1871 is an Act of the Parliament of the United Kingdom passed by W. E. Gladstone's Liberal Government...
and the
Trade Union Act 1871Trade Union Act 1871 was a Act of the Parliament of the United Kingdom which legalised trade unions for the first time in the United Kingdom.-Background:...
.
Section 42 - Common assault and battery
In England and Wales, this section has been repealed and has been replaced by section 39 of the Criminal Justice Act 1988. The
Criminal Law Act 1977The Criminal Law Act 1977 is an Act of the Parliament of the United Kingdom. Most of it only applies to England and Wales. It is mainly significant because it defines the offence of conspiracy in English law...
, Schedule 6, increased the maximum fine to £200. (Entries relating to Offences Against the Person Act 1861 repealed by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 16).
Section 39 of the Criminal Justice Act 1988 made the offence a summary only offences, and a person guilty of either assault or battery liable to a fine not exceeding level 5 (£5,000) on the standard scale and to imprisonment for a term not exceeding six months, or to both.
In Northern Ireland, this section was substituted by section 23(1) of the Criminal Justice Act (Northern Ireland) 1953 (c.14) (N.I.). Section 23(2) of that Act provides that any reference to this section in section 46 of the
Summary Jurisdiction Act (Northern Ireland) 1953The Summary Jurisdiction Act 1953 is an Act of the Parliament of Northern Ireland that restricted the freedom of the press in relation to court proceedings in Northern Ireland. It prohibited the press from publishing any opening statements, and gave the magistrate discretion to forbid the...
, or in any other enactment, is to be construed as a reference to this section as amended by that Act. This provision is said to be for the removal of doubt.
This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Section 43 - Aggravated assault and battery
This section replaces section 1 of the 16 & 17 Vict c 30 (1853) (aggravated assaults upon women and children)
In England and Wales, this section has been repealed and has not been replaced. The
Criminal Law Act 1977The Criminal Law Act 1977 is an Act of the Parliament of the United Kingdom. Most of it only applies to England and Wales. It is mainly significant because it defines the offence of conspiracy in English law...
, Schedule 6, increased the maximum fine to £500.
In Northern Ireland, this section makes provision for the summary prosecution of aggravated assaults on women and children. The maximum fine for this offence was increased by section 60(2) of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland) 1935 (c.13) (N.I.)
In the Republic of Ireland, this section was repealed by section 26 of, and the second schedule to, the Criminal Justice Act 1951 (No.2)
Section 44 and 45
In the Republic of Ireland, these sections was repealed by section 26 of, and the second schedule to, the Criminal Justice Act 1951 (No.2)
Section 46
This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Section 47
This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Assault occasioning actual bodily harm
In England and Wales, and in Northern Ireland, this section creates the offence of assault occasioning actual bodily harm and provides the penalty to which a person is liable on conviction of that offence on indictment.
In the Republic of Ireland this offence has been replaced by the offence of assault causing harm under section 3 of the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Common assault
In England and Wales, the provision in this section relating to common assault has been repealed.
In Northern Ireland, this section provides that a person who is convicted on indictment of
common assaultCommon assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
is liable to imprisonment for a term not exceeding two years. This penalty was substituted by virtue of article 4(2)(b) of the Criminal Justice (No.2) (Northern Ireland) Order 2004 and was previously imprisonment for a term not exceeding one year.
Rape, abduction and defilement of women
Section 48 - Rape
This section provided that a person guilty of
rape-Statute:The offence is created by of the Sexual Offences Act 2003:-Consent, s.1 & & :This expression is defined by section 74. The evidential and conclusive presumptions created by sections 75 and 76 apply to this offence...
was liable to be kept in penal servitude for life or for any term not less than three years or to be imprisoned (with or without hard labour) for any term not exceeding two years.
It was a revised version of section 16 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
, incorporating the non-textual amendments made to that section by section 3 of the Substitution of Punishments of Death Act 1841 (4 & 5 Vict c 56) and section 2 of the Penal Servitude Act 1857. It replaced section 16 of the 1828 Act and the corresponding provision in section 3 of the 1841 Act, which were repealed.
In England and Wales, this section was repealed and replaced by section 1(1) of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
. In Northern Ireland, repeal of this section was consequential upon the codification of the law relating to sexual offences by the Sexual Offences (Northern Ireland) Order 2008.
Section 49 - Procuring, by false pretences, false representations or other fraud, a girl under 21 to have illicit carnal connexion with any man
The expression 'illicit carnal connexion' means extramarital sexual intercourse.
This section replaced section 1 of the 12 & 13 Vict c 76 (1849) (procuring the defilement of women).
This section was repealed and replaced by section 2(1) of the
Criminal Law Amendment Act 1885The Criminal Law Amendment Act 1885 , or "An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes", was the latest in a 25-year series of legislation in the United Kingdom beginning with the Offences against the Person Act 1861 that...
Carnal knowledge of girls under 12
See
carnal knowledgeCarnal knowledge is an archaic or legal euphemism for sexual intercourse. The term derives from the Biblical usage of the verb know/knew, as in the King James and other versions, a euphemism for sexual conduct...
Section 50 replaced section 17 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
and the corresponding provision in section 3 of the Substitution of Punishments of Death Act 1841 (4 & 5 Vict c 56) and incorporated the non-textual amendment made by section 2 of the Penal Servitude Act 1857.
Sections 50 and 51 were repealed by section 2 of the
Offences against the Person Act 1875The Offences against the Person Act 1875 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
. They were replaced by sections 3 and 4 of that Act (also replaced) which had a broader scope.
Section 52 - Indecent assault upon a female
In England and Wales, this section was repealed and replaced by section 14(1) of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
. In Northern Ireland, repeal of this section was consequential upon the codification of the law relating to sexual offences.
Abduction
Sections 53 to 56 were repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Sections 53 and 54 created various offences of abduction, including:
Forcible abduction of any woman with intent to marry or carnally know her. This would be charged as the common law offences of kidnapping and false imprisonment, or rape, and/or human trafficking under the Sexual Offences Act 2003.
In England and Wales, section 53 was repealed and replaced by sections 17 and 18 of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
.
In England and Wales, section 54 was repealed and replaced by section 17(1) of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
.
In Northern Ireland, repeal of these sections was consequential upon the codification of the law relating to sexual offences.
Section 55 - Abduction of a girl under 16
In England and Wales, this section was repealed and replaced by section 20 of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
. In Northern Ireland, repeal of this section was consequential upon the codification of the law relating to sexual offences.
Child Stealing
Section 56 created the offence of child stealing. In England and Wales, it has been repealed and replaced by the
Child Abduction Act 1984The Child Abduction Act 1984 is an Act of the Parliament of the United Kingdom. It creates offences that replace, in England and Wales, the offence of child stealing under section 56 of the Offences against the Person Act 1861....
.
Bigamy
Section 57 - Bigamy
This section creates the offence of
bigamyIn cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
. It replaces section 22 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
Abortion
Section 58
In
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
,
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and the
Republic of IrelandIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
this section creates the offence of using drugs or instruments to procure abortion. It replaces section 6 of the
Offences against the Person Act 1837The Offences against the Person Act 1837 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
.
Section 59
In
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
,
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and the
Republic of IrelandIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, this section creates an offence of supplying or procuring poison or instruments for the purpose of criminal abortion.
Concealing the birth of a child
Section 60 - Concealing the birth of a child
This section creates the offence of concealing the birth of a child. It replaces section 14 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
Unnatural offences
Section 61 - Buggery
This section abolished the death penalty for
buggeryThe British English term buggery is very close in meaning to the term sodomy, and is often used interchangeably in law and popular speech. It may be, also, a specific common law offence, encompassing both sodomy and bestiality.-In law:...
, and provided instead that a person convicted of buggery was liable to be kept in penal servitude for life or for any term not less than ten years.
This section replaced section 15 of the
Offences against the Person Act 1828The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
In England and Wales section 61 was repealed and replaced by section 12(1) of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
.
Section 62 - attempted buggery - assault with intent to commit buggery - indecent assault upon a male
In England and Wales section 62 was repealed and replaced by sections 15(1) and 16(1) of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
.
In Northern Ireland section 62 was found to be incompatible with the
Convention for the Protection of Human Rights and Fundamental FreedomsThe Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
and was repealed by the
Sexual Offences Act 2003The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
.
Carnal knowledge
Section 63 defined the expression "
carnal knowledgeCarnal knowledge is an archaic or legal euphemism for sexual intercourse. The term derives from the Biblical usage of the verb know/knew, as in the King James and other versions, a euphemism for sexual conduct...
". In England and Wales, this section was repealed and replaced by section 44 of the
Sexual Offences Act 1956The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
.
Other matters
Section 64: This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Section 65: search warrants for weapons, explosives and other articles intended for use in committing offences. This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Sections 66 to 79 dealt with supplemental matters.
Section 68 provides that indictable offences under the Act committed within the jurisdiction of the Admiralty are subject to the punishments to which they would be subject if they had been committed in England. If this provision was not redundant in 1861, it is now.
Section 73: This section was repealed in the Republic of Ireland by section 31 of, and the Schedule to, the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
.
Consequential repeals
The repeal of sections replaced by this Act was effected by the Criminal Statutes Repeal Act 1861 (24 & 25 Vict. c.95)
External links