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| Offences Against the Person Act 1861 | |
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| Parliament of the United Kingdom | |
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| Long title: | An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person. |
| Statute book chapter: | 24 & 25 Vict. c.100 |
| Territorial extent: | England and Wales, Northern Ireland, Republic of Ireland |
| Dates | |
| Date of Royal Assent: | 6 August 1861 |
| Status: Substantially amended | |
| Official text of the statute as amended and in force today within the United Kingdom, from the UK Statute Law Database | |
The Offences Against the Person Act 1861 (24 & 25 Vict. c.100) is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. 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,1 incorporated with little or no variation in their phraseology. It was one of six criminal law consolidation Acts passed in 1861 with the object of simplifying the law.
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 Wales. Different subsets of its provisions remain in force in Northern Ireland and in the Republic of Ireland.
In England and Wales, and in Northern Ireland, the sexual offences under this Act have all been repealed.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 2003 and the Sexual Offences (Northern Ireland) Order 2008.
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 Fenians 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.
The majority of the original provisions contained in the Act have now been replaced.
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.
Homicide
Murder
Sections 1 to 3 dealt with the death penalty for murder and have been repealed.
Section 3 provided that the body of every person executed for murder was to be buried within the precints 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 1832 (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
Soliciting to murder
This section creates the offence of soliciting murder.
Conspiracy to murder
The repeal of the offence of conspiracy to murder was consequential on the codification of conspiracy by Part I of the Criminal Law Act 1977. The effect of this section, in relation to conspiracy to commit murder abroad, was preserved by section 1(4) of that Act.
Section 5 - Manslaughter
This section sets the maximum sentence for manslaughter as life imprisonment.
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).
Section 7 replaced section 10 of the Offences Against the Person Act 1828 (9 Geo.4 c.31).
Section 8 replaced section 2 of the Offences Against the Person Act 1828.
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.)
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- "9. Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, ... may be dealt with, inquired of, tried, determined, and punished ... in England or Ireland; Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Irelandin the same manner as such person might have been tried before the passing of this Act."
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- "10. Where any person being [criminally] stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England or Ireland, shall die of such stroke, poisoning, or hurt in England or Ireland, or, being [criminally] stricken, poisoned, or otherwise hurt in any place in England or Ireland, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England or Ireland, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, may be tried ... in England."
Sections 9 and 10 respectively replace sections 7 and 8 of the Offences Against the Person Act 1828.
Attempts to murder
Sections 11 to 15 dealt with attempts to murder and have been repealed. See now the Criminal Attempts Act 1981 (c.47).
Section 11: Administering poison or wounding or causing greivous bodily harm with intent to murder
This section replaced section 2 of the Offences Against the Person Act 1837 (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 1837.
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 2003.
Other threats of violence may be prosecuted summarily under section 4 of the Public Order Act 1986.
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 Act 10 & 11 Vict. c.66 (1847); the other offences under that section being consolidated elsewhere.
In the Republic of Ireland, this section has been repealed and replaced by section 5 of the Non-Fatal Offences Against the Person Act 1997.
Bodily harm
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 harm.
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.
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- "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 1837.
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 greivous 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.
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- "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 1851(14 & 15 Vict. c.19)
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 following the use of hypnotic drugs such as Flunitrazepam show that little has changed save that where the intended offence is of a sexual nature, separate legislation applies (see Sexual Offences Act 2003).
Section 22 replaces section 3 of the Prevention of Offences Act 1851
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 Act 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 1875 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 1933. 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.
Explosives, etc.
Sections 28, 29, 30, and 64 created a range of criminal offences supplementing the Explosive Substances Act 1883 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 2000 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 greivous 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 Act 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 greivous 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 1851; the other offence being consolidated elsewhere.
Section 33 replaced section 7 of that Act.
Section 35 - Wanton and furious driving
In practice this has largely been superseded by the offence of dangerous driving under the Road Traffic Act 1988.
Assaults
Section 36 - Assaulting or obstructing a clergyman in the execution of his duties
Specific protection for clergymen carrying out their public duties.
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.
Section 38
Assault with intent to resist arrest
This section creates the offence of assault with intent to resist arrest and provides the penalty to which a person is liable on conviction of that offence on indictment.
Assaulting a peace officer in the execution of his duty
This offence was repealed and replaced by section 51 of the Police Act 1964 (c.48). An assault on a constable in the execution of his duty can now be prosecuted summarily under section 89(1) of the Police Act 1996.
Assault with intent to commit felony
The repeal of this offence was consequential on the abolition of the distinction between felony and misdemeanour.
Section 39
This section been repealed in England and Wales and has not been replaced. The trade in grain and other staples is no longer considered to require specific protection.
Section 40
This section been repealed in England and Wales and has not been replaced. It is no longer considered necessary to have a specific offence to protect seamen while carrying out their duties.
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 1871 and the Trade Union Act 1871.
Section 42 - Common assault and battery
In England and Wales, this section has been repealed and replaced by section 39 of the Criminal Justice Act 1988.
Section 43 - Aggravated assault and battery
This section replaces section 1 of the Act 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.
In Northern Ireland, this section makes provision for the summary prosecution of aggravated assaults on women and children.
Section 47
Assault occaisioning 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 repealed and replaced by section 3 of the Non-Fatal Offences Against the Person Act 1997.
Common assault
In Northern Ireland, this section provides that a person who is convicted on indictment of common assault 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 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.
This section replaced the corresponding provision in section 3 of the Substitution of Punishments of Death Act 1841 (4 & 5 Vict. c.56).
In England and Wales, this section was repealed and replaced by section 1(1) of the Sexual Offences Act 1956. 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 extra-marital sexual intercourse.
This section replaces section 1 of the Act 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 1885
Sexual intercourse with girls under 12
Section 50 replaced the corresponding provision in section 3 of the Substitution of Punishments of Death Act 1841 (4 & 5 Vict. c.56).
Sections 50 and 51 were repealed by section 2 of the Offences Against the Person Act 1875. 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 1956. In Northern Ireland, repeal of this section was consequential upon the codification of the law relating to sexual offences.
Abduction
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 1956. In England and Wales, section 54 was repealed and replaced by section 17(1) of the Sexual Offences Act 1956. 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 1956. 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 1984 (c.37).
Bigamy
Section 57 - Bigamy
This section creates the offence of bigamy. It replaces section 22 of the Offences Against the Person Act 1828.
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- "Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years; Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction."
Abortion
Section 58
Abortion by unlawfully administering any poison or noxious thing is an offence (see also the Infant Life (Preservation) Act 1929), but section 1(1) of the Abortion Act 1967 permits a medical termination of a pregnancy under certain circumstances in England and Wales.
The section replaces section 6 of the Offences Against the Person Act 1837.
Section 59
This section prohibits 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 1828.
Unnatural offences
Section 61 - Buggery
This section abolished the death penalty for buggery, 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 1828.
In England and Wales, section 61 was repealed and replaced by section 12(1) of the Sexual Offences Act 1956.
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 1956.
Carnal knowledge
Section 63 defined the expression "carnal knowledge". In England and Wales, this section was repealed and replaced by section 44 of the Sexual Offences Act 1956.
Other matters
Section 65: search warrants for weapons, explosives and other articles intended for use in committing offences.
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.2
Consequential repeals
The repeal of sections replaced by this Act was effected by the Criminal Statutes Repeal Act 1861 (24 & 25 Vict. c.95)
References
External links
Official text of the Offences Against the Person Act 1861 as amended and in force today within the United Kingdom, from the UK Statute Law Database
- David Swarbrick: Offences against the Person Act 1861 partial text of the original act
- Circumcision Reference Library: Offences against the Person Act 1861 amended text as at 18 April 2006; with notes as to which Acts repealed the sections no longer in force
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