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Offences Against the Person a Scoping Consultation Paper Reform of Offences against the Person A Scoping Consultation Paper Consultation Paper No 217 Law Commission Consultation Paper No 217 REFORM OF OFFENCES AGAINST THE PERSON A Scoping Consultation Paper © Crown copyright 2014 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or e-mail: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at The Law Commission 1st Floor, Tower, Post Point 1.52, 52 Queen Anne's Gate, London SW1H 9AG ISBN: 9780108560774 Printed in the UK for The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID 05111401 11/14 44395 19585 Printed on paper containing 75% recycled fibre content minimum. ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Lloyd Jones, Chairman, Professor Elizabeth Cooke, David Hertzell, Professor David Ormerod QC and Nicholas Paines QC. The Chief Executive is Elaine Lorimer. Topic of this consultation: Offences against the person. This scoping consultation paper addresses: . Whether the Offences Against the Person Act 1861 is in need of updating or replacement . Whether other offences against the person, such as assault and battery, should be included in the scope of any reform . How any reform might affect liability for the transmission of disease Geographical scope: This scoping consultation paper applies to the law of England and Wales. Availability of materials: The scoping consultation paper and a summary are available on our website at http://lawcommission.justice.gov.uk/consultations/offences_against_the_person.htm Duration of the consultation: We invite responses from 12 November 2014 to 11 February 2015. Comments may be sent: By email to [email protected] OR By post to Criminal Law Team, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London SW1H 9AG Tel: 020 3334 3840 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, whenever possible, you could also send them electronically (for example, on CD or by email to the above address, in any commonly used format). After the consultation: In the light of the responses we receive, we will decide on our recommendations for the scope of reform in this area and present them to Government in the form of a scoping report. iii Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission We may publish or disclose information you provide us in response to this consultation, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response in its entirety. We may also be required to disclose the information, such as in accordance with the Freedom of Information Act 2000. If you want information that you provide to be treated as confidential please contact us first, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the Data Protection Act 1998. iv THE LAW COMMISSION REFORM OF OFFENCES AGAINST THE PERSON A SCOPING CONSULTATION PAPER CONTENTS Paragraph Page CHAPTER 1: INTRODUCTION 1 The project 1.1 1 Background 1.3 1 The purpose of this paper 1.8 2 The scheme of this paper 1.13 3 Acknowledgments 1.14 3 CHAPTER 2: EXISTING LAW 5 Assault and battery 2.5 6 Common law or statute? 2.6 6 One offence or two? 2.8 7 External elements 2.12 8 Consent 2.20 10 Mental element 2.22 11 Mode of trial 2.29 12 Charging standards 2.32 13 Sentencing 2.36 14 Statistics 2.40 15 Further discussion 2.46 16 Assault occasioning actual bodily harm 2.47 16 Statutory definition 2.47 16 External elements 2.49 16 Mental element 2.61 20 Mode of trial 2.64 21 Charging standard 2.66 21 v Paragraph Page Sentencing 2.69 22 Statistics 2.172 22 Further discussion 2.76 23 Malicious wounding or infliction of grievous bodily harm 2.77 23 Statutory definition 2.77 23 External elements 2.78 24 Mental element 2.92 26 Mode of trial 2.102 29 Charging standard 2.103 29 Alternative verdicts 2.105 29 Sentencing 2.107 30 Statistics 2.111 30 Further discussion 2.115 31 Wounding and causing grievous bodily harm with intent 2.116 31 Statutory definition 2.116 31 External elements 2.118 31 Mental element 2.124 33 Mode of trial and sentencing 2.129 33 Charging standard 2.132 34 Statistics 2.133 34 Further discussion 2.138 35 Particular assaults 2.139 35 External elements 2.141 36 Mental element 2.142 36 Statistics 2.145 37 Racially or religiously aggravated crimes of violence 2.150 37 Further discussion 2.158 39 Threats to kill 2.159 39 External elements 2.160 40 Mental element 2.162 40 Defences 2.163 40 Mode of trial 2.164 41 Charging 2.165 41 vi Paragraph Page Sentencing 2.166 41 Statistics 2.167 41 Further discussion 2.170 42 Solicitation to murder 2.171 42 External elements 2.172 42 Mental element 2.176 43 Jurisdiction 2.181 44 Mode of trial 2.183 44 Sentencing 2.184 44 Statistics 2.185 45 Further discussion 2.188 45 Poisoning offences 2.189 45 The different offences 2.189 45 External elements 2.190 46 Mental element: intention, recklessness, ulterior 2.197 47 intention Mode of trial 2.202 48 Included offence 2.203 48 Sentencing 2.204 48 Statistics 2.206 49 Further discussion 2.210 49 Explosives and dangerous substances 2.211 49 The different offences 2.211 49 External elements 2.214 51 Mental element 2.218 51 Relationship to other offences involving bodily harm 2.222 52 Mode of trial and sentencing 2.224 52 Statistics 2.227 53 Further discussion 2.230 53 Other offences 2.231 53 Bigamy, attempted abortion and concealing birth 2.231 53 Railway offences 2.232 54 Remaining offences 2.234 54 vii Paragraph Page CHAPTER 3: PROBLEMS IN THE EXISTING LAW 62 (1) Incoherence of offence classification 3.4 62 Incoherent division by subject matter 3.5 63 Incoherent division by seriousness 3.16 67 (2) Problems of definition within particular offences 3.28 69 (a) Meaning of intent 3.29 70 (b) The role of recklessness within the offences 3.31 70 (c) What must D intend or foresee? 3.34 71 (d) Endangerment offences 3.60 76 (3) Language 3.69 78 Bodily 3.70 78 Grievous 3.72 78 Detainer 3.77 79 (4) Redundancy and obscurity in drafting 3.79 79 Terms requiring judicial interpretation 3.80 80 Apparently redundant terms 3.85 80 Use of nearly synonymous terms 3.86 81 (5) Obsolete legal references 3.92 82 Sentencing provisions 3.93 82 CHAPTER 4: PREVIOUS ATTEMPTS AT REFORM 84 Introduction 4.1 84 Background 4.9 86 Criminal Law Revision Committee 4.10 86 Previous Law Commission proposals 4.13 87 1985 Codification Report 4.13 87 1989 draft Code 4.15 88 1992 Consultation Paper 4.17 88 1993 Report 4.18 89 Home Office CP and draft Bill 4.19 89 CHAPTER 5: POSSIBLE APPROACHES TO REFORM 93 General principles 5.1 93 viii Paragraph Page Structure of this chapter 5.3 94 Meaning of injury 5.8 95 Summary of problems with the present law 5.8 95 The 1998 draft Bill 5.11 96 Discussion 5.15 96 Mental element of offences 5.19 97 Summary of problems with the present law 5.19 97 The 1998 draft Bill 5.25 98 Discussion 5.26 99 Assault and battery 5.33 101 Summary of problems with the present law 5.33 101 The 1998 draft Bill 5.37 101 Discussion 5.38 102 Offences of causing harm 5.51 105 Summary of problems with the present law 5.51 105 The 1998 draft Bill 5.64 107 Discussion 5.66 109 Particular assaults 5.123 120 Summary of problems with the present law 5.123 120 The 1998 draft Bill 5.127 121 Discussion 5.128 123 Racially and religiously aggravated offences 5.140 125 Domestic violence 5.144 125 Solicitation to murder and threats to kill 5.154 127 Summary of problems with the present law 5.154 127 The 1998 draft Bill 5.157 128 Discussion 5.159 128 Poisoning 5.175 132 Summary of problems with the present law 5.175 132 The 1998 draft Bill 5.180 133 Discussion 5.183 134 Explosives and dangerous substances 5.188 135 Summary of problems with the present law 5.188 135 ix Paragraph Page The 1998 draft Bill 5.192 135 Discussion 5.193 136 Other offences 5.196 136 Alternative verdicts 5.199 137 Present law 5.199 137 The 1998 draft Bill 5.204 139 Discussion 5.206 140 CHAPTER 6: TRANSMISSION OF DISEASE 142 General principles 6.1 142 Background 6.8 143 Present law 6.11 145 Crown Prosecution Service legal guidance 6.17 147 Other procedures 6.19 148 Unresolved legal issues 6.21 149 Problems and policy issues 6.36 152 Knowledge or suspicion 6.36 152 Proof of transmission 6.40 154 State of medical knowledge 6.43 154 Effect on public health 6.46 156 International comparisons 6.52 158 The 1998 draft Bill 6.59 160 Further options for reform 6.65 162 Scheme of the draft Bill 6.66 162 Modifying the draft Bill to take account of the present 6.70 163 law Other schemes 6.100 169 CHAPTER 5: CONSULTATION QUESTIONS 142 Problems in 1861 Act 1 172 Reform: general principles 12 173 Assault and battery 17 173 Offences of causing injury 19 174 x Paragraph Page Particular assaults 23 174 Other offences under the 1861 Act 28 175 Alternative verdicts 32 175 Transmission of disease 33 175 xi xii CHAPTER 1 INTRODUCTION THE PROJECT 1.1 In this scoping paper we discuss and invite views on whether the law governing offences against the person should be considered for reform.
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