Offences Against the Person Act 1861

Sections 1 to 3 dealt with the death penalty for murder and have been repealed.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sections were changed to references to capital murder by section 15 of the Criminal Justice Act 1964.[5] They were repealed by section 9(1) of, and the second schedule to, the Criminal Justice Act 1990.[6][7] But the repeal of section 1 did not affect the operation of sections 64 to 68.(s.9(2))

This section replaced the corresponding provision in section 3 of the Offences against the Person Act 1828 (9 Geo 4 c 31) and section 4 of the corresponding Irish Act (10 Geo 4 c 34).

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 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).

The penalty for offences under this section was increased by article 5(1) of the Criminal Law (Amendment) (Northern Ireland) Order 1977,[8] but not in relation to offences "committed before the commencement" of that order (art.5(3)).

This section creates the offence of soliciting to murder.

This section creates the offence of conspiracy to murder in the Republic of Ireland.

The repeal of as much of this section as related to the offence of conspiracy to murder for England and Wales 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.

The repeal of as much of this section as related to the offence of conspiracy to murder for Northern Ireland was consequential on the codification of conspiracy by Part IV of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)).

This section now provides that a person convicted of manslaughter in English law is liable to imprisonment for life or for any shorter term.

In England and Wales it now reads:

Whosoever shall be convicted of manslaughter shall be liable, at the discretion of the court, to be kept in penal servitude for life ...[9]

The words "or to pay" to the end were repealed by Part I of Tenth Schedule to the Criminal Justice Act 1948. The other words were repealed by the Statute Law Revision Act 1892.

This means imprisonment for life: See section 1(2) of the Criminal Justice Act 1948 and section 1(2) of the Criminal Justice Act (Northern Ireland) 1953 and section 11(2) of the Criminal Law Act 1997.

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[10] for the Republic of Ireland on 22 August 1924.[11]

Section 7 replaced section 10 of the Offences Against the Person Act 1828.

Section 8 replaced section 2 of the Offences Against the Person Act 1828.

Section 9 gives the courts in England, Wales and Ireland extra-territorial jurisdiction over homicides committed by British subjects overseas. At the time of passing this was a more expansive definition, including the Dominions, but was restricted to just British subjects linked to the United Kingdom and its colonies by 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.)

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 Ireland in the same manner as such person might have been tried before the passing of this Act. 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. Section 10 was first enacted in 1728/29 by 2 Geo 2 c 21.

See also section 72 of the Domestic Abuse Act 2021.

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 1837.

Charges under this section are, under CPS guidance, reserved for crimes with very high intent which cause serious (potentially life-threatening harm) or showed malicious intent and caused really serious life-threatening or life-altering harm. The former 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.

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.

This section creates the offences of wounding and inflicting grievous bodily harm. The CPS guidance prefers this section to be used instead of section 18 when the harm done was more consequential rather than intentional, and/or the wounding was less serious. These are therefore 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 1851 (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.

Sections 21 and 22: Attempting to choke, &c., 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.

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).

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, &c.) 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.

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 (assuming that such a person can unlawfully abandon or expose a child), and also by a person who is under sixteen.

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.

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).

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 passengers under section 6 of the Prevention of Offences Act 1851; the other offence being consolidated elsewhere.

Section 33 replaced section 7 of that Act.

In England and Wales and Northern Ireland this section creates the offence of causing bodily harm by wanton or furious driving. It is repealed in the Republic of Ireland.

In England and Wales and Northern Ireland, this section reads:

Whosoever shall, by threats or force, obstruct or prevent or endeavour to obstruct or prevent, any clergyman or other minister in or from celebrating divine service or otherwise officiating in any church, chapel, meeting house, or other place of divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place, or shall strike or offer any violence to, or shall, upon any civil process, or under the pretence of executing any civil process, arrest any clergyman or other minister who is engaged in, or to the knowledge of the offender is about to engage in, any of the rites or duties in this section aforesaid, or who to the knowledge of the offender shall be going to perform the same or returning from the performance thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, . . .[14]

Repeals

The words omitted at the end were repealed by section 1(2) of the Criminal Justice Act 1948 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 1997.

"Divine service"

See Matthews v King [1934] 1 KB 505, 50 TLR 62, 30 Cox 27

"Misdemeanor"

See the Criminal Law Act 1967 and the Criminal Law Act (Northern Ireland) 1967.

Proposal for repeal

In 1985, the Law Commission said that this offence was no longer used and recommended that it be repealed.[15]

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 1997.

The marginal note to this section reads "Assault with intent to commit felony, or on peace officers, &c." It is unreliable.[16]

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 arrest 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 1964. 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.

Immediately before its repeal, in England and Wales, this section read:

Whosoever shall beat, or use any violence [or threat of violence] to any person, with intent to deter or hinder him from buying, selling, [or otherwise disposing of, or to compel him to buy, sell, or otherwise dispose of,] any wheat or other grain, flour, meal, malt, or potatoes, in any market or other place, or shall beat or use any such violence [or threat] to any person having the care or charge of any wheat or other grain, flour, meal, malt, or potatoes, whilst on the way to or from any city, market town, or other place, with intent to stop the conveyance of the same, shall on conviction thereof before two justices of the peace be liable to be imprisoned . . . in the common gaol or house of correction for any term not exceeding three months: Provided, that no person who shall be punished for any such offence by virtue of this section shall be punished for the same offence by virtue of any other law whatsoever.[17]

Repeals

The words "and kept to hard labour" were repealed for England and Wales by section 1(2) of the Criminal Justice Act 1948 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 1997.

Derivation

This section was derived from the corresponding provision in section 26 of the Offences against the Person Act 1828, 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 from those in section 26 of the Offences against the Person Act 1828.[18]

This offence was previously created by the Corn Trade Act 1737.[19]

Mode of trial

This offence could be tried at quarter sessions.[18]

Proposals for repeal

In 1980, the Criminal Law Revision Committee recommended that sections 39 and 40 be repealed.[20]

In a joint report dated 7 April 1989, the Law Commission and the Scottish Law Commission said that, between them, the offences of common assault, battery and affray, 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 Office agreed that sections 39 and 40 served no further useful purpose. They recommended that both sections be repealed.[21]

Immediately before its repeal, in England and Wales, this section read:

Whosoever shall unlawfully and with force hinder or prevent any seaman, keelman, or caster from working at or exercising his lawful trade, business, or occupation, or shall beat or use any violence to any such person with intent to hinder or prevent him from working at or exercising the same, shall on conviction thereof before two justices of the peace be liable to be imprisoned…in the common gaol or house of correction for any term not exceeding three months: Provided, that no person who shall be punished for any such offence by reason of this section shall be punished for the same offence by virtue of any other law whatsoever.[22]

Repeals

Words replaced with "…" were repealed in England and Wales by s. 1(2) of the Criminal Justice Act 1948 and in Northern Ireland by the same section of the Criminal Justice Act (Northern Ireland) 1953.

The section was repealed in the first jurisdiction by section 1(1) (enacting Group 5 of Part I of Schedule 1) to the Statute Law (Repeals) Act 1989. It has not been replaced.

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 1997.

Derivation

This section lately replaced the essentially identical section 26 of the Offences against the Person Act 1828.[18][21] This in turn replaced section 2 of the Shipping Offences Act 1793.[19]

Appeal

The 20 & 21 Vict c 43 said 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.[23]

Proposals for repeal

As to the recommendations of the Criminal Law Revision Committee, Law Commission, and Scottish Law Commission, see the preceding section's summary above.

The repeal of this section was consequential on the decriminalisation of trade unions. See the Criminal Law Amendment Act 1871 and the Trade Union Act 1871.

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 1977, 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) 1953, 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 1997.

This section replaces section 1 of the Criminal Procedure Act 1853 (16 & 17 Vict c 30) (aggravated assaults upon women and children)

In England and Wales, this section has been repealed and has not been replaced. The Criminal Law Act 1977, 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 1997.

In Queen's Printer copies of this Act, the marginal notes to this section read "assault occasioning bodily harm" and "common assault".

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 1997.

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 1997.

Common assault

In England and Wales, the provision in this section relating to common assault has been repealed.

This is an either way offence. In Northern Ireland, it is written that a person who is convicted on indictment (before a Crown Court thus for more serious instances) of common assault is liable to imprisonment for a term not exceeding two years. This amounts to a doubling (of the maximum) by article 4(2)(b) of the Criminal Justice (No.2) (Northern Ireland) Order 2004.

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.

It was a revised version of section 16 of the Offences against the Person Act 1828, 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 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.

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 1885

Section 50 replaced section 17 of the Offences against the Person Act 1828 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 1875. They were replaced by sections 3 and 4 of that Act (also replaced) which had a broader scope.

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.

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 1997.

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.

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.

Contemporary effect: under sections 58 and 59 any act to procure abortion and anything done with intent to procure a woman's miscarriage (loss of her foetus or foeti) is unlawfully done unless authorised by section 1 of the Abortion Act 1967. An additional authority is given to the woman carrying foeti where a particular such pregnant woman is clinically shown to be likely to suffer severe detriment to herself or any of her foeti when born: subsection (1)(d).[26]

See the Criminal Law Act 1967.

The offences under section 58 and 59 are indictable-only offences.

An offence under section 58 is punishable with imprisonment for life or for any shorter term.[27]

An offence under section 59 is punishable with imprisonment for a term not exceeding five years.[28]

Sections 58 and 59 continue to apply in England and Wales. They were repealed as to the Republic of Ireland by section 5 of the Protection of Life During Pregnancy Act 2013, and in Northern Ireland by the Northern Ireland (Executive Formation etc) Act 2019.