Offences against the Person Act 1861^[1]

Act of Parliament
Parliament of the United Kingdom
Long title	An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person.
Citation	24 & 25 Vict. c. 100
Territorial extent	England and Wales Ireland
Dates
Royal assent	6 August 1861
Commencement	1 November 1861[2]
Status: Amended
Text of statute as originally enacted
Text of the Offences Against the Person Act 1861 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

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,^[3] 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 1861. 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 1828 (and the equivalent Irish Act), incorporating subsequent statutes.^[4]

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. The act was also adopted in British possessions. For example, New Zealand adopted the act in 1866.

In England and Wales and in Northern Ireland, the sexual offences under the act have all been repealed. For legislation referring to sexual offences, see the Sexual Offences Act 2003 and the Sexual Offences (Northern Ireland) Order 2008. In Northern Ireland, the 1861 Act was the basis for a ban on abortion until 2019 when it was amended by the Northern Ireland (Executive Formation etc) Act 2019.

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 then of great significance. For example, the Fenians were promoting their political case by leaving barrels of explosives in public places.^{[citation needed]} Hence, sections 28 to 30 and 64 specifically address the problem, whether injury results or not. Similarly, children were throwing stones at passing railway trains,^{[citation needed]} and these provisions remain in force.

As originally enacted, the act had 79 sections.

In England and Wales, 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 Ireland.

In the Republic of Ireland, as of 12 December 2023^[update], sections 4, 5, 9, 10, 48, 57, 60 to 63, and 68 remain in force, of which only section 63 is unamended.^[5] Many repeals were under the Non-Fatal Offences Against the Person Act 1997 (a consolidation act) or the Criminal Law Act 1997 (which abolished penal servitude and the felony–misdemeanour distinction).^[5]

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

Sections 1 to 3 – Murder

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.^[6] They were repealed by section 9(1) of, and the second schedule to, the Criminal Justice Act 1990.^[7][8] 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 1828 (9 Geo. 4. c. 31) and section 4 of the corresponding Irish act (10 Geo. 4. c. 34 (Ir)).

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 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

The penalty for offences under this section was increased by article 5(1) of the Criminal Law (Amendment) (Northern Ireland) Order 1977 (SI 1977/1249) but not in relation to offences "committed before the commencement" of that order (art.5(3)).

Soliciting to murder

This section creates the offence of soliciting to murder.

Conspiracy 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 (SI 1983/1120).

Section 5 – Manslaughter

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]

Repeals

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.

"Penal servitude for life"

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.

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^[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.

Sections 9 and 10: Jurisdiction over murder or manslaughter abroad

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 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 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 the Murder Act 1728 (2 Geo. 2. c. 21).

See also section 72 of the Domestic Abuse Act 2021.

Attempts to murder

Sections 11 to 15 dealt with attempts to murder and have been repealed. See now the Criminal Attempts Act 1981.

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 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 wherein 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 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 (SI 1977/1249).

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

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 1997

Section 17 – Impeding a person endeavouring to save himself or another from shipwreck

Shipping was the lifeblood of the Empire, thus, 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.

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.

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. 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.

Garrotting, etc. – Administering chloroform, etc.

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: Poisoningedit