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Rationality and the Rule of Law in Offences Against the Person

  • John Gardner (a1)
Abstract

The Offences Against the Person Act 1861 is much disparaged by today's criminal lawyers. Its provisions have been described as “impenetrable” by the Court of Appeal. The House of Lords could not conceal its dissatisfaction with what is called “the irrational result of this piecemeal legislation”. Andrew Ashworth has written of the “antiquated and illogical structure” of an Act which the Law Commission regards as “unsatisfactory in very many respects”. Most recently Brooke J., launching the latest version of the Commission's reform package, lambasted the operation of the 1861 Act as “a disgrace”, and claimed that this hostile view is shared in every corner of the criminal justice system.

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1 R. v. Parmenter [1992] 1 A.C. 699 at 712 per Mustill L.J.

2 R. v. Savage, R.v. Parmenter [1992] 1 A.C. 699 at 752 per Lord Ackner.

3 Principles of Criminal Law (Oxford 1991), p. 281.

4 Legislating the Criminal Code: Offences Against me Person and General Principles (Law Commission Consultation Paper no. 122, London 1992), para 7.8; hereafter LCCP 122.

5 “Call for new law on assault”, The Guardian, 17 November 1993. The occasion was the publication of Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com. no. 218, London 1993), hereafter LC 218.

6 LCCP 122, para. 7.4.

7 LCCP 122, para. 7.40.

8 R.v. Wilson [1984] A.C. 242 at pp. 259–260.

9 LC 218, para. 13.5.

10 Section 10 of the Commission's draft Bill, LC 218, at p. 94, a wider version of an offence already in force under section 134 of the Criminal Justice Act 1988. The demands of the torture scenario make it clear that the law relating to “infliction” as stated in Wilson needs to be modified slightly to accommodate the possibility of psychological violence. Since section 20 is concerned with bodily harm only, that possibility passed the court by.

11 On the element of violence in wounding, see R.v. Beckett (1836) 1 Mood & R. 526; R.v. Spooner (1853) 6 Cox CC 392.

12 There is no associated reason, however, to withdraw the protection of novus actus interveniens, which, being a doctrine concerning the effects on liability of the unexpected, cannot by its nature be manipulated. This explains why I rejected “intended consequences are never too remote” as an exaggerated maxim. But see pages 509–510 below for a situation, involving unintended consequences, in which even the doctrine of novus actus inierveniens arguably falls to be modified.

13 The draftsman of the 1861 Act explains his use of the expression “by any means whatsoever” differently. It was needed, he says, to bring section 18 into line with the law of attempted murder as consolidated elsewhere in the 1861 Act: Greaves C.S., The Criminal Law Consolidation and Amendment Acts (2nd ed., London 1862), at p. 52. But that does not detract from my point, since the reason I give for this expression's presence in section 18 is also the reason for its presence in the old statutory provisions on attempted murder which the draftsman of the 1861 Act was consolidating.

14 The point about sections 1 and 17 of the Theft Act 1968 only stands since the maximum penalty for theft was reduced by the Criminal Justice Act 1991. Before that change, the same point could have been made concerning sections 1 and 15 of the Act (theft and obtaining by deception).

15 See, for example, R.v. George [1956] Crim. L.R. 52, or Faulkner v. Talbot [1981] 1 W.L.R. 1528.

16 But compare D.P.P.v. K. [1990] 1 W.L.R. 1067, in which an analogous mischief (leaving a dangerous chemical in a hot air drier where it might blow out onto someone's skin) was misconstrued as an assault for the purposes of a section 47 charge. The case does illustrate the need for some new endangerment offences to be devised roughly along the lines of the railway offences in sections 32–34 of the 1861 Act.

17 A perennial favourite is the offence of causing death by dangerous driving (previously by reckless driving), now found in the Road Traffic Act 1988, s. 1.

18 18 Ashworth, Principles of Criminal Law, note 3 above, pp. 129–130. Notice that, although liability under sections 18 and 20 is not constructive, these provisions also violate Ashworth's principle in a small way by virtue of the doctrine in R.v. Mowatt [1968] 1 Q.B. 421 that one may be convicted of a section 18 or 20 offence without foreseeing the grievous bodily harm one did, so long as one foresaw some harm.

19 R.v. Tolson [1886–90] All E.R. Rep. 26. Cf. Williams Glanville, Textbook of the Criminal Law (2nd ed., London 1983), who misinterprets Tolson as authority for the correspondence principle, and so regards it as militating against a constructive interpretation of section 47.

20 R.v. Savage, R.v. Parmenter [1992] 1 A.C. 699.

21 But compare R.v. Roberts (1971) 56 Cr. App. Rep. 95, in which the distinction is neglected.

22 It is a relief to see that the Commission does not fall into the trap of mistaking rape for a crime of violence, as it does with assault. Some suppose that we would appreciate what is wrong with rape more if we stopped seeing it as a “sexual offence” and started seeing it as a straightforward crime of violence. But it strikes me that the reverse is true. It is precisely the tenacity of the courts in perpetuating the old idea that rape is a crime of violence that has done more than anything else to blunt public appreciation of the rapes which take place under cover of manipulative and exploitative relationships. Rape is a crime of sexual invasion, not a crime of violence. To focus on the use of violence is to detract from the centrality of the invasion.

23 LC 218, para. 12.9.

24 LC 218, para. 12.11.

25 LC 218 para. 12.6 bemoans the 1861 Act's “complete unintelligibility to the layman”. Meanwhile, LCCP 122 para. 7.11 refers us back, for supporting argument, to the earlier report A Criminal Code for England and Wales (Law Com. no. 177, London 1989), paras. 2.2–2.7, in which much is made of “the idea that the law should be known in advance to those accused of violating it”.

26 Raz Joseph, The Morality of Freedom (Oxford 1986), pp. 420421.

27 At this point I should mention my debt to Horder Jeremy, a draft of whose paper “Rethinking Non-Fatal Offences Against the Person” (1994) 14 Oxford Journal of Legal Studies 335, first alerted me to the need to defend the fine-grained differentiations of the 1861 Act. My defence is on a different basis from Horder's, which stresses the importance of fair labelling rather than clear guidance. The two defences, however, are for the most part complementary.

28 Of course, there may be an interaction between intrinsic and instrumental differentiations, since what actions express or convey may give them further consequences. That rape expresses a view of women as less than human, for example, explains why rape is a particularly humiliating mode of violation. But in order to understand where rape gets its particular wrongness, one should not leap straight to the humiliation. Even if it is missing because, e.g., the victim was drugged and never learns of the violation, or has been rendered insensitive to her own humanity by persistently brutal treatment, there still remains the baseness of expressing the base attitude that the violation expresses, independently of any consequence which that expression may have for the victim herself or for others. I am grateful to Andrew von Hirsch for reminding me to stress this point.

29 I am not denying that the public meaning of some actions may itself have some sensitivity to the intentions or perceptions of the particular people involved. Although this is not true of discrimination, it is true of, e.g., acts of deception and betrayal as well as some physical violations and acts of violence. It is this sensitivity which explains the importance of many metis rea distinctions in the criminal law, including the distinction between the mens rea of section 20 and that of section 18.

30 Pace Diplock L.J. in R.v. Mowatt [1968] 1 Q.B. 421 at 426.

31 D.P.P.v. Smith [1961] A.C. 290.

32 Although it must be more than de minimis: R.v. Jones [1981] Crim. L.R. 119.

33 I think back to Alan Bleasdale's successful television serial GBH. Can one imagine a drama called, in the words of the Law Commission proposals, Serious Injury? It is not a trivial question. One should not underestimate the role of drama (including soap operas, sitcoms etc.) in supporting and reflecting public appreciation of the law in a complex and alienating modern society.

34 See R.v. Gomez [1993] A.C. 442 for a competent and insightful discussion of “appropriation” without resort to, or hope of, a comprehensive definition. The discussion of “intention” in R v. Moloney [1985] A.C. 905, although in some respects less competent, correctly concludes that the grey area at the margins of “intention” cannot be excised by sharper definition except at the price of excessive technicality.

35 C (a minor) v. Eisenhower [1984] Q.B. 331.

36 This adds a new dimension to Raz's remark in The Authority of Law (Oxford 1979), at p. 222, that “complete conformity [to the rule of law] is impossible”. It is impossible not only because, as Raz points out, “some vagueness is inescapable” but also because the “vagueness” of law may take different forms, and the elimination of one form, pursued to extremes, may be the triumph of another. The rule of law conflicts, not only with other important moral principles, but also with itself.

37 Report on the Mental Element in Crime (Law Com. no. 89, London 1978), para. 86; Codification of the Criminal Law (Law Com. no. 143, London 1985), paras 8.29–8.33; A Criminal Code for England and Wales, note 25 above, para. 8.27.

38 Report on the Mental Element in Crime, para. 59; Codification of the Criminal Law, para. 8.20; A Criminal Code for England and Wales, paras 8.19–8.20; LCCP 122, para. 7.22. This explains the Commission's insistence that offence seriousness should vary, not simply according to the type of injury caused, but “according to the type of injury that [the defendant] intended or was aware that he might cause”.

39 C.S. Greaves, The Criminal Law Consolidation and Amendment Acts, note 13 above, xxxvii. This consideration did not make Greaves himself an enthusiast for action–specificity. Indeed he regretted the action–specificity of the 1861 Act, and did his best, he tells us, to circumvent it by sneaking in catch–all provisions where possible. But he is more candid than the Law Commission, I think, in explaining why. It had nothing to do with rationality or the rule of law. It was simply that such definitions collectively leave holes in the law which “afford the artful a chance of evading punishment”.

40 Andrew Simester has pointed out to me another important and complementary factor that may sometimes further strengthen this defence of constructive liability. It is that the basic offence, onto which the constructive liability is grafted, is itself partly justified by the fact that it helps to prevent the very harms, the occurrence of which activates the constructive liability. This is arguably true of a section 47 offence, and certainly true of the offence under section 1 of the Road Traffic Act 1988.

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  • ISSN: 0008-1973
  • EISSN: 1469-2139
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