When I use a word . . . Medicines regulation—pharmacological offences against the person

Offence

It may not look like it, but the word “offence” can be traced back to its origins in a hypothetical IndoEuropean root that looks unpromising—G^WHEN, in older texts spelt GUHEN—which meant to strike, wound, or kill.

The most obvious English word to have descended from this unusual hypothesised root is “gun,” and even that is not straightforward. Its immediate precursor was supposedly the Old Norse word gunn-r, meaning war or strife, from a suffixed form of G^WHEN. However, evidence cited by the Oxford English Dictionary (OED) suggests that “gun” may have been a shortened form of the Old Norse woman’s name Gunnhild-r,1 since female names were often given to engines of war, such as a cannon mentioned in a 14th century munitions inventory of Windsor Castle, with the name of “Domina Gunilda.” This is a habit on which I make no comment, merely recalling, as I do, the name of the fearsome 15th century cannon that sits on the ramparts of Edinburgh Castle, Mons Meg, and the somewhat smaller howitzer used by German troops during the first world war, Big Bertha, named after Bertha Krupp. Hild-r, incidentally, also meant war or battle, so anyone called Gunnhild-r must have been terrifying. Perhaps that’s why John Mortimer christened Horace Rumpole’s fictional wife, also known as “She Who Must Be Obeyed,” Hilda.

In Greek G^WHEN gave another word related to strife, φονός, which meant murder or slaughter, and hence the red blood associated with it. This seems not to have yielded any English descendants, but I wonder if the word “phoenix” is somehow related to it. It comes directly from the Greek word for the mythical bird, φοῖνιξ, because, according to Herodotus, in The Persian Wars (Book II: Euterpe), its plumage was partly red and partly golden (τὰ μὲν αὐτοῦ χρυσόκομα τῶν πτερῶν, τὰ δὲ ἐρυθρὰ ἐς τὰ μάλιστα). The word φοῖνιξ meant purple or blood red, because the Phoenicians were thought to have discovered and first used the colour. In the Iliad, when Homer describes how the archer Pandarus, fighting with the Trojans, wounds Menelaus, he likens the colour of the blood that flows to a piece of ivory stained red, φοίνικι μιήνῃ. Later he uses the word to describe a bright red belt: ζωστῆρα φοίνικι φαεινόν.

In Latin G^WHEN gave the hypothetical verb fendere, which presumably would have meant to strive, and from which other verbs emerged, by the addition of suffixes: defendere and offendere give us defend and offend; infensare, to be hostile towards, has no English derivatives; and forfend, as in Heaven forfend, is a hybrid, formed by combining “fend” with the Old English prefix “for-”, which was usually appended to adjectives to create superlative forms. In other words, “forfend,” to prohibit, literally means to strive mightily.

Offences against the person

So offences cause strife, and in the 19th century the UK government sought to mitigate that strife by introducing a range of forms of legislation dealing with offences of varying sorts, including the 1861 Offences Against the Person Act.2 That act gave coherence to various earlier acts and statutes, combining them into a single act. The history of the act was recounted by one of those who had been responsible for drafting it, Charles Sprengel Greaves.3

In 1828, during the reign of George IV, an act relating to offences against the person in England was passed. In the following year another act was passed, embodying the principles of the 1828 act and extending them to Ireland. Other amendments and related statutes were later added.

Then, in 1861, seven individual acts were brought together in a collection known as The Criminal Law Consolidation Acts 1861 (24 and 25 Vict. mL. 94–100).4 All of them were promulgated during the 24th and 25th years of Victoria’s reign, and they were:

● 94. An Act to consolidate and amend the Statute Law of England and Ireland relating to Accessories to and Abettors of indictable Offences.

● 95. An Act to repeal certain Enactments which have been consolidated in several Acts of the present Session relating to indictable Offences and other Matters.

● 96. An Act to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar Offences.

● 97. An Act to consolidate and amend the Statute Law of England and Ireland relating to Malicious Injuries to Property.

● 98. An Act to consolidate and amend the Statute Law of England and Ireland relating to indictable Offences by Forgery.

● 99. An Act to consolidate and amend the Statute Law of the United Kingdom against Offences relating to the Coin.

● 100. An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person.

The last of these, the 1861 Offences Against the Person Act, was numbered Chapter 100 in the series.

After the briefest of introductions, the act wastes no time in coming to the point. Sections 1–10 deal with homicide, and Section 1 is peremptory: in its entirety it reads “Whosoever shall be convicted of murder shall suffer death as a felon.”

Pharmacological offences

After dealing with homicide, the act covers attempts to murder and related offences in 25 separate sections (§11–35).

Of these, Section 22 deals with the use of pharmacological agents:

“Whosoever shall unlawfully apply or administer to or cause to be taken by, or attempt to apply or administer to or attempt to cause to be administered to or taken by, any person, any chloroform, laudanum, or other stupefying or overpowering drug, matter, or thing, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing, any indictable offence, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life or for any other term not less than three years,— or to be imprisoned for any term not exceeding two years, with or without hard labour.”

Sections 23 and 24 say much the same thing as Section 22, except that Section 23 deals with the felony of intending to endanger someone’s life and Section 24 deals with the misdemeanor of injuring, aggrieving, or annoying someone. Section 25 furthermore stipulates that if a jury considers that anyone charged with an offence under Section 23 is thought to be not guilty of the felony, but instead guilty of a misdemeanor under Section 24, a jury could acquit the accused of the felony but find him [sic] guilty of the misdemeanor.

Abortion

The 1861 act then deals severally with Assaults (§36–47), Rape, Abduction, and Defilement of Women (§48–55), Child-stealing (§56), and Bigamy (§57), and then tackles Attempts to procure Abortion (§58–59). Here we read what a footnote tells us is new to the law:

“Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.”

Thus did the 1861 act define the substances whose criminal use in this way would lead, following conviction, to imprisonment, with or without hard labour.

Because the 1967 Abortion Act was not promulgated in Northern Ireland, the 1861 Offences Against the Person Act, in conjunction with the 1945 Criminal Justice Act (Northern Ireland), has been used there to oppose termination of pregnancy before 28 weeks.5

Plus ça change, plus c’est la même chose

The saying “plus ça change, plus c’est la même chose” is attributed to the French journalist and novelist Jean-Baptiste Alphonse Karr. He was talking specifically about the French revolution, but the saying is more generally true.

Only two drugs capable of causing offences are specifically mentioned in the 1861 Act—chloroform and laudanum. Their use, if accompanied by, in the words of the act, “intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing, any indictable offence,” was considered felonious. This implies that such drugs were used in the 19th century for the purpose of what we would nowadays call “date rape,” a term that dates from the early 1970s.

Today drugs such as flunitrazepam, scopolamine, and ketamine are most commonly used for this purpose,6 and the 1861 act can still be used to prosecute cases of poisoning in which such drugs have been used.7 Even in recent times, chloroform has also been used in this way.8 It is clearly possible to regulate the clinical use of a drug such as chloroform effectively, as I have previously described,9 but not its criminal use.