Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.
For many years, acid attacks have been a common occurrence in parts of the Indian sub-continent. There are around 300 attacks a year. Many are perpetrated by males on former partners. The physical injuries are usually devastating and life-changing.
In response to this, on 18th July 2013 in Laxmi vs. Union of India (2014) 4 SCC 427, the Indian Supreme Court ruled that there would be restrictions on the sale of acid. The court said that acid should be sold only to customers showing a valid identity card; that buyers will have to explain why they need the chemical; sales will have to be reported to the police; and acid was not to be sold to anyone under 18. In terms of criminal proceedings, bail would no longer be permitted for those accused of the offence. More recently, in Kendra v Union of India (2015) SC CRL Dec 2, the Court held that higher levels of victim compensation were required. The court said at least 300,000 rupees (£3,320) must be paid to help rehabilitate victims of such attacks. The maximum sentence for the offence is now 10 years’ custody. It is clear the Indian response to an unfortunately all too common problem is becoming increasingly robust.
Acid attacks are a more recent phenomenon in England and Wales, but statistics show that they are nonetheless increasing. Freedom of Information requests submitted by the Press Association to all police forces in the United Kingdom indicated that there were 242 reports of violent crime which mentioned acid or other corrosive substances across 23 police forces in 2014-15. This compared to 186 alleged offences in 2012-13.
It is submitted that the problem does not lie in the prosecution of these offences. There are a range of statutory offences with which offenders can be charged, carrying robust sentences. The conventional approach seems to be to prosecute acid attacks under the provisions of section 20 or section 18 of the Offences Against the Person Act 1861. This may reflect the familiarity of practitioners with these well-worn provisions. However, attacks involving corrosive substances may also be prosecuted under sections 24, 28 or 29 of the same Act; section 29 (sending, throwing or using explosive substance or noxious thing with intent to do grievous bodily harm) carries a maximum sentence of life imprisonment.
A possible reason for the steady increase in the use of acids may be that the robust prosecution and sentencing of offenders is simply not having a deterrent effect. Common sense might dictate that deterrence is less effective against those overcome by an all-consuming jealous rage in any event. It is prevention, rather than cure, which is particularly important in the case of acid attacks, as the Indian Supreme Court recognised in Laxmi.
The Acid Survivors’ Trust International has called for tighter regulations on the purchase of corrosive cleaning agents in England and Wales. There is already an Act in place, the Poisons Act 1972, which prevents or inhibits the sale of certain corrosive, poisonous or precursor substances. Substances in the Poisons Act 1972 are divided into more harmful substances which are ‘regulated’ (Part 2, Schedule 1A to Poisons Act 1972) and those which are less harmful which are ‘reportable’ (Part 4, Schedule 1A to Act). The term ‘less harmful’ is relative: reportable substances include ammonia, arsenic, and hydrochloric acid which has a range of particularly acute effects. This article focuses on the sale of ‘reportable’ substances as regulated poisons are more stringently controlled. Section 3C (1) and (8) of the Poisons Act 1972 provides for an offence of failing to report a transaction of a reportable poison under the Act which the supplier has reasonable grounds to believe is suspicious. The offence is summary-only but can attract a short prison sentence. The Act defines circumstances which mean a transaction is “suspicious” which effectively mean ‘intended for illicit use’ (subsection 3C(3)) and provides a non-exhaustive factors to help determine whether there are reasonable grounds for believing the transaction to be suspicious (subsection 3C (4).
While the Act is clearly well-intentioned, the fact remains that corrosive substances capable of causing very serious disfigurement continue to be available for purchase in the household cleaning aisle of any supermarket or on the internet without any restriction. For example, nitric acid is readily available online. Attacks with this acid often lead to the most debilitating injuries; its chemical effect is to decompose living tissue. The unhappy facts of R v Ismail (1992) 13 Cr App R (S) 395 bear witness to this. The case concerned a nitric acid attack by an angry ex-partner which led to the victim suffering grave disfigurement and total blindness.
First, given that the availability of acids can be directly linked to the number of attacks, it is more than arguable that more corrosive acids, such as nitric acid, should be regulated under the Poisons Act 1972. But it is also arguable that the Poisons Act 1972 does not go far enough. It would certainly be possible to enact law which sets minimum standards for any sale of acid, as was attempted in Laxmi. For example, an identification process would be desirable. The reader may well comment ‘what on earth is that going to do if someone is hell-bent on disfiguring their partner?’ At minimum, it will make it inevitable that a person is identified and made subject to criminal proceedings but it should also have the effect of bringing home to a potential offender the inevitable consequences of using the acid as they intend. Efforts could also be made to increase the terms of imprisonment for sale-related offences which would serve to focus the minds of vendors on the need to engage carefully in transactions. All that said, however, any new approach to the problem requires an equally committed approach to enforcement. Research suggests that generating this commitment poses another challenge: a recent comparative study on acid violence laws revealed that even where restrictions on sales of acid are notionally in place, they are ineffective due to a lack of enforcement.
Of course, there would always remain the issue of unregulated production of acid. An attractive example of a robust response to that issue can be found in Bangladesh. In response to a plague of acid attacks, Bangladesh passed two complementary Acts creating criminal offences relating to acid attacks. The first, the Acid Offence Prevention Act 2002, creates criminal offences with harsh punishments (up to and including capital punishment) for attacking others with acids (the writers do not endorse such punishments as an attractive example). However, the second Act, the Acid Control Act 2002 criminalises the unlicensed production, import, transport, storage, sale and use of acid with hefty sentences for offenders.
The robust intent of the Bangladeshi legislature is reflected in the fact that the Acid Control Act also criminalises those who possess chemicals and equipment for the unlicensed production of acid. Such people stand to face the same sentence as those who produce acid.
Happily, acid attacks have decreased in Bangladesh since the implementation of the Acts although there have been issues with implementation which, in the view of some NGOs have meant the Acts are not effective as they could be. These issues seem to reflect problems with implementation across the Indian subcontinent. It is notable that the court in Laxmi eventually reconvened to note that recommendations previously made in the case had not been put in place by a number of administrative regions and territories.
It is submitted that England and Wales generally has a good record of implementation (once the commencement date of a provision has passed) and so is less likely to face the same obstacles. Given the steady rise in acid attacks and continuing accessibility to extremely corrosive substances, the answer is surely to dam the flow now rather than be overcome by it later.
Co-authored By Josh Normanton (Barrister) and Elaine Freer (Pupil).
Posted by Joshua Normanton on 30 August 2016 at 16:09