4.2.2 Wounding and GBH Lecture
Grievous bodily harm (GBH) and Wounding are the most serious of the non-fatal offences against the person, charged under s.18 and s.20 of the Offences Against the Persons Act 1861. It is the absolute maximum harm inflicted upon a person without it proving fatal.
As with any problem question on non-fatal offences against the person, make sure that you read the question in full first and check that the victim does not die as a result of the harm. Answering a homicide question in terms of s.18 and s.20 offences is an easy way to lose marks in an exam and one which can be avoided!
1.0 Type of Harm
To understand the charges under each section first the type of harm encompassed by these charges must be established.
DPP v Smith  AC 290 explained that GBH should be given its ordinary and natural meaning, that is really serious harm. R v Brown and Stratton  Crim LR 484 stated that judges should not attempt to define this any further to a jury and that this is a wholly objective assessment. Accordingly, as there is no strict legal test as to ascertaining what really serious harm is, it is necessary to look to case studies for guidance.
Case in Focus
R v Brown and Stratton  Crim LR 484
This case exemplifies the type of harm that will be considered as GBH. In this case the defendant’s father had undergone gender reassignment treatment to become a woman. She turned up at her son’s work dressed in female clothes and he was humiliated. After work the defendant and his cousin went over to his father’s house and attacked her, breaking her nose, knocking out three teeth, causing a laceration over the one eye, a concussion and heavy bruising. The Court of Appeal held these injuries were justly described as GBH.
R v Ireland and Burstow  UKHL 34 clarified that the harm does not have to be physical and that a serious psychiatric injury could amount to GBH.
If the injuries are serious and permanent then they will amount to GBH, however permanence is not a pre requisite of GBH. Temporary injuries can be sufficient.
The CPS Charging Standards do offer some guidance as to the type of injuries that may amount to GBH. These include:
-A substantial loss of blood, usually requiring a transfusion
-Those which require lengthy medical treatment or result in a period of incapacity
-A permanent disability or loss of sensory functions
-A permanent visible disfigurement
-Broken bones, cheek bone, jaw or ribs
-Dislocated joints, displaced limbs and fracturing to the skull
It can be seen from the list above that aside from broken bones, there is a reluctance to provide specific injuries and the focus instead is on the impact of the injury rather than the injury itself. This is because, as confirmed inR v Bollom  EWCA Crim 2846 an important consideration as to whether harm can be classed as grievous is dependent on the characteristics of the victim and therefore the law cannot reasonably provide a one size fits all list of injuries that this will encompass.
Case in Focus
R v Bollom  EWCA Crim 2846
The defendant inflicted bruising on a 17-month-old child and was convicted of GBH. In upholding his conviction Fulford J stated at paragraph 52 “To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context”
To explain this reasoning further, a fit and healthy 20-year-old will be able to sustain a higher level of harm before this becomes ‘really serious’, than a 6-week-old baby or a frail 80-year-old. A two-inch bruise for example on said 20-year-old might be painful but not ‘really serious’, whereas on a new born baby this would likely be indicative of a very severe risk to the health of the child. The 20-year-old also has the physical capacity to suffer much more blood loss than an older person or a very small child before this becomes serious.
In light of these considerations, the correct approach is therefore to conduct an independent assessment of all the facts on a case by case basis.
JJC v Eisenhower  QB 331 defines wounding as the breaking of both layers of the external skin: the dermis and the epidermis. In this case a gunshot wound that caused internal bleeding in the form of a ruptured blood vessel did not constitute a wound as the external skin was still intact.
This definition may seem surprising as it does not follow the usual understanding of wound which implies a more serious level of harm that a mere split in the skin, for which a pin prick could qualify. The CPS Charging Standards seek to address this by stating that a minor injury as such should be bought under s.47 assault occasioning actual bodily harm, however these are just guidelines and are not legally binding.
In a problem question make sure to establish this point where a minor wound occurs as you need to show the examiner that you appreciate the difference between the Charging Standards and the binding legal definition of a wound.
Wounds are a separate concept to GBH and do not need to be ‘really serious’ so don’t confuse the two.
For an essay question you may be asked whether you feel the two should be charged under the same offence given the difference in severity. Consider that on a literal interpretation a paper cut could constitute a wound which is clearly vastly less serious than the level of harm encompassed by GBH so it seems wrong that they are classed as equally serious for the purposes of charging! Looking to the enactment year of the Offences Against the Persons Act, which was back in 1861, provides some explanation as to why the two are treated with the same severity. Back then infection was common as tetanus shots, antibiotics were not as readily available as they are today, and people did not possess the knowledge of sterilisation, sanitation and treating wounds that we hold at present. Often such injuries did get infected and lead to death. However, today this is not the case and it is unusual for such wounds to escalate to that scale.
2.0 Section 20
Section 20 of the Offence Against the Persons Act provides:
“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 misdemeanour, and being convicted thereof”
2.1 Actus Reus
The actus reus of this offence can be broken down as follows:
•(i) Wound, OR; (ii) inflict GBH
•on another person
Inflicting harm is prima facie unlawful, therefore this requirement is satisfied simply in absence of an available defence such as self-defence or valid consent. For example, in relation to surgery, which in the absence of consent that would otherwise qualify as such unlawful harm.
Applying the Eisenhower definition this element is satisfied if a break in the external skin arises from the defendants conduct.
If this is evidenced, then the actus reus for the s.20 offence is satisfied and it is not necessary to prove the GBH element in addition for a charge to be available as this is an alternative element.
Inflicting Grievous Bodily Harm
If there is no wound as per the Eisenhower definition, then this does not negate the actus reus of the offence. The alternative actus reus of inflicting grievous bodily harm should be considered.
For the purposes of this element of the actus reus it must first be shown that the harm was grievous. This can be established by applying the objective test and surrounding case law to assess whether the harm is ‘really serious’ as per the Smith definition.
Once the level of harm has been quantified, it needs to be shown that the harm was inflicted by the defendant.
The meaning of the word inflict has caused some confusion over the years.
Pay attention to this section as for an essay question you may be asked to provide a discussion as to the meaning of ‘inflict’
It was presupposed to mean a direct application of harm with the understanding that a s20 offence required the GBH to be caused directly to the victim. For example, hitting them or pushing them would suffice but chasing them and causing them to run into a wall or fall into a pit would not. This was the situation until R v Martin (1881) 8 QBD 54. In this casethe defendant put a metal bar across the exit of a theatre, turned off the lights and then shouted “fire, fire!” which provoked people to run towards the exit where the bar was. Several people were severely injured as a result of the defendant’s actions and he was charged under s.20 OAPA 1861. The defendant tried to appeal the charge on the basis that he believed inflict to require the direct application of force but the Court held that this was not the case as direct force was sufficient for the purposes of inflicting harm.
R v Clarence (1888) 22 QBD 23 presupposed that inflict required an assault to occur, and thus a husband who gave his wife a sexually transmitted disease could not be guilty as she did not know he had the disease and consented to the , negating the assault.
R v Wilson  AC 242 overruled Clarence in this regard and held this was not the case. The Court explained ‘inflict’ merely required force being applied to the body of the victim causing them to suffer GBH. Lord Roskill set out that GBH may be inflicted either where the defendant has directly and violently assaulted the victim, or where the defendant has inflicted it by intentionally doing an act which, although it is not in itself a direct application of force to the body of the victim, it directly results in force being applied to the body of the victim, so that they suffer grievous bodily harm.
Following Ireland and Burstow this is definition is qualified in relation to psychiatric harm and there is no requirement for there to be any application of force whatsoever, either direct or indirect. Inflict for this purpose simply means cause.
Case in Focus
R v Ireland and Burstow  UKHL 34
This was a joined appeal of the defendants Mr Ireland and Mr Burstow. The facts of the cases of both men were similar. Focusing on the facts of Mr Burstow’s case, the defendant had become obsessed with a woman and began stalking her, carrying out random acts such as damaging her car and breaking into her home, stealing her clothes, throwing condoms all over her garden, subjecting her to silent phone calls and sending hate mail. His disturbing and relentless behaviour caused the victim to suffer from severe depression, insomnia and panic attacks.
The defendant was charged with the s.20 offence but argued that he had not ‘inflicted’ the GBH suffered by his victim on her in accordance with the Wilson understanding of the term as he had at no point applied any force to her, either directly or indirectly. In rejecting his appeal, the House of Lords extended the definition of inflict to situations where no physical force had been applied to the victim.
Accordingly, inflict can be taken to mean the direct or indirect application of force, or the causing of psychiatric harm.
Despite being originally held not to be so in the case of R v Clarence (1888) 22 QBD 23, following R v Dica  3 ALL ER 593 ‘Inflict’ now also encompasses the transmission of sexual diseases, such as HIV, where these are serious enough to be constituted as GBH, and the defendant is aware that there is a risk that they are suffering from the disease (R v Adaye (2004) unreported). R v Marangwanda  EWCA Crim 60 extended this further holding that the transmission does not have to occur through sexual intercourse. In this case the defendant passed gonorrhoea to two children through poor hygiene. He had touched himself and then failing to wash his hands had cared for the children in assisting with washing and dressing them, causing them to contract the disease.
On another person
This simply sets out that you cannot be guilty of wounding or inflicting GBH on yourself
2.2 Mens Rea
The mens rea for the s.20 offence is ‘maliciously’.
Originally the case of R v Cunningham  2 QB 396 considered this in relation to the Offences Against the Persons Act 1861 and held it to mean intention or subjective recklessness.
Case in Focus
R v Cunningham  2 QB 396
The appellant ripped a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring property where his future mother-in-law was sleeping and was poisoned by the gas. He was charged with the offence of administering a noxious substances s.23 Act which required the defendant to maliciously administer a noxious thing to endanger life or inflict GBH. At trial the judge directed the jury that ‘malicious’ meant wicked and the defendant was convicted. He appealed on the basis of a misdirection and it was held that ‘malicious’ is properly defined as possessing an actual intention to cause the harm or subjective recklessness as to whether such harm should occur or not.
This was affirmed in the case of R v Parmenter  94 Cr App R 193 which considered the meaning of maliciously specifically in relation to the s.20 offence.
Case in Focus
R v Parmenter  94 Cr App R 193
The defendant was not familiar with being around children and had no idea how to handle a young baby. Tragically he caused serious injuries to the bone structures in the limbs of his infant son and, as a result of the heavy way he had handled him, and he was convicted on four counts of causing GBH under s.20. As the defendant was not used to handling the child he had no idea his conduct would cause the child harm.
At trial the judge directed the jury that must convict if the defendant should have foreseen that the handling of his infant son would result in some harm occurring to the child. The defendant appealed contending that it was necessary to establish a subjective appreciation of the risk and not an objective ruling that he should have foreseen the risk of injury. His appeal was allowed, holding that the correct interpretation of ‘maliciously’ for the purposes of s.20 is intent or a subjective appreciation of the risk of harm and being reckless as to that harm occurring.
Obiter in R v Mowatt  1 QB 421 extended this further to suggest that there is no need for intention or recklessness as to causing GBH or wounding; mere intention or recklessness as to the causing of some physical harm, albeit it very minor harm, will suffice.
Case in Focus
R v Mowatt  1 QB 421
The defendant and his friend were out in the early hours of the morning. His friend stole some money from the victim and ran off. The victim turned to the defendant and demanded to know where his friend had gone. The defendant felt threatened by the demands and knocked the victim to the floor, repeatedly punching him in the face. The defendant was convicted under s.18 OAPA 1861 but it was left open for the jury to consider an offence under s.20. In offering a direction as to the s.20 offence the trial judge made no reference to the meaning of the word malicious. Accordingly, the defendant appealed. It was held on appeal that in the circumstances it was unnecessary to define malicious as harm was clearly intended, however Diplock LJ in obiter offered guidance in relation to the meaning of malicious under s.20 stating at paragraph 426, "In the offence under Section 20, and in the alternative verdict which may be given on a charge under Section 18, for neither of which is any specific intent required, the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by "the particular kind of harm" in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the Section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”
This obiter was confirmed in R v Savage  94 Cr App R 193.
Case in Focus
R v Savage  94 Cr App R 193
The defendant was out in the pub when she saw her husband’s ex-girlfriend. There was a lot of bad feeling the two women and the defendant was unhappy to see the her. Intending to humiliate her, the defendant threw the contents of a drink over the victim. The glass slipped out of her hands and smashed into pieces, cutting the victim's wrist. The defendant made it clear that it was never her intention to actually throw the glass or harm the victim in anyway. At trial the judge directed the jury incorrectly, stating that ‘malicious’ meant that the unlawful act was deliberately aimed towards the victim and resulted in the wound. On this basis the jury convicted and the defendant appealed. The Court of Appeal held this was a misdirection as it did not correctly state that malicious included recklessness and that this is decided subjectively. The Court of Appeal referred the question to the House of Lords as to whether it was necessary under s.20 to establish that the defendant intended or was reckless as to the infliction of GBH or whether it was sufficient that the defendant foresaw some harm. The House held that It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm would result.
The scope of this foresight was highlighted in DPP v A (2000) 164 JP 317 where the Court clarified that the defendant is only required to foresee that some harm might occur, not that it would occur.
Following the case law, it can be properly stated that the mens rea of ‘maliciously’ is in other words, a foresight by the defendant of a risk of some harm occurring.
2.3 Charging and Sentencing
This offence is triable either way which means it can be heard and sentenced at either the magistrates court or crown court, depending on the seriousness of the specific offence and the defendants wishes. It carries a maximum sentence of five years imprisonment.
3.0 Section 18
Section 18 of the Offences Against the Persons Act 1861 provides:
“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”
3.1 Actus Reus
The actus reus for the offence can be broken down as follows:
•(i) wound or (ii) cause any GBH
•On another person
These criteria are satisfied in the same way as for the s.18 offence, with the only difference being in relation to the GBH which can be ‘caused’ rather than ‘inflicted’. This makes it clear that for the purposes of a s.18 offence indirect harm will definitely suffice. It should be noted that the ruling in Ireland and Burstow was keen to clarify that cause and inflict are not one and the same, however there is no case law at present that points to a distinguishable difference.
3.2 Mens Rea
•(i) Intention to do some grievous bodily harm or (ii) with intention to resist or prevent the lawful apprehension or detainment of any person.
Intention to do some grievous bodily harm
It is this element of the offence that provides the crucial distinction between the s.18 charge and the s.20 charge. Whilst a s.20 offence may be committed recklessly, the s.18 offence specifically requires intention.
It should be noted that intention is a subjective concept and the court is concerned entirely with what the defendant was intending when he committed the offence and not what a reasonable person may have perceived him to be intending.
Intention can be direct or indirect. Direct intention is easy to comprehend; it is the very thing the defendant was actually intending to achieve when he did an act. For example, punching someone in the face, intending to break their nose. However, following R v Woollin  AC 82 the jury can find intention where although the result was not the exact desired consequence held by a defendant, it could be appreciated by the defendant himself that it was a virtually certain consequence of his act. This is known as indirect or oblique intention. For example, a defendant punches a thin pain of glass that the victim is standing behind, intending to break the glass but realising that in doing that it is virtually certain that he will hit the victim, even though this is not his primary intention. In finding whether that particular defendant foresaw the GBH as a virtually certain consequence of his actions, the jury are required to make this decision on an assessment of all of the evidence put before them.
The intention element of the mens rea is important in relation to where a wound occurs as it shows causing a wound with intention merely to wound as per the Eisenhower definition will not suffice. For a s18 wounding charge to be bought the defendant must have intended really serious harm. However, a cut could theoretically suffice where the greater level of harm was the intention.
For the purposes of intention to cause GBH the ‘maliciously’ element of the mens rea imposes no further requirement. If the defendant intended to cause the harm, then he obviously intended to cause some harm.
Intention to resist or prevent the lawful apprehension or detainer of any person
The first point is that the apprehension being prevented must be lawful. The first indicator of lawfulness is that the detainment takes the form of an arrest. Any other such detainment is unlikely to be lawful. If the GBH or wound is caused when the defendant is intending to resist an unlawful arrest, then this will be insufficient to satisfy the mens rea of the offence.
In relation to this element of the mens rea, it is necessary for the prosecution also to prove the ‘maliciously’ element. Just because a defendant intends to avoid arrest this does not automatically mean that he intends harm or is subjectively reckless as to whether some harm will be caused.
Due to the requirement for the arrest to be lawful it is necessary to have some knowledge of the Police and Criminal Evidence Act (PACE) 1984 as to when an arrest will be lawful, however for examination purposes the examiner is not testing your knowledge of the Act and will make it easy for you. It may be for example….
“…Tom is walking down the street and a police officer grabs him, handcuffs him and tries to force him into the back of a police car. He does not inform Tom that he is being arrested and when later questioned by his colleague he fails to give a reason for making the arrest…”
It can be seen from this that a general knowledge of PACE or indeed law in general is sufficient to identify that this is not a lawful detainment and therefore any reckless GBH or wounding caused by Tom in intending to resist the detainment by the police officer will be insufficient to satisfy the mens rea of s.18.
3.3 Charging and Sentencing
The offence is indictable only which means it must be heard and sentenced at crown court.
Section 18 offences are the most serious of the non-fatal offences against the person and often it is sheer luck on the part of the defendant that the victim does not die. When that level of harm is inflicted on a person it is often left to fate as to whether or not it will prove fatal. Consider two different defendants punching two different victims in the head. It is not unforeseeable that one of these will die as a result of the punch and sadly this often happens. Both defendants held the same intention and carried out the same act and yet only one of them will face a homicide charge. To reflect the fact that in reality they are both equally guilty, the s.18 offence carries a maximum life imprisonment.
All of the usual defences are available in relation to a charge of GBH. With regards to consent, R v Brown  1 AC 212 and Attorney General’s Reference no. 6 of 1980have established that a person may give valid consent to GBH, but only where it is in the public interest for them to do so (see Chapter 4.1 for a more in-depth discussion as to this).
5.0 Discussion for Reform
Due to the age of the Act and numerous issues identified with the offences set out there is lots of discussion surrounding reform of the law in relation to the s.18 and s.20 offences. The main issues with the current law can be identified as follows:
•There is confusing terminology, especially with regards to ‘maliciously’ and ‘inflict’.
•Inconsistencies exist within the provisions themselves. Section 20 requires the infliction of GBH but a wound will qualify howsoever caused, thus making one type of harm theoretically easier to establish than the other arguably more serious type.
•There is criticism with regards to the definition of wounding which can be satisfied by a very low level of harm, for example a paper cut. This does not marry up to wounding as society would understand it to be.
•A double mens rea exists in relation to the s.18 offence requiring ‘intent’ but also ‘malice’, which is superfluous once intent has been established.
•There are serious issues with the description of the harm the provisions encompass: -
•The low level of harm that could fulfil the definition of a wound is presently classed as equally as serious as GBH for the purposes of the two offences;
•The classification of the harm as ‘bodily’ harm does not encompass psychiatric harm.Through the ruling in Ireland and Burstow judges have addressed this and bought the law up to date with respect to modern day medical understanding however the wording of the provisions still remain and are not reflective of the law as it presently stands.
•Due to the issues with defining maliciously and the double mens rea in relation to s.18 the is some confusion as to what the offences require for a defendant to be culpable.
This is another hot topic for an essay question on these offences. Note that the issues set out above are just the issues taken from our discussion and are not a definitive list. If you are considering attempting this topic in an exam, then it will pay to do some further reading and also to conduct your own critical analysis of the two provisions. Are there any more concerns with these that you can identify yourself?
In order to address the many issues identified with the provisions, the Home Office presented a new draft Offences Against the Person Bill in 1998 which sought to mitigate the above issues. It proposes to deal with them as follows:
•The draft Bill proposed amending s.20 to create a new offence of ‘recklessly causing a serious injury to another’, with a maximum sentence of 7 years. This provision refers to causing serious injury and makes no reference to inflicting, wounding or bodily harm. The maximum sentence was extended to reflect that it is more serious than a s.47 offence of assault occasioning actual bodily harm which at present carries an identical sentence to the s.20 offence, despite the difference in severity of harm caused.
•With regards to s.18, the draft Bill proposed an offence of ‘intentionally causing serious injury to another’. As with the proposed s.20 offence, any reference to wounding or bodily harm is removed.
•The draft Bill actually sets out a definition of injury in order to provide clear and specific, legally binding guidance as to what this entails. For the purposes of the provisions injury would encompass physical injury, such as pain, unconsciousness and any impairment to physical condition, as well as mental injury which would include any impairment of a person’s mental health
•The draft Bill expressly defines intention and recklessness and states that for the purposes of the offences the harm intended or foreseen must related to the act committed, which would overturn the law established in Mowatt and Roberts.
Despite this Bill being proposed back in 1998 there remains no change and the Offences Against the Persons Act 1861 remains good law in this area.
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