Nonfatal offences against the person Sections 47 20

Non-fatal offences against the person Sections 47, 20 and 18 of the Offences Against the Person Act 1861

Common assault deals with the least serious cases of harm and more serious injuries will be charged under ss 47, 20 or 18 of the Offences Against the Person Act 1861 (OAPA 1861). These are statutory offences but the sections only provide the basic definitions of each offence and case law is heavily relied upon to explain the meaning of the terms used in setting out the offences.

S 47 Offences against the Persons Act 1861 Actual bodily harm (ABH)

S 47 definition • S 47 provides that a person convicted of ‘any assault occasioning actual bodily harm shall be liable to imprisonment for not more than five years’ • So for s 47 you need an assault plus actual bodily harm • These terms have been further defined in case law so it is important to know the cases

ACTUS REUS • Assault • Occasioning • Actual Bodily Harm

Assault The term ‘assault’ under section 47 means either an assault or a battery according to the cases and principles set out for common assault. Explain…

Occasioning An assault or battery will only be charged under section 47 if it occasions actual bodily harm. If there is no such harm then it will be s 39 CJA 1988. Occasion seems to mean the same as ‘cause’ – same rules of causation as in Roberts (1971)

Actual Bodily Harm Actual – means that there must be a form of physical or psychological injury. It can be very minor harm – Miller (1954) – ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ – provided it is more than transient and trifling. Definition was extended to hair being cut – DPP v Smith (2006) Injuries also included under s. 47 include: loss/broken tooth, loss of consciousness, minor cuts require medical treatment (stitches), minor fractures and extensive bruising Chan Fook (1994) – Psychiatric harm can amount to ABH – interrogated aggressively as a suspect for stealing a ring – Medical experts need to prove that the state of mind caused in the victim was evidence of an identifiable clinical condition and ‘mere emotions such as fear, panic and distress’ when unrelated to such a condition would not be considered. Miller – not applied to psychiatric harm

Psychiatric injury • In Chan Fook it was confirmed that actual bodily harm could include psychiatric harm • The same case made clear it did not include ‘mere emotions such as fear, distress or panic’ • Remember that causing fear will still be an assault, but can’t amount to ABH

MENS REA • Mens rea is intention or subjective recklessness • Importantly, it is only mens rea for the assault or battery that is needed • D need not intend, or be reckless as to, any harm

• R v Savage (1992) • R v Roberts (1971) • DPP v Parmenter (1992) What happened in these cases?

Roberts applied • In Roberts he committed the actus reus of battery when he touched her coat. This is unlawful force as shown in Thomas • He intended to grab her coat so had the mens rea for the battery. It was not necessary to prove he intended or was reckless that any harm occurred • The final part of the actus reus was that she suffered actual bodily harm. This was ‘occasioned’ by her reaction to his battery

Savage applied • The throwing of the beer was a battery • She had sufficient mens rea as she intended to throw the beer. This was enough • She had the actus reus and mens rea of battery plus some harm had been caused so the actus reus and mens rea for ABH was satisfied • Note the rules on causation may need to be applied. The assault or battery need to ‘occasion’ the harm as in Roberts and Savage • In Roberts she did not break the chain of causation as her actions were foreseeable

Problems • Do you think it fair that a person can be convicted of ABH when only having mens rea for an assault or battery? • Use Roberts and/or Savage to support any criticism

Other problems • The language is obscure • Assault means both assault and battery which is confusing • Neither assault nor battery are defined in any statute • Actual bodily harm is not fully defined • However, on the plus side, the courts have extended it to include mental harm (Chan Fook)

Main points First you need an assault or a battery Then you need some harm or injury to have been caused (Miller) For mens rea you need intent or subjective recklessness for the assault or battery only (Roberts, Savage) This is the actus reus Then you have the full actus reus and mens rea for a s 47 offence

Summary of ABH Assault Harm • Means an assault or a battery • The full offence is assault occasioning actual bodily harm • ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ Miller • including psychiatric harm Chan Fook • Only needed for the assault or battery Mens rea • Roberts, Savage

Non-fatal offences against the person S 20 and s 18 Offences against the Persons Act 1861 Malicious wounding / wounding with intent

S 20: The definition • Commonly called malicious wounding, s 20 actually covers both wounding and grievous bodily harm • Under s 20 it is an offence to: • ‘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 an offence and shall be liable…to imprisonment for not more than 5 years’ • Section 20 is a more grave offence than 27, despite the fact that the maximum sentence for both is 5 years.

ACTUS REUS • So there are two parts to the offence: – Wounding OR – Grievous bodily harm Or, is the key word. If the wound has also inflicted gbh, then the prosecution must choose from the two offences.

Wounding • Both layers of the skin are broken and usually blood loss – JCC v Eisenhower – air pellet in eye leading to internal bleeding was not GBH • There must be a break in the continuity of the skin • What else is not included and what is included?

Grievous Bodily Harm • A minor wound might be charged as a s 20 offence, but any other offence under s 20 must be ‘grievous’ • DPP v Smith (1961) – this means no more and no less than really serious • Saunders (1985) – serious harm, ‘really’ is not necessary • R v Burstow (1997) – GBH can be psychiatric harm as long as it is sufficiently serious The charging standard list – broken bones, injuries requiring lengthy medical treatment, substantial loss of blood, permanent disability or disfigurement

• R v Bollom (2004) – elderly and children, the harm will be more serious • Several minor injuries can amount to a s. 20 offence if taken as a whole – Brown and Stratton (1998) • The grievous harm must be inflicted upon the victim – Clarence (1888) – inflict was understood to have needed assault or battery requiring direct force • Wilson (1996) – s. 20 offence can be committed without need for assault or battery • Confirmed in R v Ireland (1997) – no necessity to apply direct or indirect force – only need to prove that defendant caused the victim to suffer GBH – cause and inflict can be interchangeable

• Removing the requirement for assault and battery under s. 20 leads to ‘biological’ GBH – R v Dica – HIV transmitted through consensual sex – stated that Clarence (1888) should have no further relevance

Other cases Bollom shows that the age and health of the victim may be relevant Severe bruising would usually be ABH But could be GBH if the victim is very young – or very old or vulnerable Dica shows infecting someone with HIV can be GBH

Unlawfulness • Wounding or GBH needs to be unlawful in order to be an offence and in most cases a simple lack of consent by the victim will render the act unlawful. • However, consent does not always mean the defendant is not liable

Mens rea • The word ‘maliciously’ in s 20 has been interpreted as meaning intent or subjective recklessness – Cunningham subjective test • There is no need for D to have mens rea for serious harm – R v Mowatt (1976) • D need only intend or see the risk of some harm

Problems with s 20 • As with s 47 the language is obscure • ‘maliciously’ and ‘grievous’ may have meant something different nearly 150 years ago • Breaking of the skin could be a small cut but will be a wound and come under s 20 (or 18) • The actus reus is for serious harm • The mens rea is for some harm • Do you think the AR and MR should match?

Sentencing problem • The maximum sentence for s 20 is five years • This is the same as for s 47 which is a lesser offence • Do you think this is right?

S 18 Wounding with intent

S 18: The definition • Commonly called wounding with intent • Under s 18 it is an offence to: • ‘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 an offence, and being convicted thereof shall be liable…to imprisonment for life’ • This is much more serious than s. 20

Actus reus and mens rea • • The actus reus is the same as for s 20 D’s act must wound or cause serious harm The mens rea is different S 20 says ‘with intent to do some grievous bodily harm’ Maliciously is interpreted to mean that the defendant must intend serious harm Intention is needed, recklessness is not enough D must intend ‘to do some grievous bodily harm’ , i. e. D must intend serious harm Intent applies as for murder (Nedrick/Woollin)

• Oblique intention as well as direct intention applied to s. 18 – was GBH virtually certain as a result of actions

Resisting or preventing arrest • The final part of s 18 is ‘or with intent to resist or prevent the lawful apprehension …of any person’ • Thus if D wounds or causes serious harm with intent to resist or prevent arrest, liability will be under s 18 • There is no need to prove intent to cause serious harm • Morrison decided that recklessness is enough

Problems • The difference between s 20 and s 18 is in the mens rea only but the maximum sentence changes from five years to life • Intent to seriously injure is also the mens rea for murder so this is perhaps justified • Morrison allows for a conviction under s 18 even if there was no intent to cause serious harm where D intends to resist or prevent arrest and sees the risk of injury

Summary of s 20 and s 18 S 20 wounding or inflicting grievous bodily harm S 18 wounding or causing grievous bodily harm with intent • Actus reus: A wound is breaking the skin – Eisenhower. GBH is serious harm Saunders • Mens rea: intent or subjective recklessness to cause some harm - Parmenter • Actus reus: as above • Mens rea: intent to cause serious harm • Resisting arrest requires only recklessness - Morrison

Extras

Non-fatal offences: actual bodily harm Definition Section 47 of the Offences Against the Person Act 1861 states that it is an offence to commit ‘any assault occasioning actual bodily harm’. The offence is triable either way and carries a maximum sentence of 5 years’ imprisonment.

Non-fatal offences: actual bodily harm Actus reus The actus reus of ABH has been interpreted as assault or battery that causes ‘actual bodily harm’. This has been given the wide definition of ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R v Miller, 1954). Thus, ABH can occur where discomfort to the person is caused. However, in R v Chan-Fook (1994), Lord Justice Hobhouse said in the Court of Appeal that ‘the word “actual” indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant’.

Non-fatal offences: actual bodily harm Mens rea The mens rea for ABH is the same as for assault and battery. No additional mens rea is required (R v Roberts, 1978, and R v Savage, 1991).

Non-fatal offences: actual bodily harm Joint Charging Standards The police and Crown Prosecution Service have agreed the Joint Charging Standards, which set out the types of injury that will be regarded as ABH. Such injuries include: • minor fractures • severe bruising and small cuts that require stitches • loss of consciousness • psychiatric injury

Non-fatal offences: grievous bodily harm (s. 20) Grievous bodily harm (s. 20)

Non-fatal offences: grievous bodily harm (s. 20) Definition According to s. 20 of the Offences Against the Person Act 1861: ‘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 an offence triable either way and being convicted thereof shall be liable to imprisonment for 5 years. ’

Non-fatal offences: grievous bodily harm (s. 20) Actus reus The actus reus of the s. 20 offence is unlawfully and maliciously wounding or inflicting grievous bodily harm. The word ‘inflict’ has been interpreted to mean that the grievous bodily harm must be caused by the direct application of force, e. g. hitting, kicking or stabbing, but not digging a hole for the victim to fall into. However, in practice the courts have given a fairly wide interpretation as to when force is direct.

Non-fatal offences: grievous bodily harm (s. 20) Mens rea The mens rea of s. 20 GBH is described by the word ‘maliciously’. In R v Cunningham (1957), it was stated that for the purposes of the 1861 Act, ‘maliciously’ meant ‘intentionally or recklessly’. There is no need to intend GBH or wounding, or to be reckless as to whether GBH or wounding might be caused. The defendant needs only to intend or be reckless that his or her actions could cause some physical damage.

Non-fatal offences: grievous bodily harm (s. 18) Grievous bodily harm (s. 18)

Non-fatal offences: grievous bodily harm (s. 18) Definition Section 18 of the Offences Against the Person Act 1861 states that: ‘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 an offence triable only on indictment, and being convicted thereof shall be liable to imprisonment for life. ’

Non-fatal offences: grievous bodily harm (s. 18) Actus reus The actus reus for s. 18 is similar to that for s. 20 and requires proof of either GBH or wounding. The actus reus of wounding and the actus reus of GBH have the same meaning as under s. 20.

Non-fatal offences: grievous bodily harm (s. 18) Mens rea To satisfy the mens rea, the prosecution must prove intention to cause GBH or intention to avoid arrest. The crucial difference between s. 20 and s. 18 GBH is in the mens rea; while recklessness can be sufficient for s. 20, intention is always required for s. 18.