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The law relating to non-fatal offences against the person is to be found in the Offences against the Person Act 1861(OAP).
It should be noted straight away that there are in effect two offences and they are set out in Sections 18 and 20 OAPA.
We start with malicious wounding or grievous bodily harm under Section 20 OAP 1861. This offence arises when someone unlawfully and maliciously wounds or inflicts any grievous harm either with or without a weapon or instrument. The maximum punishment for this offence is the same as for actual bodily harm (5 years imprisonment). This is surprising to many as most people consider this offence to be more serious and at least one reason why the law in this area needs modernising and to be brought up to date.
There are two aspects to this offence, the malicious wounding or the malicious infliction of grievous bodily harm. If these words are meant to cover different harm then it was important to discover the differences. As regards malicious wounding, the importance of this distinction is illustrated by the case of JJC (a minor) v Eisenhower 1984. In this case pellets from the defendant’s air gun caused an eye injury to the victim. This caused bruising and rupturing of internal blood vessels but there was no breaking of the skin. The Divisional Court found that wounding had not occurred through the internal rupturing of blood vessels. Wounding amounted to a ‘break in the continuity of the whole skin’. This does not mean that such an injury needs to be serious.
Many have argued that the interpretation of malicious wounding in this way is inconsistent with the higher level of harm required i.e. ‘grievous bodily harm’ – meaning serious harm DPP v Smith 1961 which is the alternative acteus reus required for a Section 20 offence. In Smith the defendant was trying to escape from the police in a car which was signalled to stop. Smith failed to stop. A police officer jumped onto the car’s bonnet but the defendant drove on at high speed, swerving from side to side, until the officer was thrown off and killed. The matter eventually reached the House of Lords when they concluded that the words 'grievous bodily harm' means 'really serious harm'. Saunders 1985 in which the victim suffered a broken nose which was accepted as serious bodily harm, and that the word 'really' did not add anything.
Again this raises the issue that the law in this area is unnecessarily complicated and needs to be simplified by modernising and reform.
The actus reus required under Section 20 consists of an unlawful wounding or unlawful infliction of grievous bodily harm. The word ‘inflict’ has received the attention of the courts and for a time the authorities seemed to conflict. In Ireland, Burstow, R v (1998) the House of Lords decided to take a broad view when considering whether the word 'inflict' meant that the harm done has to be directly inflicted on the victim. In that case the accused had employed an endless range of means in his harassment campaign and these included letters, photographs,telephone calls, following the victim and stealing washing. The House of Lords favoured the wider interpretation of the word 'inflict' so that it read the word in a similar way as the word 'cause'. This was the view taken in the Supreme Court of Victoria decision in R v Salisbury (1976). It was Lord Roskill who expressed the view he was "content to accept, as did the (court in Salisbury) that there can be the infliction of grievous bodily harm contrary to section 20 without an assault being committed."
The Court of Appeal took the opportunity to follow this approach in R v Dica (2004) where the accused failed in his appeal against a conviction of malicious wounding through knowingly passing HIV to a woman. The defence of consent failed because any consent was not an 'informed' consent. Any notion that for a charge of grievous bodily harm to succeed it was dependent upon a direct assault upon the victim as in Clarence (1888) was dispelled when Clarence was said to have 'no continuing relevance'.
The mens rea of the offence of wounding or inflicting grievous bodily harm is that this must be done 'maliciously'. This does not mean that it must be established that any acts were carried out with ill will or hostility but the courts have indicated what the word means so we need to take note of what they have said. The approach was set by the Court of Appeal in R v Cunningham(1957) The accused was charged with an offence under a different part of the OAPA 1861 but the word 'maliciously' and its meaning became an issue. The appellant tore out a gas meter from a wall in order to steal the money in the meter. Gas escaped, seeping through cracks in the wall to the neighbouring property, where his future mother-in-law was sleeping and was poisoned by the gas. The Court of Appeal stated that the use of the word 'maliciously' meant that the defendant had intended to inflict harm or had realised that there was a risk of the particular harm occurring but had gone ahead anyway (i.e. subjective recklessness).
Needless to say it was not long before the matter of proving foresight of serious harm became an issue. In R v Mowatt (1968) where the defendant was found sat astride the victim repeatedly punching him in the face. Perhaps making it easier to question what the accused thought might happen? The Court of Appeal settled the matter by deciding that foresight of a high degree of harm need not be proved and that it was enough to show that the accused must have foreseen that some harm would occur. This approach was followed in DPP v A (2000) when the Divisional Court found that the magistrates had given the wrong meaning to the word 'maliciously' where the defendant had injured his friend playing a game with air pistols. The correct basis being that the defendant had foreseen some harm but had gone on to take the risk resulting in his friend being shot in the eye. Fortunately the law now seems to have been settled by the cases of Savage and Parmenter (1992). In Savage the defendant threw a glass of beer over the victim in a pub. The glass slipped out of her hand and broke and cut the victim's hand. The House of Lords ruled that it was sufficient that the accused forsesaw some harm for a conviction under section 20. In Parmenter the accused was convicted of several counts of GBH under Section 20 by injuring his baby son's legs through rough handling. On appeal his convictions were substituted by a Section 47 conviction for causing actual bodily harm.
We now turn to malicious wounding or grievous bodily harm under Section 18, which many recognise as being one of the more serious assaults. At first sight there seems to be a striking resemblance between the two offences under Section 20 and offences under Section 18 but there are important differences. The wording ‘wounding’ and ‘grievous bodily harm’ have similar meanings and we have already noted the apparent inconsistency in the law in this area in terms of the level of harm required.
The maximum sentence under Section 18 is life imprisonment.
The actus reus happens when the defendant wounds or causes grievous bodily harm to the victim by any means. On the face of it, the word 'causes', widens the actus reus – more so than Section 20 where the courts have at times had to give consideration to the meaning of the word ‘inflicts’.
The mens rea consists of the defendant intending to cause grievous bodily harm or intending to resist arrest or prevent an arrest. There is no such thing as a reckless Section 18 offence. This is a reflection on the seriousness of the Section 18 offence of wounding with intent. The seriousness requires the highest level of mens rea which is intention and this is also reflected in the life sentence.
Intention is to be applied in a similar manner as for murder. The courts have spent time considering what amounts to intention and the prosecution must show (in the absence of evidence of direct intention) that the defendant foresaw as a virtual certainty the consequence of his actions 'foresight of consequences' and that he realised the risk of serious harm (Woollin 1998).
Another distinction is the use of the word 'causes' and the possibility that some judges may have taken the view that 'causes' has a wider meaning than 'inflict' under section 20. Maybe this approach may have been encouraged partly by the use of the words 'by any means whatsoever...' in Section 20. In R v Mandair (1995) the accused returned home in a bad mood and in frustration threw a bottle of cleaning fluid at his wife. The cleaner contained an acid and the substance badly injured her face. The House of Lords accepted that an infliction does not require proof of an assault or a battery. The House confirmed that it was open to a jury to convict the accused of inflicting grievous bodily harm under Section 20 instead of causing grievous bodily harm under Section 18. In Burstow it was Lord Steyn who stated that although the words cause and inflict were not synonymous , there was no radical divergence between the meaning of the words in the context of the OAPA 1861.
As regards the nature of the harm grievous bodily harm this can include serious psychological harm (R v Meachen 2009).
It is just as well that the courts have arrived at this broader approach bearing in mind the problems that have occurred with the cases involving the transmission of sexually transmitted diseases including HIV. In R v Dica (2004), Dica had infected two women with HIV after he persuaded them to have unprotected sex. Dica did not tell either woman that he was infected. Dica was charged with causing grievous bodily harm under section 20 and was sentenced to 8 years imprisonment.
The problems with language with this piece of legislation are well documented and this area of the law has been reviewed by the Law Commission. As long ago as 1993 the Commission reported in detail and put forward draft legislation with the intention of modernising the law and incorporating practical suggestions for improvement.
The Law Commission saved its most severe criticisms for the Offences Against the Person Act 1861 in its report Legislating the Criminal Code Offences Against the Person and General Principles in November 1993. Sections 18 and 20 were mentioned specifaclly.
The Law Commission put forward proposals which included:
the replacement of the 1861 Act by more comprehensible language;
that any reform such clear up many of inconsistencies so that juries and magistrates can properly use the definitions to decide cases. The Commission here referred to the unfortunate string of cases which included Mowatt (1968) in which the Court of Appeal suggested that in section 18 the word”maliciously” added nothing; Savage and Parmenter (1992) in which the House of Lords confirmed that the mens rea comprised of the word “maliciously”;
the reforms should put the law on the footing of statute law thus avoiding the inconsistency and complexity of the case law (common law) not to mention the time taken at trial to make sure no mistakes were made; the Law Commission put as their main argument for this was that it was wholly unsatisfactory that it was felt necessary for the terms of the Act to be translated, or actually replaced by more comprehensible language;
that it cannot be right that parts of a statute are so misleading that the sections cannot be safely be mentioned to the jury;
that such an important area of law intended to deal with violent offences should not be left to the common law because despite the work done by the judiciary it still rested upon such an outdated and unsatisfactory statute;
that the offences of assault and battery, actual bodily harm (S47), grievous bodily harm (S20), and grievous bodily harm with intent (S18) be replaced as follows:
Assault (one new offence)
Intentional or reckless injury replacing actual bodily harm
Reckless serious injury would replace Section 20 OAPA but with a maximum sentence of 7 years to reflect its real seriousness
Intentional serious injury would replace section 18 OAPA and the sentence would remain as life imprisonment.
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