By Law Teacher
4.2.1 Wounding and GBH – Introduction
Welcome to the fourth topic in this module guide – Non-Fatal Offences Against the Person! Non-Fatal Offences Against the Person encompass a range of offences where a person is caused some harm, but the harm does not result in death. There is a gradient scale of offences based on the level of harm caused to the victim and the level of intent demonstrated by the defendant. Each of these offences has their own actus reus and mens rea and are accompanied by charging guidelines as to the type of injuries they encompass. All of these elements must be considered when looking at a possible offence.
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.
Goals for this section:
- To understand the actus reus and mens rea components of grievous bodily harm and wounding.
- To appreciate the charging and sentencing guidelines for each of the offences mentioned above.
Objectives for this section:
- To appreciate the delineation between the offence of grievous bodily harm under section 20 and section 18 of the Offences Against the Person Act 1861.
- To be able to identify the type and level of harm encompassed by grievous bodily harm and wounding which can be ascertained by referring to case studies in this field.
- To be able to grasp the variance between the Charging Standards and the binding legal definition of a wound.
- To be able to analyse and evaluate the nuances of all the non-fatal offences, as required in an examination.
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 (OAPA 1861).
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. 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 wholly objective.
Cases in Focus
If the injuries are serious and permanent then they will amount to GBH, however permanence is not a pre requisite of GBH.
The CPS Charging Standards do offer some guidance as to the type of injuries that may amount to GBH.
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.
Case in Focus
R v Bollom  EWCA Crim 2846
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.
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.
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.
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.
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.
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 contact, 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.
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
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, 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.
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 OAPA 1861 and held it to mean intention or subjective recklessness.
Case in Focus
R v Cunningham  2 QB 396
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
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
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 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 magistrates or crown court. 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; 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.
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. 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.
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.
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.
3.3 Charging and Sentencing
The offence is indictable only which means it must be heard and sentenced at crown court. The s.18 offence carries a maximum life imprisonment sentence.
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 1980 have established that a person may give valid consent to GBH, but only where it is in the public interest for them to do so.
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.
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.
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.
4.2.3 Wounding and GBH Lecture – Hands on Example
The following scenario will test your knowledge of the s.18 and s.20 offences and your ability to apply the two provisions and the surrounding case law in a practical setting.
Read over the following passage and have a go at identifying the material facts and legal issues. Highlight key information as you go and jot down any ideas, or relevant law that comes to mind as you read. If you feel ready, then once you have finished reading you can have a go at producing an answer to the question.
If you read the question and don’t know where to start, then don’t panic! You’re not ready to go it alone just yet, but that doesn’t mean you never will be. Answering these types of questions does take practice and if this is the first time you have done it then you will find it hard. A guideline answer is provided below, outlining the key points you should be addressing. Have a look at the worked example answer and use this to help you put together your own answer, or to check over the answer you have already produced.
Max is a notorious drug dealer operating in the Sneinton area of Nottingham. He is owed money by Jackson and Jackson has not paid up. Max wants to set an example that he does not mess around when it comes to paying up debts and wants to give Jackson a real fright. That night Max drives to Jackson’s house armed and fires 4 bullets through Jackson’s bedroom window knowing this will terrify him. The curtains were closed and Jackson is standing near the glass at the time and is hit in the shoulder by one of the bullets causing a large cut, damage to the shoulder bone and muscle, and severe loss of blood.
Unaware that he has hit Jackson, Max drives off, feeling certain that after this fright Jackson will definitely pay up his debt. Max makes his way to the local Pub to meet his two friends Joe and Ben to celebrate. When he arrives he sees that Darryl, a rival drug dealer from Hyson Green has turned up with his gang. Max is furious that they have dared to come onto his patch and immediately confronts them. Before they have chance to do anything Max jumps on Darryl and throws repeated punches causing him to be severely bruised and breaking his jaw bone, leaving him in a great deal of pain. Max and his friends quickly flee the scene as the police are on their way.
A group of local girls were at the pub and knew of Max and his tough guy reputation. Danielle in particular is very attracted to Max and after seeing the testosterone fuelled fight she is overcome with desire for him. After Max leaves the scene Danielle finds him and tries to seduce him. Max is at first reluctant to go back to Danielle’s with her as he recently had sexual intercourse with a girl called Janice and has since found out that Janice has HIV. Max is worried he might have been infected. Danielle’s advances however soon prove to be too much and Max is overcome with sexual urge. In the heat of the moment Max does not bother to stop to put a condom on and the two of them engage in unprotected sexual intercourse. Two weeks later Danielle is informed by her doctor that she has contracted HIV.
Discuss the liability of Max in relation to s.18 and s.20 of the Offence Against the Persons Act 1861.
Type of Harm
•GBH: Smith ‘really serious harm’
•Wounding: Eisenhower‘break in both layers of the skin’
•Both these types of harm are shown on the facts in relation to the injuries Jackson sustains for the gunshots.
•s.18 intent to cause GBH
•Unlawfully wounding or causing GBH. This is satisfied on the facts as Max has fired the weapon and hit Jackson. Applying the usual principles of causation it can be seen that Max has both wounded Jackson and caused Jackson to suffer GBH.
•Max’s intention was to scare Jackson, not to turn him. However, applying the definition of oblique intent in Woollin, the intention may be established where it can be shown the this was a virtually certain consequence of Jackson’s actions.
•On the facts this is unlikely as Max could not have known with any level of certainty whereabouts Jackson was in the house at the time he fired the weapon as the curtains were closed. Therefore, intention and thus a s.18 offence cannot be established on the facts.
•s.20 reckless as to whether GBH would be inflcited or Jackson would be wounded.
•As there is both wounding and GBH on the facts it is not necessary to enter into a discussion of ‘inflicting’ as the wounding will suffice for the purposes of s.20.
•Following Cunningham and Parmenter this means either intent or a subjective appreciation of the risk of harm and being reckless as to that harm occurring.
•Mowattstates that Max only needs to be reckless as to some harm occurring, not necessarily the level of harm that did occur. DPP v A further states that Max only needs to acknowledge a risk that the harm might occur, and not that it would occur.
•Max discharged a weapon into a house at night which was highly likely to be occupied and one in which he in fact intended to be occupied. It is highly likely that as an adult of full intelligence that he appreciated this would give rise to a risk that some harm might occur which is therefore sufficient to satisfy the mens rea for the s.20 offence.
On the facts, Max will be liable for a s.20 offence in relation to the gunshot injury sustained by Jackson.
Type of Harm
•Following the CPS Charging Standards this would be classed as GBH and thus fulfil the Smithdefinition of ‘really serious’ harm. On the facts, there is no break in Darryl’s skin so following the Eisenhowerdefinition, there is no wound.
•s.18 intent to cause GBH
•Max unlawfully cased Darryl to suffer GBH.
•Intent to cause GBH. This is easily established on the facts as Max’s intention when punching Darryl is not contentious.
Max will therefore be liable for a s.18 offence in relation to punching Darryl.
Type of Harm
•HIV is ‘really serious’ as per the Smith definition of GBH. Further Dica is authority that HIV will be classed as GBH.
•There is no wound caused.
s.18 Intent to cause GBH
•Max caused Danielle to suffer GBH by her contracting the infection from him.
•Intent is not established as he did not intend to cause her harm when engaging in sexual intercourse. Woollinoblique intention will not suffice as Max was not certain as to whether he had gonorrhoea himself so it was by no means virtually certain he would give it to Danielle.
s.20 Reckless as to inflicting GBH
•Dicaestablishes that passing on a sexually transmitted disease through intercourse is properly classed as inflicting for the purposes of the offence.
•Applying Adaye, Max does not need to be sure that he has the disease as him being aware that there is a risk he has contracted it is sufficient.
Max will accordingly be liable for the s.20 offence in relation to transmitting HIV to Danielle.
•For extra marks: In relation to possible consent by Danielle, Dicaestablishes that although she consented to the unprotected intercourse her consent will be invalid as she was not aware of the specific risk of contracting HIV. Therefore, this will not negate the unlawfulness of the infliction of harm.