Crime XXXXXXXXXV – s.18 and s.20 of the Offences Against Person Act (1861) I
The
offences of wounding and causing GBH (grievous bodily harm) are to be
found in s.18 and s.20 of the Offences Against Person Act (1861). The sections
read as follow: -
s.18
“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, and being convicted thereof shall be liable . .
. to be kept in penal servitude for life . . .”
s.20
“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 misdemeanor, and being convicted thereof shall
be liable . . . to be kept in penal servitude . . .”
Between
the two, s.20 is the lesser offence and s.18 is the more serious offence and an
offender if convicted under s.18 can be kept in prison for life.
The
mens rea (mental element) to obtain a conviction under s.20 is as follows: -
1. Intention
2. Recklessness
The
test to obtain a conviction under s.20 of the Offences against Person Act
(1861) is subjective see R v Savage (1991).
In
R v Savage (1991) the defendant threw a glass of beer at her husband’s
ex-girlfriend, but the glass slipped from her hand and resulted in serious
injury to the victim. The defendant was tried and convicted for maliciously
causing grievous bodily harm to another under s.20 of the Offences Against the
Person Act (1861). The victim appealed on the grounds that the word malicious
required intent and the defendant had not intended to cause the victim the kind
of harm or injury that resulted from her actions.
The
trial judge had failed to inform the jury that the test to convict under s20.
of the Offences Against the Person Act (1861) was subjective and the jury had
to establish intent before it could convict under s20. However, given the facts
it was possible to convict under s.47 of the Offences Against the Person Act
(1861), if the defendant could foresee that some harm would result from her actions
albeit not the exact type of harm or injury that resulted. The matter was
referred to the House of Lords.
The
matter before the House of Lords was whether: –
1. It
was possible to substitute a s.20 conviction for a s.47 conviction when there
was no intent, or the subjective test was not satisfied? The answer is yes, and
it is possible to substitute a s.20 conviction with a s.47 conviction on a
count of causing grievous bodily harm (GBH) when the element of intent cannot
be satisfied.
2. A
conviction under s.47 simply required Actual Bodily Harm (ABH) i.e. minor
injuries, bruises, cuts and wounds and proof of an assault. Silence can
constitute an assault see R v Ireland (1997) and recognized psychiatric
illnesses are also classed or categorized as physical injury see R v Ireland
and Burstow (1997).
3. In
order to convict under.20 the defendant must foresee the consequences of his or
her actions regardless of the severity of the harm or injury that resulted.
In
R v Parmenter (1991) the defendant was convicted on four counts of causing
grievous bodily harm to his infant son. The types of injuries included bruises,
broken bones and aberrations. The judge directed the jury to convict under s.20
of the Offences Against Person Act (1861) if they believed that the defendant
ought to be aware (objective) or should be aware that his actions would cause
his infant son some form of injury. The jury convicted, and the defendant
appealed on the grounds that in order to convict under s.20 the defendant must
have foresight of the consequences (subjective) or must be aware that his
actions would harm his son (subjective).
The
defendant’s argument was that he did not know that the manner in which he
handled his son would cause him physical injury or was unable to appreciate
that his manner of handling his son would cause him physical injury.
The
court held that the test to convict under s. 20 of the Offences Against the
Person Act (1861) was subjective i.e. the defendant must be able to foresee the
consequences of his actions and substituted the conviction for a conviction
under s. 47 of the Offences Against Person Act 1861 (a lesser offence) where it
sufficed that the defendant foresaw or could anticipate some form of harm.
Copyright
© 2019 by Dyarne Ward
Comments
Post a Comment