S.18 and S.20 of the Offences Against Person Act (1861) (Summary)

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 S. 20 of the Offences Against the Person Act (1861) was subjective and the jury had to establish intent before it could convict under S. 20. 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 S. 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.

The mens rea (mental element) to convict under S. 18 of the Offences Against Person Act is as follows: –

1. Intention to cause GBH (grievous bodily harm)

and/or

2. With intent to resist or prevent the lawful apprehension or detainer of any person.

s.18 convictions are reserved for more severe or serious offences which is made evident by the penalty that is imposed.

The test to determine intention is provided in Section 8 of the Criminal Justice Act (1967) – proof of criminal intent. A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In order to obtain a conviction under S. 20, the prosecution needs to satisfy the four components that make up the actus rues (physical element). They are as follows:

1. The act must be unlawful

2. Wounding

or

3. Inflicting/Causing grievous bodily harm (GBH)

4. On another person.

1. The unlawful act:- In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.

With reference to children any punishment that is imposed must only be to the extent that it is reasonable and anything beyond that may lead to criminal charges.

In R v Hopley (1860) the defendant was a schoolmaster who was charged with causing the death of one his pupils which was brought about or precipitated by excessive punishment.

It was held that a parent or a guardian may punish a child provided that it doesn’t go too far and it is done with the intention of correcting the child and not for the gratification of passion or rage

S. 58 of the Childrens Act 2004 elaborates further on the subject-

Reasonable punishment

(1) In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2) The offences referred to in subsection (1) are—

(a) An offence under section 18 or 20 of the Offences against the Person Act 1861 (wounding and causing grievous bodily harm);

(b) An offence under section 47 of that Act (assault occasioning actual bodily harm);

(c) An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16).

(3) Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4) For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.

(5) In section 1 of the Children and Young Persons Act 1933, omit subsection (7).

Section 1 (1) of the Children and Young Persons Act 1933 reads as follows:-

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, willfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor, and shall be liable—

(a) On conviction on indictment, to a fine . . . or alternatively . . . or in addition thereto, to imprisonment for any term not exceeding ten years;

(b) On summary conviction, to a fine not exceeding £400 pounds, or alternatively . . . or in addition thereto, to imprisonment for any term not exceeding six months.

2. Wounding is defined as a break in the skin. In Moriarty v Brookes (1834) a publican tried to evict a customer who was causing a disturbance and refused to leave. The publican put his arm around the man’s shoulders and tried to evict the man and in doing so injured him below the eye (there was a cut in the skin which resulted in bleeding).

‘If the violence which occurred took place in an endeavor by the defendant to turn the plaintiff out of the house, the third plea is proved. However, this plea does not profess to justify any wounding; therefore, if there was a wound, the plaintiff is entitled to recover for that. It is proved that the plaintiff was cut under the eye, and that it bled; and I am of opinion that, that is a wound.’

The publican was found guilty and was deemed to have used too much force or excessive force.

If there is no break in the skin for example there is only a rapture of internal blood vessels, then as far as s. 18 of the Offences Against Person Act (1861) is concerned, it will not amount to or be classed or categorized as a wounding.

In JJC v Eisenhower (1984) the defendant, a minor, fired multiple rounds with an air-gun at a group of people and another minor in the group sustained injuries when he was hit by a pellet from the air-gun in the face and it caused the blood vessels below the surface of the skin to rupture. The defendant was charged under s.18 of the Offences Against Person Act (1861) and the question before the court was whether a s. 18 wounding requires a break in the skin.

The court decided that a conviction under s.18 of the Offences Against Person Act (1861) requires actual wounding i.e. a break in the continuity of the skin and even a scratch, for that matter, would not suffice.

Likewise a defendant cannot be found guilty of causing or precipitating a psychiatric illness under s. 18, because while psychiatric illnesses are recognized as physical injuries there is no break in the continuity of the skin but the defendant can be convicted under s. 47 of the Offences Against Person Act 1861 see R v Ireland (1998).

3. Grievous Bodily Harm. Grievous bodily harm is defined as serious harm to another person or harm that is above or more serious than actual bodily harm (ABH).

In DPP v Smith (1961) – Smith had stolen some goods and loaded it to the back of his car. A policeman ordered him to stop but he drove off instead and the policeman jumped on to the back of the car in order to stop him. The policeman was subsequently throw off from the back of the vehicle, into the path of other oncoming vehicles and died as a result. The defendant was tried and convicted. The defendant appealed.

The House of Lords unanimously upheld the conviction. In doing what he (Smith) did, he must, as a reasonable man have contemplated that serious harm was likely to occur. Hence, he is guilty of murder.

The test in DPP v Smith (1961) is as follows: – If the jury is satisfied that he (Smith) must as a reasonable man have contemplated that grievous bodily harm (GBH) was likely to have resulted to the policeman from his actions and such harm did in actual fact occur, then the accused is guilty of murder. On the other hand, if the jury is satisfied that he (Smith) could not have contemplated that the policeman would incur grievous bodily harm (GBH) as a result of his actions then the verdict would be guilty of manslaughter.

The test in DPP v Smith (1961) was supplanted by Section 8 of the Criminal Justice Act (1967) – Proof of criminal intent.

A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

When assessing whether the injuries amounted to GBH or otherwise the jury is entitled to take into account the characteristics peculiar to the victim including his or her age. In R v Bollom (2004) the defendant inflicted injuries on his partner’s seventeen-month old baby and while the injuries would not have constituted grievous bodily harm (GBH) if inflicted on an adult, the same injuries when inflicted on a child could constitute grievous bodily harm (GBH). The jury took into account of the fact that the victim was a baby and convicted the defendant for causing grievous bodily harm (GBH).

The defendant appealed on the grounds that when deciding whether any injury (injuries) constituted grievous bodily harm (GBH), the jury should not take into account the age and characteristics of the victim.

The court of appeal held that when deciding whether an injury (injuries) amounts to grievous bodily harm (GBH) the jury is entitled to take in account the victim’s age, sensitivities, and characteristics. However, because not all the injuries that were sustained by the victim were a result of the defendant’s actions the conviction was substituted for a S. 47 conviction or actual bodily harm (ABH). It is possible to substitute a S. 20 conviction with a S. 47 conviction see R v Savage (1991) and R v Parmenter (1991). The test to determine whether a defendant is guilty of a S. 47 offence is objective.

It also worth keeping in mind S. 58 (4) of the Childrens Act 2004 – For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861”.

S. 58 (3) of the act reads as follows: –

“Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the grounds that it constituted reasonable punishment”.

When assessing the nature of the injury (injuries) the jury is to take into account all factors and whether the injury (injuries) amount to GBH or otherwise is to be determined by taking into account ordinary standards of usage and experience and this direction is in line with Section 8 of the Criminal Justice Act (1967).

In R v Brown and Stratton (1997) the defendant and his cousin were embarrassed by the defendant’s father who was undergoing a gender reassignment and turned up at the defendant’s workplace wearing a dress. Both the defendant and his cousin after a drinking bout, went over to the where the defendant’s father was staying, and assaulted her inflicting numerous injuries including a broken nose, a concussion and knocked out several teeth. The defendants pleaded guilty to causing actual bodily harm as per S. 47 of the Offences Against Persons Act (1861) and not grievous bodily harm (GBH) as per S. 18 of the Offences Against Person Act (1861).

The trial judge directed the jury to consider the injuries from the perspective of the victim and if the victim would consider the injuries that she’d sustained as serious and the defendants were accordingly convicted for causing grievous bodily harm (GBH) under S. 18 of the Offences Against Persons Act (1861). The defendants appealed.

It was held that while there was a mis-direction (the direction to the jury), it did not by itself render the conviction unsound.  Taking into account the fact that the defendants were intoxicated at the time the S. 18 conviction was substituted for a S. 20 conviction of the same act.

Grievous Bodily Harm includes psychiatric illnesses. However an action for causing a psychiatric illness is best brought under S. 20 of the Offences Against Person Act (1861) because a S. 18 conviction of the same act requires a break in the continuity of the skin see JJC v Eisenhower (1984).

In R v Ireland and Burstow (1998) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

It was decided that: –

1.     Words are sufficient to constitute an assault. In fact, silence alone for example in instances where the caller calls the victim and remains silent can constitute an assault – the proposition … that words cannot suffice is unrealistic and indefensible. With reference to phone calls – that fact that the caller calls and remains silent to cause fear and intimidation is sufficient to constitute an assault – Lord Steyn see R v Ireland (1998)

2.     Psychiatric illness (injury) does fall under the scope of bodily harm or can be classified or categorized as bodily harm (whether it is actual bodily harm or grievous bodily harm most likely depends on the severity of the offence, keeping in mind that it is possible to substitute a S. 20 conviction for a S. 47 conviction)

3.     Inflict – the word inflict includes both direct and indirect harm and it could either be intentional or due to the defendant’s recklessness. In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of those that were in attendance were injured when they rushed out.

It was held that the defendant, regardless of the fact that he was merely playing a prank, must be deemed to have intended the consequences of his actions and he was found guilty accordingly.

In R v Wilson (1984) the defendant hit a pedestrian (the victim) with his vehicle and a heated argument subsequently ensued during the course of which the defendant punched the victim.

It was held that ‘grievous bodily harm may be inflicted, either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, it does directly result in force being directly applied violently to the body of the victim so that he suffers grievous bodily harm’

With regards or reference to psychiatric illnesses, inflict is construed as causing or precipitating the illness and does not require proof of assault or battery and nor does it require direct or indirect force. The defendant’s persistent and often repeated actions can be construed as inflicting, when the psychiatric illness does occur.

In R v Burstow (1997) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

The questions before the courts were as follows: –

1.     Are words alone sufficient to constitute an assault and

2.     Does psychiatric illness (injury) fall within the scope of S. 18, S. 20 and S. 47 of the Offences Against the Person Act 1861 and can it be defined as bodily harm.

It was decided that on: –

1.     Words are sufficient to constitute an assault.

2.     Psychiatric illness (injury) does fall under the scope of bodily harm or can be classified or categorized as bodily harm.

Copyright © 2019 by Dyarne Jessica Ward