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 Person Act 1861. GBH means really serious harm, but a wound need not be serious.
Examination Point
As with any problem question on non-fatal offences against the person, make sure that you read the question in full first and check that the victim does not die as a result of the harm. Answering a homicide question in terms of s.18 and s.20 offences is an easy way to lose marks in an exam and one which can be avoided!
1.0 Type of Harm
To understand the charges under each section first the type of harm encompassed by these charges must be established.
1.1 GBH
DPP v Smith [1961] AC 290 explained that GBH should be given its ordinary and natural meaning, that is really serious harm. R v Brown and Stratton [1998] Crim LR 485 confirmed that the jury assesses whether the injuries, taken together, amount to really serious harm. The test is objective but the victim’s age and health can be relevant. Accordingly, as there is no strict legal test as to ascertaining what really serious harm is, it is necessary to look to case studies for guidance.
Case in Focus: R v Brown and Stratton [1998] Crim LR 485
This case exemplifies the type of harm that will be considered as GBH. In this case the defendant’s father had undergone gender reassignment treatment to become a woman. She turned up at her son’s work dressed in female clothes and he was humiliated. After work the defendant and his cousin went over to his father’s house and attacked her, breaking her nose, knocking out three teeth, causing a laceration over the one eye, a concussion and heavy bruising. The Court of Appeal held these injuries were justly described as GBH. It substituted section 20 convictions for the section 18 convictions because of the direction on intent.
R v Ireland and Burstow [1997] UKHL 34 clarified that the harm does not have to be physical and that a serious psychiatric injury could amount to GBH.
If the injuries are serious and permanent then they will amount to GBH, however permanence is not a pre requisite of GBH. Temporary injuries can be sufficient.
The CPS Charging Standards do offer some guidance as to the type of injuries that may amount to GBH. They identify life-changing injury and the need for significant or sustained medical treatment as examples. Depending on their severity, the following injuries may qualify:
- A substantial loss of blood, usually requiring a transfusion
- Those which require lengthy medical treatment or result in a period of incapacity
- A permanent disability or loss of sensory functions
- A permanent visible disfigurement
- Serious fractures of the cheek bone, jaw or ribs
- Dislocations or skull fractures causing really serious harm
It can be seen from the list above that a diagnosis such as a broken bone does not automatically establish GBH. The focus is on the impact of the injury on the victim. This is because, as confirmed in R v Bollom [2003] 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 that this will encompass.
Case in Focus: R v Bollom [2003] EWCA Crim 2846
The defendant was convicted of causing grievous bodily harm with intent after a 17-month-old child suffered cuts and bruises. The Court of Appeal substituted a conviction for assault occasioning actual bodily harm. The jury had not been directed that it must be sure the injuries relied on together were inflicted in one assault for which the defendant was responsible. On the relevance of the child’s age, Fulford J stated at paragraphs 52 and 53 “To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context”
To explain this reasoning further, an injury that is painful but not really serious for a fit and healthy 20-year-old may have much more serious consequences for a 6-week-old baby or a frail 80-year-old. The question is the seriousness of the injury actually caused to this person.
In light of these considerations, the correct approach is therefore to conduct an independent assessment of all the facts on a case by case basis.
1.2 Wounding
JJC v Eisenhower [1984] QB 331 defines wounding as the breaking of both layers of the external skin: the dermis and the epidermis. In this case an airgun pellet struck the victim near the eye and caused internal bleeding. The ruptured blood vessel did not constitute a wound as the external skin was still intact.
This definition may seem surprising as it does not follow the usual understanding of wound which implies a more serious level of harm than a mere split in the skin, for which a pin prick could qualify. Under the CPS Charging Standard, superficial cuts will usually justify a charge of common assault or battery. A cut requiring stitches may justify a charge under section 47. Where a knife is used to wound, a section 20 or section 18 charge is almost always appropriate, depending on the evidence of intent. The charging decision does not alter the legal definition of a wound.
Examination Point
In a problem question make sure to establish this point where a minor wound occurs as you need to show the examiner that you appreciate the difference between the Charging Standards and the binding legal definition of a wound.
Examination Point
Wounds are a separate concept to GBH and do not need to be ‘really serious’ so don’t confuse the two.
For an essay question you may be asked whether you feel the two should be charged under the same offence given the difference in severity. Consider that on a literal interpretation a paper cut through both layers of skin could constitute a wound which is clearly vastly less serious than the level of harm encompassed by GBH so it seems wrong that they are classed as equally serious for the purposes of charging! Looking to the enactment year of the Offences Against the Person Act, which was back in 1861, provides some explanation as to why the two are treated with the same severity. Back then infection was common as neither tetanus vaccination nor modern antibiotics was available, and people did not possess the knowledge of sterilisation, sanitation and treating wounds that we hold at present. Often such injuries did get infected and lead to death. However, today this is not the case and it is unusual for such wounds to escalate to that scale.
2.0 Section 20
Section 20 of the Offences Against the Person 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 …” The distinction between felony and misdemeanour was abolished by section 1 of the Criminal Law Act 1967.
2.1 Actus Reus
The actus reus of this offence can be broken down as follows:
- Unlawfully
- (i) Wound, OR; (ii) inflict GBH
- on another person
Unlawfully
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. For example, surgery may be lawful where the patient consents, or where treatment is lawfully given in the best interests of a patient who lacks capacity.
Wound
Applying the Eisenhower definition this element is satisfied if the defendant’s conduct breaks the full thickness of the skin.
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.
Examination Point
Pay attention to this section as for an essay question you may be asked to provide a discussion as to the meaning of ‘inflict’.
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. For example, hitting them or pushing them would suffice but chasing them and causing them to run into a wall or fall into a pit would not. This was the situation until R v Martin (1881) 8 QBD 54. In this case the defendant put a metal bar across a theatre exit and turned off the lights on the staircase as people were leaving. A panic followed. 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 the indirect infliction of the injuries was sufficient.
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 [1984] 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. Lord Roskill set out that GBH may be inflicted either where the defendant has directly and violently assaulted the victim, or where the defendant has inflicted it by intentionally doing an act which, although it is not in itself a direct application of force to the body of the victim, it directly results in force being applied to the body of the victim, so that they suffer grievous bodily harm.
Following Ireland and Burstow it is clear that 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 [1997] UKHL 34
This was a joined appeal of the defendants Mr Ireland and Mr Burstow. The facts of the cases of both men were similar. Focusing on the facts of Mr Burstow’s case, the defendant had become obsessed with a woman and began stalking her, making silent and abusive telephone calls, taking photographs of her and her family without their knowledge and distributing offensive cards in her street. His disturbing and relentless behaviour caused the victim to suffer a severe depressive illness.
The defendant was charged with the s.20 offence but argued that he had not ‘inflicted’ the GBH suffered by his victim on her in accordance with the Wilson understanding of the term as he had at no point applied any force to her, either directly or indirectly. In rejecting his appeal, the House of Lords extended the definition of inflict to situations where no physical force had been applied to the victim.
Accordingly, grievous bodily harm can be inflicted without an assault or any application of physical force. The prosecution must prove that the defendant caused the really serious harm.
Despite being originally held not to be so in the case of R v Clarence (1888) 22 QBD 23, following R v Dica [2004] 3 ALL ER 593 ‘Inflict’ now also encompasses the transmission of sexual diseases, such as HIV, where these are serious enough to be constituted as GBH, and the defendant actually transmits the infection and is reckless as to the risk of transmission. Consent to sex alone is not informed consent to that risk. A formal diagnosis is not essential if the evidence establishes the defendant’s awareness (R v Adaye (2004) unreported). R v Marangwanda [2009] EWCA Crim 60 was an appeal against sentence following guilty pleas to section 20 offences. The basis of plea was that the defendant had transmitted gonorrhoea to two children through poor hygiene while caring for them. Reckless transmission need not 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 [1957] 2 QB 396 considered this in relation to the Offences Against the Person Act 1861 and held it to mean intention or subjective recklessness.
Case in Focus: R v Cunningham [1957] 2 QB 396
The appellant ripped a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring property where his future mother-in-law was sleeping and was poisoned by the gas. He was charged under section 23 with maliciously causing a noxious thing to be taken so as to endanger life. The section also covers infliction of grievous bodily harm. At trial the judge directed the jury that ‘malicious’ meant wicked and the defendant was convicted. He appealed on the basis of a misdirection and it was held that ‘malicious’ is properly defined as possessing an actual intention to cause the harm or subjective recklessness as to whether such harm should occur or not.
This was affirmed in the case of R v Parmenter [1991] 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 [1991] 94 Cr App R 193
The defendant was not familiar with being around children and had no idea how to handle a young baby. Tragically he caused serious injuries to the bone structures in the limbs of his infant son and, as a result of the heavy way he had handled him, and he was convicted on four counts of causing GBH under s.20. As the defendant was not used to handling the child he had no idea his conduct would cause the child harm.
At trial the judge directed the jury that they must convict if the defendant should have foreseen that the handling of his infant son would result in some harm occurring to the child. The defendant appealed contending that it was necessary to establish a subjective appreciation of the risk and not an objective ruling that he should have foreseen the risk of injury. The section 20 convictions were quashed and convictions under section 47 were substituted. The House of Lords held that the correct interpretation of ‘maliciously’ for the purposes of s.20 is intent or a subjective appreciation of the risk of harm and being reckless as to that harm occurring.
Obiter in R v Mowatt [1968] 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 [1968] 1 QB 421
The defendant struck the victim in the face during an incident involving a robbery. He was charged under s.18 OAPA 1861 and convicted of the alternative offence under s.20. In offering a direction as to the s.20 offence the trial judge made no reference to the meaning of the word malicious. Accordingly, the defendant appealed. It was held on appeal that in the circumstances it was unnecessary to define malicious as harm was clearly intended. Diplock LJ explained the meaning of malicious under s.20 at page 426,
"In the offence under Section 20, and in the alternative verdict which may be given on a charge under Section 18, for neither of which is any specific intent required, the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by "the particular kind of harm" in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the Section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”
This obiter was confirmed in R v Savage [1991] 94 Cr App R 193.
Case in Focus: R v Savage [1991] 94 Cr App R 193
The defendant was out in the pub when she saw her husband’s ex-girlfriend. There was a lot of bad feeling the two women and the defendant was unhappy to see the her. Intending to humiliate her, the defendant threw the contents of a drink over the victim. On her account the glass slipped out of her hand. It broke, cutting the victim's wrist. The defendant made it clear that it was never her intention to actually throw the glass or harm the victim in anyway. At trial the judge directed the jury incorrectly, stating that ‘malicious’ meant that the unlawful act was deliberately aimed towards the victim and resulted in the wound. On this basis the jury convicted and the defendant appealed. The Court of Appeal held this was a misdirection as it did not correctly state that malicious included recklessness and that this is decided subjectively. The Court of Appeal referred the question to the House of Lords as to whether it was necessary under s.20 to establish that the defendant intended or was reckless as to the infliction of GBH or whether it was sufficient that the defendant foresaw some harm. The House held that It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended some harm or actually foresaw the risk of some harm and went on to take that risk. The substituted section 47 conviction stood.
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 an intention to cause some harm or the conscious taking 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 the magistrates court or crown court, depending on the seriousness of the specific offence and the defendants wishes. It carries a maximum sentence on indictment of five years’ imprisonment. The separate racially or religiously aggravated form carries a maximum of seven years (Crime and Disorder Act 1998, section 29).
3.0 Section 18
Section 18 of the Offences Against the Person 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:
- Unlawfully
- (i) wound or (ii) cause any GBH
- On another person
These criteria are satisfied in the same way as for the s.20 offence, with 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. As Ireland and Burstow establishes, section 20 does not require a direct application of force either.
3.2 Mens Rea
Maliciously, with;
(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. For example, punching someone in the face, intending to break their nose. However, following R v Woollin [1999] AC 82 the jury can find intention where although the result was not the exact desired consequence held by a defendant, the result was a virtually certain consequence of his act, barring some unforeseen intervention, and the defendant himself appreciated that fact. This is known as indirect or oblique intention. For example, a defendant punches a thin pane of glass that the victim is standing behind, intending to break the glass but realising that in doing that it is virtually certain that the glass will cause the victim really serious injury, even though this is not his primary intention. In finding whether that particular defendant foresaw the GBH as a virtually certain consequence of his actions, the jury are required to make this decision on an assessment of all of the evidence put before them.
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 based on this limb, the defendant must have intended really serious harm (R v Taylor [2009] EWCA Crim 544). The alternative intent to resist lawful apprehension or detainer is considered below. However, a cut could theoretically suffice where the greater level of harm was the intention.
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. There must be a legal power for the apprehension or detention, and the conditions for its exercise must be met. An arrest is one example. The section also covers an intention to resist or prevent the lawful detention of someone other than the defendant. 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. Just because a defendant intends to avoid arrest this does not automatically mean that he intends harm or is subjectively reckless as to whether some harm will be caused.
Examination Point
Due to the requirement for the arrest to be lawful it is necessary to have some knowledge of the Police and Criminal Evidence Act (PACE) 1984 as to when an arrest will be lawful, however for examination purposes the examiner is not testing your knowledge of the Act and will make it easy for you. It may be for example….
“…Tom is walking down the street and a police officer grabs him, handcuffs him and tries to force him into the back of a police car. He does not inform Tom that he is being arrested and when later questioned by his colleague he fails to give a reason for making the arrest…”
For a police arrest without warrant under section 24 of PACE there must be grounds for arrest and reasonable grounds for believing the arrest is necessary. Section 28 normally requires the officer to tell Tom that he is under arrest and give the grounds as soon as practicable. If the arrest was unlawful, an intention to resist it cannot establish this limb of section 18. That does not in itself justify any degree of force used against the officer.
3.3 Charging and Sentencing
The offence is indictable only which means it must be heard and sentenced at crown court.
Section 18 offences are the most serious of the non-fatal offences against the person and often it is sheer luck on the part of the defendant that the victim does not die. When that level of harm is inflicted on a person it is often left to fate as to whether or not it will prove fatal. Consider two different defendants punching two different victims in the head. It is not unforeseeable that one of these will die as a result of the punch and sadly this often happens. Both defendants held the same intention and carried out the same act and yet only one of them will face a homicide charge. The maximum sentence for the s.18 offence is life imprisonment.
4.0 Defences
All of the usual defences are available in relation to a charge of GBH. With regards to consent, R v Brown [1994] 1 AC 212 and Attorney General’s Reference no. 6 of 1980 have established that a person may give valid consent to GBH, in recognised circumstances, such as lawful surgery. Under section 71 of the Domestic Abuse Act 2021, consent to serious harm inflicted for sexual gratification is no defence to a section 18 or section 20 charge. Section 71 preserves an exception for section 20 where the harm is a sexually transmitted infection and the complainant knew or believed the defendant had it when consenting to sex (see Chapter 4.1).
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. The main issues with the current law can be identified as follows:
- There is confusing terminology, especially with regards to ‘maliciously’ and ‘inflict’.
- Section 20 uses different language for its two forms of harm: the defendant must wound or inflict GBH. The wording suggests a distinction, although neither form requires a direct application of force.
- There is criticism with regards to the definition of wounding which can be satisfied by a very low level of harm, for example a paper cut. This does not marry up to wounding as society would understand it to be.
- A double mens rea exists in relation to the s.18 offence requiring ‘intent’ but also ‘malice’, which adds nothing where an intent to cause GBH has been established but does matter where the intent is to resist lawful apprehension or detention.
- There are serious issues with the description of the harm the provisions encompass: -
- The low level of harm that could fulfil the definition of a wound is presently classed as equally as serious as GBH for the purposes of the two offences;
- The word ‘bodily’ does not make clear on its face that a recognised psychiatric illness can qualify. Through the ruling in Ireland and Burstow judges have addressed this and bought the law up to date with respect to modern day medical understanding however the wording of the provisions still remain and are not reflective of the law as it presently stands.
- Due to the issues with defining maliciously and the double mens rea in relation to s.18 the is some confusion as to what the offences require for a defendant to be culpable.
Examination Point
This is another hot topic for an essay question on these offences. Note that the issues set out above are just the issues taken from our discussion and are not a definitive list. If you are considering attempting this topic in an exam, then it will pay to do some further reading and also to conduct your own critical analysis of the two provisions. Are there any more concerns with these that you can identify yourself?
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. It proposes to deal with them as follows:
- The draft Bill proposed amending s.20 to create a new offence of ‘recklessly causing a serious injury to another’, with a maximum sentence of 7 years. This provision refers to causing serious injury and makes no reference to inflicting, wounding or bodily harm. The proposed maximum would have been higher to reflect that it is more serious than a s.47 offence of assault occasioning actual bodily harm which at present carries an identical sentence to the s.20 offence, despite the difference in severity of harm caused.
- With regards to s.18, the draft Bill proposed an offence of ‘intentionally causing serious injury to another’. As with the proposed s.20 offence, any reference to wounding or bodily harm is removed.
- The draft Bill actually sets out a definition of injury in order to provide clear and specific, legally binding guidance as to what this entails. For the purposes of the provisions injury would encompass physical injury, such as pain, unconsciousness and any impairment to physical condition, as well as mental injury which would include any impairment of a person’s mental health
- The draft Bill expressly defines intention and recklessness. For the proposed offence of recklessly causing serious injury, the defendant would have to foresee a risk of serious injury, unlike the rule in Mowatt. For the proposed injury offence replacing section 47, fault would likewise have to extend to injury, in contrast to Roberts.
In 2015 the Law Commission recommended replacing the 1861 Act offences with a modern scheme based on the 1998 draft (Reform of Offences against the Person, Law Com No 361). These proposals have not replaced sections 18 and 20, which remain in force.
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