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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.

Jackson

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.

Which offence?

s.18 intent to cause GBH

Actus Reus

•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.

Mens Rea

•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.

Actus Reus

•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.

Mens Rea

•‘maliciously’

•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.

Darryl

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.

Which offence?

s.18 intent to cause GBH

Actus Reus

•Max unlawfully cased Darryl to suffer GBH.

Mens Rea

•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.

Danielle

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

Actus Reus

•Max caused Danielle to suffer GBH by her contracting the infection from him.

Mens Rea

•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

Actus Reus

•‘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.


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