Non-fatal offences
against the person
Sections 47, 20 and 18 of the
Offences Against the Person Act 1861
Common assault deals with the least serious
cases of harm and more serious injuries will be
charged under ss47, 20 or 18 of the Offences
Against the Person Act 1861 (OAPA 1861).
These are statutory offences but the sections
only provide the basic definitions of each
offence and case law is heavily relied upon to
explain the meaning of the terms used in setting
out the offences.
S 47 Offences against the Persons Act 1861
Actual bodily harm (ABH)
S47 definition
• S 47 provides that a person convicted of ‘any
assault occasioning actual bodily harm shall
be liable to imprisonment for not more than
five years’
• So for s 47 you need an assault plus actual
bodily harm
• These terms have been further defined in case
law so it is important to know the cases
ACTUS REUS
• Assault
• Occasioning
• Actual Bodily Harm
Assault
The term ‘assault’ under section 47 means
either an assault or a battery according to the
cases and principles set out for common assault.
Explain…
Occasioning
An assault or battery will only be charged under
section 47 if it occasions actual bodily harm. If
there is no such harm then it will be s39 CJA
1988.
Occasion seems to mean the same as ‘cause’ –
same rules of causation as in Roberts (1971)
Actual Bodily Harm
Actual – means that there must be a form of physical or psychological injury.
It can be very minor harm – Miller (1954) – ‘any hurt or injury calculated to interfere with
the health or comfort of the victim’ – provided it is more than transient and trifling.
Definition was extended to hair being cut – DPP v Smith (2006)
Injuries also included under s.47 include: loss/broken tooth, loss of consciousness, minor
cuts require medical treatment (stitches), minor fractures and extensive bruising
Chan Fook (1994) – Psychiatric harm can amount to ABH – interrogated aggressively as a
suspect for stealing a ring – Medical experts need to prove that the state of mind caused in
the victim was evidence of an identifiable clinical condition and ‘mere emotions such as fear,
panic and distress’ when unrelated to such a condition would not be considered.
Miller – not applied to psychiatric harm
Psychiatric injury
• In Chan Fook it was confirmed that actual
bodily harm could include psychiatric harm
• The same case made clear it did not include
‘mere emotions such as fear, distress or panic’
• Remember that causing fear will still be an
assault, but can’t amount to ABH
MENS REA
• Mens rea is intention or subjective
recklessness
• Importantly, it is only mens rea for the assault
or battery that is needed
• D need not intend, or be reckless as to, any
harm
• R v Savage (1992)
• R v Roberts (1971)
• DPP v Parmenter (1992)
What happened in these cases?
Roberts applied
• In Roberts he committed the actus reus of
battery when he touched her coat. This is
unlawful force as shown in Thomas
• He intended to grab her coat so had the mens
rea for the battery. It was not necessary to
prove he intended or was reckless that any
harm occurred
• The final part of the actus reus was that she
suffered actual bodily harm. This was
‘occasioned’ by her reaction to his battery
Savage applied
• The throwing of the beer was a battery
• She had sufficient mens rea as she intended to throw the
beer. This was enough
• She had the actus reus and mens rea of battery plus some
harm had been caused so the actus reus and mens rea for
ABH was satisfied
• Note the rules on causation may need to be applied. The
assault or battery need to ‘occasion’ the harm as in Roberts
and Savage
• In Roberts she did not break the chain of causation as her
actions were foreseeable
Problems
• Do you think it fair that a person can be
convicted of ABH when only having mens rea
for an assault or battery?
• Use Roberts and/or Savage to support any
criticism
Other problems
• The language is obscure
• Assault means both assault and battery which
is confusing
• Neither assault nor battery are defined in any
statute
• Actual bodily harm is not fully defined
• However, on the plus side, the courts have
extended it to include mental harm (Chan
Fook)
Main points
First you need an assault
or a battery
Then you need some
harm or injury to have
been caused (Miller)
For mens rea you need
intent or subjective
recklessness for the
assault or battery only
(Roberts, Savage)
This is the actus reus
Then you have the full
actus reus and mens rea
for a s 47 offence
Summary of ABH
Assault
Harm
• Means an assault or a battery
• The full offence is assault occasioning actual bodily harm
• ‘any hurt or injury calculated to interfere with the health or
comfort of the victim’ Miller
• including psychiatric harm Chan Fook
• Only needed for the assault or battery
Mens rea • Roberts, Savage
Non-fatal offences against the
person
S 20 and s 18 Offences against the Persons Act 1861
Malicious wounding / wounding with intent
S 20: The definition
• Commonly called malicious wounding, s 20
actually covers both wounding and grievous
bodily harm
• Under s 20 it is an offence to:
• ‘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 an offence and shall be liable…to
imprisonment for not more than 5 years’
• Section 20 is a more grave offence than 27,
despite the fact that the maximum sentence for
both is 5 years.
ACTUS REUS
•So there are two parts to the offence:
– Wounding OR
– Grievous bodily harm
Or, is the key word. If the wound has also inflicted gbh,
then the prosecution must choose from the two
offences.
Wounding
• Both layers of the skin are broken and usually
blood loss – JCC v Eisenhower – air pellet in
eye leading to internal bleeding was not GBH
• There must be a break in the continuity of the
skin
• What else is not included and what is
included?
Grievous Bodily Harm
• A minor wound might be charged as a s20 offence, but any
other offence under s20 must be ‘grievous’
• DPP v Smith (1961) – this means no more and no less than
really serious
• Saunders (1985) – serious harm, ‘really’ is not necessary
• R v Burstow (1997) – GBH can be psychiatric harm as long as it
is sufficiently serious
The charging standard list – broken bones, injuries requiring
lengthy medical treatment, substantial loss of blood,
permanent disability or disfigurement
• R v Bollom (2004) – elderly and children, the harm
will be more serious
• Several minor injuries can amount to a s.20 offence if
taken as a whole – Brown and Stratton (1998)
• The grievous harm must be inflicted upon the victim
– Clarence (1888) – inflict was understood to have
needed assault or battery requiring direct force
• Wilson (1996) – s.20 offence can be committed
without need for assault or battery
• Confirmed in R v Ireland (1997) – no necessity to
apply direct or indirect force – only need to prove
that defendant caused the victim to suffer GBH –
cause and inflict can be interchangeable
• Removing the requirement for assault and
battery under s.20 leads to ‘biological’ GBH –
R v Dica – HIV transmitted through consensual
sex – stated that Clarence (1888) should have
no further relevance
Other cases
Bollom shows
that the age and
health of the
victim may be
relevant
Severe bruising
would usually
be ABH
But could be
GBH if the
victim is very
young – or very
old or
vulnerable
Dica shows
infecting
someone with
HIV can be GBH
Unlawfulness
• Wounding or GBH needs to be unlawful in
order to be an offence and in most cases a
simple lack of consent by the victim will
render the act unlawful.
• However, consent does not always mean the
defendant is not liable
Mens rea
• The word ‘maliciously’ in s 20 has been
interpreted as meaning intent or subjective
recklessness – Cunningham subjective test
• There is no need for D to have mens rea for
serious harm – R v Mowatt (1976)
• D need only intend or see the risk of some
harm
Problems with s 20
• As with s 47 the language is obscure
• ‘maliciously’ and ‘grievous’ may have meant
something different nearly 150 years ago
• Breaking of the skin could be a small cut but
will be a wound and come under s 20 (or 18)
• The actus reus is for serious harm
• The mens rea is for some harm
• Do you think the AR and MR should match?
Sentencing problem
• The maximum sentence for s 20 is five years
• This is the same as for s 47 which is a lesser
offence
• Do you think this is right?
S 18
Wounding with intent
S 18: The definition
• Commonly called wounding with intent
• Under s 18 it is an offence to:
• ‘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 an offence, and being convicted thereof
shall be liable…to imprisonment for life’
• This is much more serious than s.20
Actus reus and mens rea
•
•
•
•
•
•
•
•
The actus reus is the same as for s 20
D’s act must wound or cause serious harm
The mens rea is different
S 20 says ‘with intent to do some grievous bodily
harm’
Maliciously is interpreted to mean that the defendant
must intend serious harm
Intention is needed, recklessness is not enough
D must intend ‘to do some grievous bodily harm’ , i.e.
D must intend serious harm
Intent applies as for murder (Nedrick/Woollin)
• Oblique intention as well as direct intention
applied to s.18 – was GBH virtually certain as a
result of actions
Resisting or preventing arrest
• The final part of s 18 is ‘or with intent to resist
or prevent the lawful apprehension …of any
person’
• Thus if D wounds or causes serious harm with
intent to resist or prevent arrest, liability will
be under s 18
• There is no need to prove intent to cause
serious harm
• Morrison decided that recklessness is enough
Problems
• The difference between s 20 and s 18 is in the
mens rea only but the maximum sentence
changes from five years to life
• Intent to seriously injure is also the mens rea
for murder so this is perhaps justified
• Morrison allows for a conviction under s 18
even if there was no intent to cause serious
harm where D intends to resist or prevent
arrest and sees the risk of injury
Summary of s 20 and s 18
S 20 wounding or
inflicting grievous
bodily harm
S 18 wounding or
causing grievous bodily
harm with intent
• Actus reus: A wound is breaking the skin –
Eisenhower. GBH is serious harm Saunders
• Mens rea: intent or subjective recklessness
to cause some harm - Parmenter
•Actus reus: as above
•Mens rea: intent to cause serious harm
•Resisting arrest requires only recklessness
- Morrison
Extras
Non-fatal offences: actual bodily harm
Definition
Section 47 of the Offences Against the Person Act 1861
states that it is an offence to commit ‘any assault
occasioning actual bodily harm’. The offence is triable
either way and carries a maximum sentence of 5 years’
imprisonment.
Non-fatal offences: actual bodily harm
Actus reus
The actus reus of ABH has been interpreted as assault or battery
that causes ‘actual bodily harm’. This has been given the wide
definition of ‘any hurt or injury calculated to interfere with the
health or comfort of the victim’ (R v Miller, 1954). Thus, ABH
can occur where discomfort to the person is caused.
However, in R v Chan-Fook (1994), Lord Justice Hobhouse said
in the Court of Appeal that ‘the word “actual” indicates that the
injury (although there is no need for it to be permanent) should
not be so trivial as to be wholly insignificant’.
Non-fatal offences: actual bodily harm
Mens rea
The mens rea for ABH is the same as for assault and
battery. No additional mens rea is required (R v Roberts,
1978, and R v Savage, 1991).
Non-fatal offences: actual bodily harm
Joint Charging Standards
The police and Crown Prosecution Service have agreed the
Joint Charging Standards, which set out the types of injury
that will be regarded as ABH. Such injuries include:
• minor fractures
• severe bruising and small cuts that require stitches
• loss of consciousness
• psychiatric injury
Non-fatal offences: grievous bodily harm (s.20)
Grievous bodily
harm (s.20)
Non-fatal offences: grievous bodily harm (s.20)
Definition
According to s.20 of the Offences Against the Person Act
1861:
‘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 an offence triable either way and being convicted
thereof shall be liable to imprisonment for 5 years.’
Non-fatal offences: grievous bodily harm (s.20)
Actus reus
The actus reus of the s.20 offence is unlawfully and
maliciously wounding or inflicting grievous bodily harm.
The word ‘inflict’ has been interpreted to mean that the
grievous bodily harm must be caused by the direct
application of force, e.g. hitting, kicking or stabbing, but
not digging a hole for the victim to fall into. However, in
practice the courts have given a fairly wide interpretation
as to when force is direct.
Non-fatal offences: grievous bodily harm (s.20)
Mens rea
The mens rea of s.20 GBH is described by the word
‘maliciously’. In R v Cunningham (1957), it was stated that
for the purposes of the 1861 Act, ‘maliciously’ meant
‘intentionally or recklessly’.
There is no need to intend GBH or wounding, or to be
reckless as to whether GBH or wounding might be caused.
The defendant needs only to intend or be reckless that his
or her actions could cause some physical damage.
Non-fatal offences: grievous bodily harm (s.18)
Grievous bodily
harm (s.18)
Non-fatal offences: grievous bodily harm (s.18)
Definition
Section 18 of the Offences Against the Person Act 1861
states that:
‘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
an offence triable only on indictment, and being convicted
thereof shall be liable to imprisonment for life.’
Non-fatal offences: grievous bodily harm (s.18)
Actus reus
The actus reus for s.18 is similar to that for s.20 and
requires proof of either GBH or wounding. The actus reus
of wounding and the actus reus of GBH have the same
meaning as under s.20.
Non-fatal offences: grievous bodily harm (s.18)
Mens rea
To satisfy the mens rea, the prosecution must prove
intention to cause GBH or intention to avoid arrest. The
crucial difference between s.20 and s.18 GBH is in the
mens rea; while recklessness can be sufficient for s.20,
intention is always required for s.18.