Grievous bodily harm

Template:Short description {{#invoke:other uses|otheruses}} Template:Use dmy dates

Assault occasioning grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent",<ref name=":0">Archbold Criminal Pleading, Evidence and Practice, 1999, paragraph 19-201 at page 1614</ref> whereas the offence under section 20 is variously referred to as "unlawful wounding",<ref name=":0" /> "malicious wounding"<ref>The Crime and Disorder Act 1998, section 29(1)(a)</ref> or "inflicting grievous bodily harm".<ref name=":0" />

The offence is also known in Canada, as the most severe gradation of assault.<ref name="paice05">Template:Cite news</ref><ref name="nji1">Template:Cite news</ref><ref name="mcintosh95">Template:Cite news</ref> It is a tradition handed down since at least 1879.<ref name="utor1">Template:Cite news</ref> It shows up in Template:USC(g)(4), which deals with "rape and sexual assault generally".<ref name="corn1">Template:Cite news</ref>

Statute

Section 18

This section now reads:

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 ...{{#if:|

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The words omitted in the first to third places specifically included shooting or attempting to shoot, and included some words considered redundant; they were repealed by section 10(2) of, and Part III of Schedule 3 to, the Criminal Law Act 1967.

The words omitted in the penultimate place ("at the discretion of the court") were repealed by the Statute Law Revision (No. 2) Act 1893.

The words omitted at the end were repealed by the Statute Law Revision Act 1892 (words limiting penal servitude to at least three years, or imprisonment to at most two years, and removing mention of hard labour) and the Statute Law Revision (No. 2) Act 1893 (words prescribing imprisonment as an alternative to penal servitude).

This section replaces section 4 of the Offences against the Person Act 1837, which in turn replaced section 12 of the Offences against the Person Act 1828, which in turn replaced section 1 of Lord Ellenborough's Act (1803).

Section 20

In England and Wales, section 20 now reads:

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 ...{{#if:|

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The words omitted were repealed by the Statute Law Revision Act 1892, as for section 18.

In Northern Ireland, it reads:

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 and liable, on conviction on indictment, to imprisonment for a term not exceeding 7 years.{{#if:|

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This was subject to the same omissions as in England; the Criminal Justice (No. 2) (Northern Ireland) Order 2004 enacted the other amendments.

Interpretation

Felony

The distinction between felony and misdemeanor was abolished by the Criminal Law Act 1967.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Accordingly, "guilty of felony" and "guilty of a misdemeanour" are both to be read as "guilty of an offence". The Criminal Law Act (Northern Ireland) 1967 provided the same for Northern Ireland, until the 1861 Act was amended in 2004 to update the formulation.

Penal servitude

Penal servitude was abolished by the Criminal Justice Act 1948 and the Criminal Justice Act (Northern Ireland) 1953. Accordingly, the phrase "penal servitude" is to be read as "imprisonment".

The offences

None of the words used in these sections are defined elsewhere in the Act, but they have been defined by case law.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

Wound

For this purpose, a wound is an injury that breaks the continuity of the skin.<ref>Rex v Wood and M'Mahon (1830) 1 Mood CC 278; Template:Cite BAILII; C & P 684; Rex v Beckett (1836) 1 Mood & R 526; See also Template:Cite AustLII.</ref> There must be a division of the whole skin and not merely a division of the cuticle or upper layer.<ref>Reg v M'Loughlin (1838) 8 C & P 635; C (a minor) v Eisenhower [1984] QB 331 (1984) 78 Cr App R 48</ref>

A single drop of blood is sufficient, but it must fall outside the body: see JJC (a minor) v. Eisenhower (1984) 78 Cr App R 48. In this case, a pellet gun was fired at the victim. The bullet ruptured blood vessels above his eye, causing his eye to fill with fluid. Lord Justice Robert Goff said the rupturing of blood vessels is an internal wound; only the breaking of whole skin would warrant a wounding charge.

A bruise or internal rupturing of blood vessels is not a wound,<ref>C (a minor) v Eisenhower [1984] QB 331 (1984) 78 Cr App R 48</ref> and neither is a broken bone.<ref>Reg v M'Loughlin (1838) 8 C & P 635</ref>

Wounding does not imply the use of a weapon; a kick may be wounding.

Grievous bodily harm means "really serious bodily harm": DPP v Smith [1961] AC 290, HL; R v Cunningham [1982] AC 566, HL; R v Brown (A) [1994] 1 AC 212, HL; R v Brown and Stratton [1998] Crim LR 485, CA. It encompasses a range of injuries: R v Woodland (2007) 48 MVR 360.

However, R v Saunders [1985] Crim LR 230, [1985] LS Gaz R 1005, allows "serious injury" as a sufficient direction to the jury. It is for the judge to decide whether the word "really" needs to be used in their direction to the jury: R v Janjua and Choudhury [1999] 1 Cr App R 91, The Times, 8 May 1998, CA (in this case, as a knife with a blade at least Template:Frac inches long had been used, it was not possible that something less than really serious harm was intended).

Inflict and cause

In R v Martin, shortly before the conclusion of a performance at a theatre, the defendant put out the lights on a staircase which a large number of persons had to descend in order to leave the theatre, and he also obstructed the exit by placing an iron bar across a doorway which they had in leaving to pass, and upon the lights being thus extinguished, a large proportion of the audience were seized by panic and rushed in fright down the staircase forcing those in front against the iron bar; he "inflicted" injuries which resulted by reason of the pressure and struggling of the crowd thus created on the staircase.<ref>R v Martin (1881) 8 QBD 54; (1881) 51 LJMC 36; (1881) 45 LT 444; (1881) 46 JP 228; (1881) 30 WR 106; (1881) 14 Cox CC 375.</ref>

David Ormerod said that the effect of the decision in R v Gibbins and Proctor<ref>R v Gibbins and Proctor (1918) 13 Cr App R 134, (1918) 82 JP 287, CCA</ref> appears to be that the offence of causing grievous bodily harm under section 18 can be committed by an omission.<ref>Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. p. 69</ref>

In R v Mandair,<ref>[1994] 2 All ER 715, [1995] 1 AC 208, 99 Cr App R 250, [1994] 2 WLR 700, HL</ref> Lord Mackay of Clashfern LC said, with the agreement of the majority of the House of Lords, "In my opinion ... the word 'cause' is wider or at least not narrower than the word 'inflictTemplate:'".<ref>R v Mandair [1995] 1 AC 208 at 215, HL</ref>

In R v Burstow, R v Ireland,<ref>R v Ireland, R v Burstow [1998] 1 Cr App Rep 177, [1997] 3 WLR 534, [1998] AC 147, [1997] 4 All ER 225, HL (24 July 1997)</ref> it was held that an offence of inflicting grievous bodily harm under section 20 of the Offences against the Person Act 1861 can be committed where no physical violence is applied directly or indirectly to the body of the victim.<ref>This is the point of law that the Court of Appeal certified as being of general importance.</ref>

Lord Hope of Craighead said "the word 'inflict' implies that the consequence of the act is something which the victim is likely to find unpleasant or harmful." He said that, in the context of a criminal act, the words "cause" and "inflict" may be taken to be interchangeable.

Lord Steyn described the actions of Burstow as follows: "During an eight-month period in 1995 covered by the indictment he continued his campaign of harassment. He made some silent telephone calls to her. He also made abusive calls to her. He distributed offensive cards in the street where she lived. He was frequently, and unnecessarily, at her home and place of work. He surreptitiously took photographs of the victim and her family. He sent her a note which was intended to be menacing, and was so understood."

Neither offence requires that a common assault be committed.

1983 to 1997

In R v Wilson, R v Jenkins,<ref>R v Wilson, R v Jenkins [1984] AC 242, [1983] 3 WLR 686, 77 Cr App R 319, [1983] Crim LR 36, HL, reversing [1983] 1 WLR 356</ref> Lord Roskill said: Template:Quote

Before 1983

In R v Clarence (1888),<ref>R v Clarence (1888) 22 QBD 23, (1888) 16 Cox CC 511, (1888) 5 TLR 61, (1888) 53 JP 149, CCR</ref> it appeared that at a time when the prisoner knew, but his wife did not know, that he was suffering from gonorrhoea, he had "connection" with her; that the result was that the disease was communicated to her, and that had she been aware of the prisoner's condition she would not have submitted to the intercourse.

Clarence's conviction under section 20 was quashed by the Court for Crown Cases Reserved by a majority of 9 to 4. Wills,<ref>R v Clarence (1888) 22 QBD 23 at 36 to 37, CCR</ref> A. L. Smith,<ref>R v Clarence (1888) 22 QBD 23 at 37 to 38, CCR</ref> and Stephen<ref>R v Clarence (1888) 22 QBD 23 at 41 to 42, CCR</ref> JJ specifically said that they thought the disease had not been inflicted within the meaning of the word "inflict" in section 20. Mathew J<ref>R v Clarence (1888) 22 QBD 23 at 38, CCR</ref> said that he agreed with Stephen. Stephen<ref>R v Clarence (1888) 22 QBD 23 at 46, CCR</ref> said that he had been informed that Grantham J agreed with him. Huddleston B<ref>R v Clarence (1888) 22 QBD 23 at 56, CCR</ref> said that he thoroughly agreed with Stephen. Lord Coleridge CJ<ref>R v Clarence (1888) 22 QBD 23 at 66, CCR</ref> said that he agreed with all or almost all of what Wills and Stephen said. Hawkins J<ref>R v Clarence (1888) 22 QBD 23 at 47 to 50, CCR</ref> specifically said that he thought it had been inflicted within the meaning of the word "inflict" in section 20.

Wills J said (footnotes have been included in the body of the text, indicated by "(1)"):

Stephen J said:

A. L. Smith J said "it appears to me that this offence cannot be committed unless an assault has in fact been committed, and indeed this has been so held".<ref>R v Clarence (1888) 22 QBD 23 at 37 to 38, CCR</ref>

Hawkins J said that he thought that the contention that bodily harm cannot be legally said to be "inflicted" unless it has been brought about by some act amounting to an assault was untenable.<ref>R v Clarence (1888) 22 QBD 23 at 47, CCR</ref>

Maliciously

In R v Mowatt,<ref>Template:Cite BAILII</ref> Lord Diplock said:

Therefore, the defendant must at least be reckless as to whether some harm, albeit not necessarily serious harm, is likely to be caused (see R v Savage, DPP v Parmenter<ref>Template:Cite BAILII</ref>), but a mere intention to frighten is not enough (see R v Sullivan).

In R v Sullivan [1981] Crim LR 46, CA, the appellant was tried on charges of causing grievous bodily harm with intent and inflicting grievous bodily harm. The victim said that the appellant and a companion were drunk. He said that while he was in a street that was eight feet wide and had a narrow pavement, the appellant drove a car through that street at twenty-five to thirty miles an hour, mounted the pavement and injured him. The appellant denied that he was the driver of the car in a written statement to the police and said he could add nothing to that statement in an unsworn statement from the dock. However, during his closing speech, counsel for the defence suggested that all the appellant intended to do was frighten the victim and no more. The jury were directed that if there was an intention to frighten, and injury took place as a result, the appellant was guilty of an offence under section 20. The appellant was acquitted of the offence under section 18, but convicted of offences under section 20. The Court of Appeal held that an intention to frighten was not enough to constitute the necessary mens rea for section 20, and that the direction to the contrary effect was a misdirection. However, they dismissed the appellant's appeal. They said that a properly directed jury could not in the circumstances have come to any other conclusion than that the appellant must have been aware that what he was doing was likely to cause physical injury to the victim.

In practice, malice in the case of these offences means no more than foresight of the risk of bodily harm: R v Barnes [2005] 1 Cr App R 30.

Specific intent

Section 18 has two separate mens rea requirements and is therefore an offence of specific rather than basic intent. In R v Belfon [1976] 1 WLR 741, the Court of Appeal confirmed that references to mere foresight or recklessness that harm was likely to result are sufficient for the element "unlawfully and maliciously inflict/cause" for the basic intent in both sections 18 and 20 but insufficient for the specific element. The intention either to cause or to resist arrest must be proved subjectively, say, in the charge "malicious wounding with intent to cause grievous bodily harm".

The Crown Prosecution Service says that the following factors may be evidence of intention:

Alternative verdicts

Sections 20 and 47 are offences of basic intent and can be an alternative charge to section 18, and/or section 47 is a lesser included offence.

Consent

Consent is only an allowed defence to either section if there is considered to be a good reason. This may include medical operations, sport, tattooing (even if carried out by someone who is not trained),<ref>R v Wilson (A) [1996] 2 Cr App R 241, [1996] 3 WLR 125, CA (involved a husband branding his wife's buttocks)</ref> and, occasionally, "horseplay".<ref>R v Aitken [1992] 1 WLR 1006, 95 Cr App R 304, [1992] 4 All ER 541, Ct-MAC (RAF officers set fire to one of their number inflicting severe burns)</ref>

Body modification, other than "tattooing, piercing or other body adornment", cannot be consented to.<ref>Burnett LCJ in R v BM [2018] EWCA Crim 560, para. 42</ref>

R v Brown (Anthony)<ref>Template:Cite BAILII</ref> however ruled that sadomasochistic sexual acts are not a good reason to allow a defence of consent. This decision was approved in s.71 Domestic Abuse Act 2021. This comes with the exception where (a) The Serious Harm consists of, or is a result of the infection of the victim with a sexually transmitted infection, and (b) that V consented to the sexual activity in the knowledge or belief that the defendant had the sexually transmitted infection.

The relevant case to this exception is R v Dica<ref>R v Dica [2004] EWCA Crim 1103</ref> in which it was held that infection with an STD consists of grievous bodily harm when one is aware they possess the disease and is reckless as to its transmission. Both parties must be aware of the disease for infection to be consensual.

Attempt

According to the CPS, in relation to the offence of attempted GBH, "It is not possible to attempt [a Section 20] offence because in order to attempt it, the consequence (wounding or GBH) must be intended, which is an offence contrary to section 18 instead."<ref name="CPS OATP-CS"/>

Causing death, even accidentally, in the course of attempting a section 18 offence is murder, not manslaughter. Attempted murder nonetheless requires the specific intent to kill.<ref name="CPS OATP-CS"/>

Mode of trial

In England and Wales, the offence under section 18 is an indictable-only offence, while the offence under section 20 is triable either way.<ref>The Magistrates' Courts Act 1980 (c.43), section 17(1) and Schedule 1, paragraph 5(b)</ref>

Sentence

Section 18

In England and Wales, an offence under section 18 is punishable with imprisonment for life or for any shorter term.<ref>The Offences against the Person Act 1861 (24 & 25 Vict c 100), section 18; the Criminal Justice Act 1948 (11 & 12 Geo 6 c 58), section 1(1)</ref>

See the sentencing guidelines for case law on sentencing of section 18.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> Relevant cases are:

• Attorney General's Reference (No. 14 of 2008) (Cook) [2009] 1 Cr App R (S) 62
• Attorney General's Reference (No. 44 of 2008) (Patterson) [2009] 1 Cr App R (S) 111
• Attorney General's Reference (No. 49 of 2008) (Blake) [2009] 1 Cr App R (S) 109
• R v Stanley [2008] 2 Cr App R (S) 107
• Attorney General's Reference (No. 6 of 2009) (DR) [2009] 2 Cr App R (S) 108
• Attorney General's Reference (No. 14 of 2009) (Morgan) [2010] 1 Cr App R (S) 17
• Attorney General's Reference (No. 95 of 2009) (Blight) [2010] EWCA Crim 353
• R v Cross [2009] 1 Cr App R (S) 34
• R v Smith [2009] 1 Cr App R (S) 37
• R v Bowley [2009] 1 Cr App R (S) 79
• R v Chatburn [2010] EWCA Crim 115
• R v Haystead [2010] 1 Cr App R (S) 107

In Northern Ireland, an offence under section 18 is punishable with imprisonment for life or for any shorter term.<ref>The Offences against the Person Act 1861 (24 & 25 Vict c 100), section 18; the Criminal Justice Act (Northern Ireland) 1953, section 1(1)</ref>

Section 20

Template:Update section In England and Wales, a person guilty of an offence under section 20 is liable, on conviction on indictment, to imprisonment for a term not exceeding five years,<ref>Relevant enactments:

• Offences against the Person Act 1861 (24 & 25 Vict c 100), section 20, specifies the penalty as three years' penal servitude or two years' imprisonment.
• Penal Servitude Act 1891 (54 & 55 Vict c 69), section 1(1), authorised courts to substitute imprisonment between three and five years for penal servitude.
• Statute Law Revision Act 1892 (55 & 56 Vict c 19) repealed the penalty of imprisonment and the time limits on penal servitude.
• Criminal Justice Act 1948 (11 & 12 Geo 6 c 58), section 1(1), abolished penal servitude, replacing it with imprisonment for any term not exceeding the maximum specified term of penal servitude (i.e. five years by virtue of the 1891 Act).</ref> or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum, or to both.<ref>The Magistrates' Courts Act 1980 (c 43), section 32(1)</ref>

Where a person is convicted on indictment of an offence under section 20, other than an offence for which the sentence falls to be imposed under section 227 or 228 of the Criminal Justice Act 2003, the court, if not precluded from sentencing an offender by its exercise of some other power, may impose a fine instead of or in addition to dealing with him in any other way in which the court has power to deal with him, subject however to any enactment requiring the offender to be dealt with in a particular way.<ref>The Criminal Justice Act 2003, section 163; this power was previously created by section 30(1) of the Powers of Criminal Courts Act 1973 and then by section 127 of the Powers of Criminal Courts (Sentencing) Act 2000</ref>

An offence under section 20 is a specified offence for the purposes of part 12, chapter 5 of the Criminal Justice Act 2003 because it is a specified violent offence.<ref>The Criminal Justice Act 2003, section 224(1) as read with section 224(3) and paragraph 7 Part 1 of Schedule 15 (where the offence is described as "malicious wounding")</ref> It is not a serious offence for the purposes of that Chapter because it is not, apart from section 225, punishable in the case of a person aged 18 or over by imprisonment for life, or by imprisonment for a determinate period of ten years or more.<ref>The Criminal Justice Act 2003, section 224(2)</ref> This means that sections 227 and 228 of the Criminal Justice Act 2003 (which relate to extended sentences) apply where a person is convicted of an offence under section 20, committed after the commencement of section 227 or 228 (as the case may be) and the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.<ref>The Criminal Justice Act 2003, sections 227(1) and 228(1)(a) and (b)(i)</ref>

See the sentencing guidelines for case law on sentencing of section 20.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

The following cases are relevant to section 20:

• R v Robertson [1997] EWCA Crim 918 (16 April 1997), 1 Cr App R (S) 21<ref>Template:Cite BAILII</ref>
• R v Byrne [1997] EWCA Crim 1174 (13 May 1997), 1 Cr App R (S) 105<ref>Template:Cite BAILII</ref>
• R v McNellis [2000] 1 Cr App R (S) 481
• R v Clare [2002] 2 Cr App R (S) 97
• R v Foote [2005] 2 Cr App R (S) 5
• R v Hall [2008] EWCA 1208
• R v Olawo [2008] 2 Cr App R (S) 113
• R v Owen [2009] 1 Cr App R (S) 64
• R v Shannon [2009] 1 Cr App R (S) 95
• R v Hurley [2009] 1 Cr App R (S) 100
• R v Burns [2009] EWCA Crim 2150
• R v Williamson [2010] 1 Cr App R (S) 16
• R v Abdile [2010] 1 Cr App R (S) 18
• R v Kee [2010] 1 Cr App R (S) 64

In Northern Ireland, a person guilty of an offence under section 20 is liable, on conviction on indictment, to imprisonment for a term not exceeding seven years,<ref>The Offences against the Person Act 1861 (24 & 25 Vict c 100), section 20; as amended by the Criminal Justice (No.2) (Northern Ireland) Order 2004 (SI 2004/1991 (NI 15)), article 4(1)</ref> or on summary conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the prescribed sum, or to both.<ref>The Magistrates' Courts (Northern Ireland) Order 1981 (No 1675 (NI 26)), article 46(4)</ref>

Racially or religiously aggravated offence

In England and Wales, section 29(1)(a) of the Crime and Disorder Act 1998 (c 37) creates the distinct offence of racially or religiously aggravated wounding or infliction of bodily harm. This is an aggravated version of the offence under section 20 punishable by up to seven years' imprisonment.

See also

• Assault occasioning actual bodily harm (ABH)
• Bodily harm
• Non-fatal offences against the person in English law
• Offence against the person

Further reading

• Clarkson. C.M.V. Law Commission Report on Offences Against the Person (1994) CLR 324.
• Criminal Law Revision Committee Fourteenth Report (1980) Offences Against the Person (London: HMSO) Cmnd 7844.
• Cross, Rupert. Statutory Interpretation, (3rd ed.) Oxford: Oxford University Press. (1995)
• Horder, J. Reconsidering Psychic Assault (1998) CLR 392.
• Ormerod, D. C. & Gunn, M. J. Criminal Liability for Transmission of HIV (1996) 1 Web JCLI [1]
• Smith, J. C. Home Office Consultation Paper – Violence: Reforming the OAP Act 1861 (1998) CLR 317.
• Williams, Glanville. Force, Injury and Serious Injury NLJ 7/9/90

External links

Crown Prosecution Service

• Section 18 [2]
• Section 20 [3]
• Offences against the Person Act 1861
• Sentencing Council: Assault - Definitive Guideline