Grievous bodily harm
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Grievous bodily harm or GBH is a phrase used in English criminal law which was introduced in ss18 and 20 Offences Against The Person Act 1861. For less serious offences, see common assault and assault occasioning actual bodily harm
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[edit] The offences
s18 (as amended) 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 an offence and, being convicted thereof, shall be liable to imprisonment for life.
s20 (as amended) 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, being convicted therefore, shall be liable to a term of imprisonment not exceeding five years.
The distinction between these two sections is the requirement of specific intent for s18. For this reason the offence under s18 is often referred to as "GBH with intent" or "wounding with intent". See Intention in English law for a discussion of the modern test to determine whether any particular consequence is intended.
[edit] Definitions
Both these sections refer to wounding and to grievous bodily harm. These terms are not defined in the Act, but have been defined by the case law. A wound requires the breaking of the continuity of the whole skin, Moriarty v Brookes (1834) 6 C & P 684. A single drop of blood is sufficient, but it must fall outside the body (see JCC (a minor) v Eisenhower (1984) 78 Cr. App. R. 48). Grievous bodily harm means "really serious harm", DPP v Smith [1961] AC 290 (although R v Sanders (1985) CLR 230 allows "serious injury" as a sufficient direction to the jury).
[edit] Non-physical injury
Non-physical or psychiatric injury can be considered "bodily harm" whether "actual" or "grievous", but there must be formal medical evidence to verify the injury. The original legislative intent was almost certainly restricted to physical injury because Parliament required "bodily" (i.e. harm to the skin, flesh and bones of the victim) rather than "mental" or "emotional" harm. After all, psychiatry was in its infancy in 1861. Hence, in R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. The court was reluctant to consider this either an "injury" or an injury "inflicted" within the meaning of the Act because there was no assault. In modern times, the practice of statutory interpretation frequently refers to the actual intention of the draftsman as expressed in the words of the Act, but considered in the light of contemporary knowledge. Applying this approach. a recognisable psychiatric injury may be bodily injury. Thus, R v. Chan Fook (1994) 1 WLR 689 accepted hysteria as an injury when the defendant locked up a shoplifter who became very upset (i.e. there was some resulting "harm"). This was followed by the Court of Appeal in R v Constanza (1997) 2 Cr. App. R. 492, and the House of Lords which confirmed the principle in R v Burstow, R v Ireland (1998) AC 147. These were a pair of cases on harassment situations before the Protection from the Harassment Act 1997 came into force. During a three month period, Ireland, who had a substantial record of making offensive telephone calls to women, harassed three women by making repeated silent or heavy breathing telephone calls to them at night. This caused his victims to suffer psychiatric illness. Similarly, Burstow could not accept the decision of a woman to terminate a relationship, so he harassed her over an eight month period by making silent and abusive telephone calls, distributed offensive cards in the street where she lived, appeared unnecessarily at her home and place of work, took surreptitious photographs of the victim and her family, and sent her a menacing letter. The victim was fearful of personal violence was diagnosed as suffering from a severe depressive illness. The best medical practice today accepts a link between the body and psychiatric injury, so the words "bodily harm" in ss20 and 47 were capable of covering recognised psychiatric illnesses, such as an anxiety or a depressive disorder, which affect the central nervous system of the body. However, to qualify, those neuroses must be more than simple states of fear, or problems in coping with everyday life, which do not amount to psychiatric illnesses. On the significance in the use of the word "inflict" in s20 as opposed to "cause" in s18 (Burstow, above), "inflicting" GBH under s20 could be committed even though no physical violence was applied directly or indirectly to the body of the victim. Further, neither offence requires that a common assault be committed (distinguish actual bodily harm). The Law Commission stated its view that "the deliberate or reckless causing of disease should not be beyond the reach of the criminal law" and there is continuing debate over whether the transmission of HIV is covered as GBH or under ss22-24 OAP Act 1861.
[edit] Inflict and cause
Inflict is usually taken to mean the same as causing (see causation), so shouting fire in a crowded theatre would "inflict" the injuries in the resulting panic (see R v Martin (1881) 8 QBD 54). In R v Sullivan (1981) CLR 46 a driver swerved towards a group of pedestrians intending to scare them, but lost control of the car and actually injured the pedestrians. As he had only foreseen the risk of non-physical harm, his liability was reduced to s47 as an assault. But, in R v Wilson (1984) AC 242 a driver punched a pedestrian in the face. Lord Roskill stated: "In our opinion, 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, although it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm." (see R v Burstow above that harassment is inflicted harm because it is intended to have an effect). But in R v Mandair (1994) 2 All ER 715, Lord Mackay held that "causing" was "wider or at least not narrower than the word 'inflict'", and both words include acts and omissions.
[edit] Maliciously
In R v Mowatt (1968) 1 QB 421 Lord Diplock stated:
- In the offence under section 20 … 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 … 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.
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 (1991) 1 AC 699) but a mere intention to assault is not enough (see R v Sullivan).
[edit] Specific intent
s18 has two separate mens rea requirements and is therefore an offence of specific rather than basic intent. R v Belfon (1976) 1 WLR 741 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 ss18 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 GBH". If this cannot be done, s20 and 47 are offences of basic intent and can be an alternative charge, and/or s47 is a lesser included offence.
[edit] Consent
It is against public policy to allow consent to be a defence to either section (see R v Brown (1993) 2 WLR 556, a case concerning consensual sadomasochism activity) except in certain limited situations involving necessary medical operations, sport, and, occasionally, "horseplay", as in R v Aitken [1992] 1 WLR 1006, in which RAF officers set fire to one of their number inflicting severe burns.
[edit] References
- 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
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