s.20 and s.18 GBH

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  • Created on: 28-11-12 19:18


This is the next offence in seriousness due to the increased level of injury caused and the increased mens rea required. It is an offence under s.20 OAPA 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.”

It is a basic intent triable either way offence carrying a maximum 5 years imprisonment. Note that this is the same punishment as s.47 ABH despite this being seen as a far more serious offence which requires both a higher degree of injury and MR as to the injury.

This offence can be referred to as s.20 malicious wounding and/or s.20 grievous bodily harm

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ACTUS REUS OF S.20: Malicious woudning

D will either have unlawfully and maliciously wounded V OR unlawfully inflicted grievous bodily harm on V. Independently they both amount to a s.20 OAPA 1861 charge. 

Wounding requires a break in the continuity of the skin and is usually therefore accompanied by bleeding. A cut of internal skin is sufficient, but internal bleeding where there is no cut of the skin is not considered a wound, but would instead be considered as inflicting GBH.

JCC v Eisenhower [1984] D fired an air pistol hitting V in the eye with a pellet. This did not penetrate the eye, but did rupture a blood vessel causing internal bleeding. As there was no cut, it was held that this was not a wound as the skin had not been broken. It did however amount to s.20 GBH.

Note that despite how it might sound, wounding does not require the use of a weapon . A kick can quite easily produce a wound for the purposes of s.20 OAPA 1861. However, the wound itself must be of the whole skin; therefore a scratch is not a wound (this would be ABH). A broken bone is also not considered a wound unless the skin is also broken.

R v Wood [1830] Vs collar bone was broken but the skin was intact and therefore this was not a wound (but it was considered to be GBH).

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ACTUS REUS OF S.20: Grievous bodily harm

DPP v Smith [1961] HL emphasised that when explaining GBH to a jury, it should be given its ordinary and natural meaning, i.e. “really serious harm”. Such harm does not need to be life threatening though.

R v Saunders [1985] CA confirmed that there was little difference between “serious” and “really serious” when directing a jury; they will understand if something should amount to GBH so either description can be used.

R v Brown and Stratton [1998] V was a transsexual who had undergone ‘gender reassignment’ treatment. Stratton was Vs son and he had felt humiliated when his father had come to the supermarket where he worked, dressed as a woman. Along with his cousin, Brown, both Ds had gone round to Vs flat and attacked her with fists and parts of a chair, resulting in a broken nose, three missing teeth, bruising, swelling to her face, a laceration over one eye and concussion. Ds offered a plea for ABH but denied inflicting GBH. CA decided that judges should not attempt to give a fuller definition of the concept of ‘GBH’ to a jury. Using the words “really/serious harm” is sufficient; a jury will know whether they feel Vs injuries amount to this or not. Ds were guilty of s.20 GBH.

R v Ireland and Burstow [1997] The HL recognised that severe psychiatric injury, such as severe depressive illness, can amount to GBH.

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ACTUS REUS OF S.20: Grievous bodily harm

In determining whether GBH has been inflicted, courts can take into account the particular characteristics of V such as age and health. Therefore, to gauge the severity of injuries, an assessment has to be made of the effect of the harm on the particular V.

R v Bollom [2004]

V was a 17 month old child who suffered bruising to her abdomen, both arms and left leg. D, the mother’s partner, was convicted of s.18 GBH but argued that the severity of injuries should be assessed without considering the age, health or other factors relating to V.

CA: Rejected this argument and stated that bruising could amount to GBH and that bruising of this type would be less serious on healthy adult than on very small child. Injuries should be considered in the context of “real life”. (However, conviction was substituted for one of s.47 ABH due to the possibility that some injuries pre-dated the current assault and the judge has misdirected the jury on this point.)

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R v Dica 2004

This offence can also be committed where D infects V with HIV.

R v Dica [2004]

D was diagnosed with HIV in 1995. Despite this knowledge, he had unprotected sex with 2 women (V and W) on a number of occasions. They had been willing sexual partners, but were unaware of his HIV status. V claimed D insisted they have unprotected sex because he had had a vasectomy and said that after each time they had sex, D said “Forgive me in the name of God”. Both women became infected. Claimed they did not know he was HIV positive and that if they had, they would not have had unprotected sex. Following misdirection at the trial (regarding V and Ws consent), the CA ordered a re-trial where D was convicted of inflicting ‘biological’ GBH. D was sentenced to 4 ½ years.

Since this, there have been around 20 similar convictions including in 2008 the first conviction for infecting a V with hepatitis B.

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The meaning of the word ‘inflict’ has caused considerable difficulty. For many years it was held that inflict implied the commission of an actual assault, i.e. V must apprehend the infliction of immediate unlawful force.

Clarence [1888]

Queen’s Bench Divisional court decided that a husband could not be said to have inflicted GBH on his wife by knowingly exposing her to the risk of contracting gonorrhoea through intercourse; the wife did not apprehend the infliction of unlawful force at the time of intercourse as she had consented to the contact. (This point about consenting to the intercourse and thus consenting to the risk of infection was overruled by R v Dica [2004].)

R v Wilson [1984]

HL stated that whilst an assault (apprehension) is not necessary they felt that ‘inflict’ required ‘force being violently applied to the body of V, so that s/he suffers GBH’. Thus GBH had to be caused by the direct application of force. This meant, for example, that it would cover hitting, kicking or stabbing V, but not indirectly causing harm by digging a hole for them to fall into, for example.

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In practice, however, the courts often (historically) gave this a wide interpretation of when force was ‘directly’ applied.

R v Martin [1881]

D placed an iron bar across the exit of a theatre, turned off the lights and shouted ‘fire’. D was guilty of inflicting s.20 GBH even though strictly speaking it is difficult to view the application of force as truly ‘direct’.

R v Lewis [1974]

D shouted threats at V (wife) through a closed door in a second floor flat and tried to break his way in through the door. V was so scared that she jumped from the window and broke both legs. D was convicted of s.20 offence.

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R v Burstow [1997]

Following R v Ireland and Burstow [1997] the HL decided that ‘inflict’ no longer implies the direct application of force, it simply means ‘cause’.

R v Burstow [1997]

D became obsessed with a female acquaintance. He started to stalk her, following her, damaging her car and breaking into her house. He was convicted for this conduct but after his release from prison he continued to stalk her, following her and subjecting her to further harassment, including silent phone calls, abusive phone calls, hate mail, stalking, stealing clothes from washing line, scattering condoms over her garden. This caused V to suffer severe depression, insomnia and panic attacks.

HL: Ds conviction for s.20 GBH upheld. HL confirmed that s.20 GBH can be committed where no physical force has been applied (directly or indirectly) on the body of the V. It was sufficient that he had ‘caused’ such harm to occur.

Therefore, although ‘inflict’ suggests a direct application of force, it need only be shown that Ds actions have led to the consequence of the V suffering GBH.

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Mens Rea

The MR for this offence is defined by the word “maliciously”. This word has been legally translated; in R v Cunningham [1957] as indicating that D has either ‘intentionally or recklessly’ caused the injury, i.e. basic intent. It does not have its ordinary English language definition of necessarily requiring ill will towards the person injured.

Therefore, D must intend to cause some harm or be subjectively reckless as to whether some harm occurs as a result of his/her behaviour.

R v Cunningham [1957]

D tore a gas meter from the wall of an empty house in order to steal the money inside it. This caused some gas to seep into the house next door where a woman was affected by the gas. D was not guilty of the s.23 OAPA 1861 offence of maliciously administering a noxious substance so as to endanger life. He had not intended the harm, nor been subjectively reckless about it as he did not realise there was a risk of the gas escaping.

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MR for the injury

Although the AR of s.20 requires a wound or GBH, it has been decided that there is no need for D to foresee this level of injury. It is therefore sufficient to prove that D intended or was reckless as to causing SOME HARM, not necessarily the serious harm that has resulted. (Like s.47 ABH, it is the consequence that again escalates the charge.)

R v Mowatt [1967] HL established that there is no need to intend or be reckless as to causing the GBH/wound. It is sufficient that D intended or recklessly foresaw the risk of causing some physical harm.

Lord Diplock: “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.”

DPP v Parmenter [1992] D injured his 3 month old baby when he threw the child in the air and caught him. D said he often did this with his slightly older children and did not realise there was any risk of injury at all. He was convicted of s.20 but the HL quashed this as there was no evidence he intended nor foresaw any injury and substituted s.47 ABH which does not require D to foresee any risk of harm. However, had Parmenter foreseen the risk of some physical injury, s.20 would have remained.

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MR for the injury:HIV

Where the offence is concerned with the infection of HIV, D need not have known that he was actually infected, provided he was aware that there was a high risk that he was infected, he will be reckless in transmitting the disease (as D would be aware of a risk).

R v Adaye [2004]

D had been informed by his wife that she was HIV positive. Shortly afterwards he started a new sexual relationship with another woman and failed to use condoms. His new partner contracted HIV and he was prosecuted for s.20 GBH. D had not taken a HIV test and did not conclusively know of his HIV status at the time of transmission (so did not intend to transmit). However, he did have knowledge of a higher level of risk of HIV infection after being informed by his wife and this was sufficient to hold D had acted recklessly.

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This is an offence under s.18 OAPA 1861 which is referred to as “GBH/wounding with intent”. This is considered a much more serious offence than s.20 as can be seen when the punishment and classification is compared. The reason for this difference is that a person acting with intent is considered to be at greater moral fault than a person merely acting recklessly.                                                                                                 Section 20 OAPA 1861 

  • 5 years maximum
  • Discretionary life maximum

Section 18 OAPA 1861

  • Triable either way
  • Indictable 

S.18 OAPA 1861:  “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.”

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AR and MR


S. 18 OAPA 1861 can be committed in 2 ways

1. Wounding

2. Causing GBH


Ds mens rea for the offence must be to:

1. Intend to cause GBH

2. Intend to resist arrest (or intend to prevent the lawful apprehension or detention of either himself or another person and being reckless as to whether this caused injury

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‘Wounding’ and ‘GBH’ are given the same interpretation as for a s.20 OAPA 1861 offence. Note that this section actually uses the word ‘cause’ whereas the word ‘inflict’ is used for a s.20 offence.

R v Ireland and Burstow [1997]

Lord Steyn said that the words ‘cause’ and ‘inflict’ were not synonymous ordinarily, but that it was difficult to see how they differ in (legal) practice. Lord Hope additionally noted that there was very little difference between them. It is therefore only necessary to prove that Ds act was a substantial cause of the wound or GBH.

There are actually 4 combinations of committing a s.18 offence:

  • 1. Malicious wounding with intent to do so;
  • 2. Maliciously causing GBH with intent to do so;
  • 3. Maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person;
  • 4. Maliciously causing GBH with intent to resist or prevent lawful apprehension etc. of any person.
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The prosecution must prove intention. This is the crucial difference that separates s.18 OAPA 1861 from s.20 OAPA 1861. It is a SPECIFIC INTENT OFFENCE and is therefore punishable with life imprisonment.

The intent must be either to:

o Cause GBH.

(Note the difference to s.20 where just ‘some harm’ is sufficient.)

o Avoid arrest.

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Although the word ‘maliciously’ appears in s.18 (seemingly implying basic intention) it has been held in Mowatt [1967] to not add anything to the MR of this section in relation to causing GBH/wounding. Intention (direct or oblique) has same meaning as shown in leading cases on murder.

Moloney [1985] Foresight of consequences is not intention; it is only evidence from which intention can be inferred.

Woollin [1998] Intention cannot be found unless the harm caused was a virtual certainty as a result of the Ds actions and D realised this was so.

Also note that s.18 GBH is the sufficient IMPLIED MALICE AFORETHOUGHT for murder. Therefore, if D intended GBH level harm and V died, D can be guilty of murder even though s/he did not intend to kill in the first place.

R v Vickers [1957] D broke into the cellar of a local sweet shop, owned by an old lady. She came into the cellar and saw D. He then hit her several times with his fists and kicked her once in the head and she died. CA upheld conviction for murder.

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Intent to resist arrest

The word ‘malicious’ is relevant to this aspect of the offence. Where D is trying to resist or prevent arrest or detention, the prosecution must prove two things:

  • 1. D had specific intention to resist or prevent arrest. (If arrest was not lawful, D has not committed an offence in resisting.)
  • 2. D must then act maliciously in respect of the wounding or GBH, i.e. prosecution can prove that either D intended to cause some harm or that D was reckless as to whether his actions caused some harm (the same as for s.20 GBH).

Morrison [1989]

Police officer seized hold of D as she was arresting him. He dived through a window, dragging her with him as far as the window so that her face was badly cut by the glass.

CA: Held that as the word ‘maliciously’ is used in respect of this part of the section, it must have the same meaning as in R v Cunningham [1957]; D either intended injury or realised there was a risk of some harm and took that risk. If D did not intend and did not realise that there was a risk of the PC being injured, there can be no s.18 offence.

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