Wounding / Grievous Bodily Harm (s.20 & s.18)

(20) 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 . . .

(18) 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 . . .

The definition of GBH is as above. This offence (section 18 OAPA 1861) however can only be committed where GBH (or wounding) is intended. It bears repeating that the explanation for the charge selection should directly address the question of recklessness or intention, demonstrating how the evidence in the case supports the decision. Evidence of intention may come from different sources, of which the following are a few examples:

selection and use of a particular weapon

severity or duration of attack

making prior threats or planning a serious attack

relevant admissions in interview

If section 20 is a possible alternative verdict to section 18, it is good practice for it to appear on the indictment: Lahaye [2005] EWCA Crim 2847 (and in these circumstances, there should be clear rationale to explain why the prosecution case is that the defendant intended GBH/wounding, why a plea to section 20 is not an acceptable alternative, but that this is a trial issue for the jury to determine).

An offence contrary to section 18 may also be committed where the victim is wounded or caused grievous bodily harm in the course of the defendant resisting or preventing the lawful apprehension of any person. This offence may be used where the injuries amount to grievous bodily harm or injury but where the intention to resist or prevent a lawful apprehension is clearer than the intent to cause a wound or grievous bodily harm.

In the first instance it should be possible to determine whether the injury is of GBH, ABH or battery level.

This must be considered with reference to the victim, i.e. the person’s age, health or any other relevant factors. In Bollom [2003] EWCA Crim 2846 the court said ‘To use this case as an example, these injuries on a 6-foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, or someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment must be made of, amongst other things, the effect of the harm on the individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.’

Examples where the injury is most likely to amount to common assault or battery include (this is not an exhaustive list):

grazes

scratching

abrasions

minor bruising

swelling

reddening of the skin

superficial cuts

Examples where the injury is most likely to amount to ABH as it is more than transient or trifling include (this not an exhaustive list):

damaged teeth or bones

extensive or severe bruising

cuts requiring suturing

loss of consciousness

Examples where the injury is most likely to amount to GBH or more include (this not an exhaustive list):

life changing injuries

significant or sustained medical treatment is required (for instance, intensive care or a blood transfusion) even if full or relatively full recovery follows.

In relation to GBH, prosecutors should also assess the evidence of intention to cause GBH.

A clear focus is required at this first stage on whether the relevant legal tests are made out: are the injuries more than transient or trifling? Are they really serious? For GBH, is there evidence of intention or recklessness? See above for the considerations as to intention.

As a matter of law, prosecutors must prove that the level of injury inflicted amounts to the specific offence charged. However, once the available charges have been identified the level of injury alone may not be determinative of the most appropriate charge considering the specific circumstances on a case-by-case basis.