Non-Fatal Offence in the UK Law part 2: ABH,GBH, GBH With Intent

Actual Bodily Harm (ABH)

If it can be proven that either an assault or a battery that occasions (causes/results in) actual bodily harm (ABH), then the offence is more serious. It is a statutory offence - Offences Against the Person Act 1861 (section 47)

Statutory offence (sometimes enactment) = an offence that has been created by a statute, and is punishable under a statute (a written law passed by a legislative body)

What does “bodily harm” mean in the context of ABH?

Donovan (1934)

Bodily harm means any hurt calculated to interfere with the health or comfort of the victim. It doesn’t have to be permanent or life-threatening, but it has to be more than “transient (temporary) and trifling (negligible)” .

Is non-consensual cutting of a person's hair a s.47 offence (ABH)?

DPP v Smith (2006) & Stefanski (2019)

In both of these cases D cut a woman’s (the victim’s) hair in anger.

The court held that ABH didn’t have to involve any injury, so the cutting of a person's hair could constitute a section 47 (ABH) offence.

Connection between ABH and Assault/Battery

To secure a conviction of ABH, the link that must be shown between ABH and Assault/Battery is found in the word “occasioning”.

It needs to be proven that there is a causal link between the assault or battery and the ABH.

Eg.: The defendant pushes a victim. The victim as a result of that suffers a head injury and has to be monitored at the hospital for a week.The connection between the battery (the pushing of the victim) and the ABH (the head injury) needs to be causal in order for the defendant to be charged with ABH.

CPS guidance when dealing with battery, assault and ABH:

CPS = The Crown Prosecution Service. Prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales.

The prosecutor should consider the following when deciding whether to charge battery/assault or a s.47 offence:

a) Culpability of the offender (liability or responsibility of the offender)

b) Injuries suffered by the complainant (the victim)

c) The overall harm caused

d) The aggravating factors

e) Likelihood of securing a conviction

Can mental or psychiatric harm count as bodily for the purposes of ABH?

Chan Fook (1994)

The D unlawfully detained a person who they thought had stolen from them. This detention was mentally challenging for the V.

The Court of Appeal (CA) concluded that psychiatric harm could be considered ABH, as the word bodily incorporates the nervous system and the brain. However the CA had to condition this.

The condition is: The psychiatric harm has to be a recognised psychiatric condition. Anything else would be insufficient in showing ABH,

Mens Rea

ABH is a constructive crime. It has to have causality with assault or battery. Therefore there is no further mens rea requirement. Only the mens rea for assault/battery (the base crime) needs to be proven.

Grievous Bodily Harm

The two ways of committing the crime of GBH are:

• Unlawful Wounding

• Inflicting GBH

This crime is found in section 20 of the Offences Against the PersonAct 1881 (OAPA). Apart from physical harm, it also includes psychiatric injury. Only a recognised diagnose can constitute GBH. The injury does not have to be permanent or life threatening for it to still be considered GBH. Whether or not GBH is relevant for the case is in most cases a matter for the jury to decide.

What does “wounding” mean in the concept of GBH?

Moriarty and Brooks (1934)

Wounding = a puncture of the inner and the outer skin accompanied by bleeding.

In this case internal injuries do not count as wounding for the purposes of this act. They can still be GBH, just not unlawful wounding.

For wounding to be considered Grievous Bodily Harm, it has to be very serious (in this case it is the matter of the jury to decide whether it is “very serious”). However if a weapon (eg. a knife) is used during the act, even if the injury is not “very serious”, is thought to be appropriate to use GBH (unlawful wounding).

It's a jury's matter to decide!!

Golding (2014)

The defendant has given the victim an STD (sexually transmitted disease). Evidence was given related to the seriousness of the disease and how life altering it was in relation to V.

The medical experts called in, were of the opinion that it constituted ABH not GBH. The Court of Appeal made it clear that this was the jury’s matter to decide.

Wording issues

Initially it was thought that the words “occasion”, “cause” and “inflict” had different meanings in the context of GBH. It was solidified in the cases Ireland and R v Burstow that that isn't the case and their meaning in this context is practically the same.

Mens Rea

Subjective (Cunningham) recklessness = the risk of injury was obvious to the person committing the offence

Maliciousness = intention or subjective (Cunningham) recklessness as to whether some harm is caused. In the case of Mowatt (1968) it was confirmed that the defendant merely has to foresee some physical harm, albeit of a minor character.

Grievous Bodily Harm with Intent

Is a section 18 of OAPA offence and the most serious of non-fatal offences. The maximum sentence is imprisonment for life. The actus reus (the act or omission that comprise the physical elements of a crime) is the same as for GBH. Grievous Bodily Harm with intent also includes recognised psychiatric injury.

Mens Rea

The mens rea is perhaps the most important element of this crime, because of the intent, the crime is much more serious and there is a large jump in sentencing.

The two types of mens rea for GBH with intent are:

1. “With intent to do some grievous bodily harm.”

2. “With intent to resist or prevent the lawful apprehension or detainer of any person.”

• Far less common

• Intent to resist arrest

Is maliciousness useful in the context of GBH with intent?

Morrison (1989)

The D was trying to resist arrest. They jumped through a window whilst an officer was holding onto them. They pulled the officer through the window causing several cuts. Maliciousness proved to be useful in the context of resisting arrest.

In this sense maliciously refers to intent to cause some injury or acting recklessly and as a result of that causing some injury.

Finding Intent (CPS Guidelines)

Factors that may indicate intent:

• Repeated or planned attack

• Deliberate selection of a weapon/ adaptation of an article to cause injury (e.g. breaking a glass before an attack)

• Making prior threats

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*