Grievous bodily harm

Grievous bodily harm (often abbreviated to GBH) is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861.

Section 18 (as amended)

 * 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.

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

Section 20 (as amended)

 * 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 section 18. For this reason the offence under section 18 is often referred to as "wounding with intent" or "causing grievous bodily harm with intent". See Intention in English law for a discussion of the modern test to determine whether any particular consequence is intended.

The offences
None of the words used in these sections are defined elsewhere in the Act, but they have been defined by case law.

Wound
For this purpose, a wound is an injury that breaks the continuity of the skin. There must be a division of the whole skin and not merely a division of the cuticle or upper layer.

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. 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, and neither is a broken bone.

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

Grievous bodily harm
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.

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 his 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 5½ inches long had been used, it was not possible that something less than really serious harm was intended).

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, R v. Chan Fook (1994) 1 WLR 689 accepted that "bodily harm" includes “psychiatric injury”, but it does not include mere emotions such as fear or distress or panic nor does it include states of mind that are not evidence of some “identifiable clinical condition”. when the defendant interrogated and locked up his flatmate after suspecting him of stealing his fiance's engagement ring, the flatmate then became very upset. 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 and 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 sections 20 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 section 20 as opposed to "cause" in section 18 (Burstow, above), "inflicting" GBH under section 20 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 assault occasioning 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 sections 22 to 24 of the Offences against the Person Act 1861.

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 section 47 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, [1995] 1 AC 208 at p.215, Lord Mackay of Clashfern held that "causing" was "wider or at least not narrower than the word 'inflict'", and both words include acts and omissions.

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).

Specific intent
Section 18 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 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 GBH". If this cannot be done, sections 20 and 47 are offences of basic intent and can be an alternative charge, and/or section 47 is a lesser included offence.

The Crown Prosecution Service provide examples of factors which may indicate specific intent; for example: "a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; and using an offensive weapon against, or kicking the victim's head".

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, body modifications (even if carried out by someone who is not trained - see R v Wilson, which involved a husband branding his wife's buttocks), 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.

R v Brown (1993) 2 WLR 556 however ruled that consensual sadomasochism is not legal. This case should be treated with caution, however, as academic debate has suggested that homophobia explains why the decision seems inconsistent with logic. The ruling may well not be followed in future cases, although it remains 'good' (i.e. authoritative) law.

Mode of trial
In England and Wales, the offence under section 18 is an indictable-only offence.

In England and Wales, the offence under section 20 is triable either way.

Sentence
In England and Wales, an offence under section 18 is punishable with imprisonment for life or for any shorter term.

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, 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.

See the Crown Prosecution Service Sentencing Manual for case law on sentencing of section 18 (does not contain any guidance on 14-12-2008) and section 20

The following cases are relevant to section 20:
 * R v. Robertson [1997] EWCA Crim 918 (16 April 1997), 1 Cr.App.R. (S.) 21
 * R v. Byrne [1997] EWCA Crim 1174 (13 May 1997), 1 Cr.App.R. (S.) 105
 * 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

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, 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.

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.