R v Savage [1991] UKHL 15

House of Lords
Between
RAppellantSavageRespondent
Before
Lord Keith of KinkelDate 7 November 1991
It is Ordered and Adjudged , by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 28th day of November 1990 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House.Cler: Parliamentor:

Judgment: 7 November 1991

HOUSE OF LORDS

REGINA

v.

SAVAGE (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

DIRECTOR OF PUBLIC PROSECUTIONS (APPELLANT)

v.

PARMENTER (RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Keith of Kinkel Lord Brandon of Oakbrook Lord Ackner Lord Jauncey of Tullichettle Lord Lowry

LORD KEITH OF KINKEL

My Lords,I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend, Lord Ackner. I agree with it, and for the reasons he gives would dismiss the appeal in Savage's case and allow that in Parmenter's case to the extent which he proposes.

LORD BRANDON OF OAKBROOK

My Lords,For the reasons given in the speech of my noble and learned friend. Lord Ackner, I would dismiss the appeal in Savage's case and allow the appeal in Parmenter's case but only to the extent indicated by him.

LORD ACKNER

My Lords,These two appeals have been heard together, because they each raise the issue of the mental element which the prosecution have to establish in relation to offences under two sections of the Offences Against the Person Act 1861 24 & 25 Vict. c. 100 (the "Act") viz. section 20, unlawfully and maliciously wounding or inflicting grievous bodily harm and section 47, assault occasioning actual bodily harm.Reg. v. Savage;

The facts and the decision of the Court of Appeal

On 3 October 1989 in the Crown Court at Durham the appellant, Mrs. Savage was indicted and convicted on a single count of unlawful wounding contrary to section 20 of the Act, the particulars of the offence being that on 31 March 1989 she unlawfully and maliciously wounded Miss Beal. She was ordered to undertake 120 hours of community service. The victim, Miss Beal, was a former girlfriend of Mrs. Savage's husband. There had been some bad feeling between these two young women, although they had never previously met. On the evening of 31 March 1989 they were both in the same public house, but not together. Mrs. Savage pushed her way through to the table where Miss Beal was sitting with some friends. She had in her hand a pint glass which was nearly full of beer. Having said "Nice to meet you darling", she then threw the contents of the glass over Miss Beal. Unfortunately, not only was Miss Beal soaked by the beer, but, contrary to Mrs. Savage's evidence, she must have let go of the glass, since it broke and a piece of it cut Miss Beal's wrist. The Jury, by their verdict, concluded either that the appellant had deliberately thrown not only the beer but also the glass at Miss Beal or, alternatively, that while deliberately throwing the beer over Miss Beal, the glass had accidentally slipped from her grasp and it, or a piece of it, had struck Miss Beal's wrist, but with no intention that the glass should hit or cut Miss Beal.The material words of section 20 read as follows:"20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person . . ." In the course of his summing up the recorder said:
"It is alleged that on 31 March Mrs. Savage unlawfully and maliciously wounded Tracey Beal. What does this mean? First of all it means that you must find Susan Savage did some unlawful action, unlawful in the sense that it was not in self-defence and it was not a mere accident; malicious in the sense that it was deliberate and aimed against Tracey Beal and that as a result of that unlawful, deliberate act aimed against Tracey Beal, Tracey suffered the wound . . . She went up to her . . . and threw deliberately the contents of a pint glass at her. That is an assault, that is an unlawful action aimed deliberately against Tracey Beal.

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Mrs. Savage admits it ... If you were sure that in throwing the liquid from the glass she let go of the glass unintentionally, but in doing this unlawful act she let go of the glass and it struck Miss Beal, then that is a consequence of her unlawful act. If a wound resulted from it then that is unlawful wounding."In the Court of Appeal reference was made to Reg. v. Mowatt [1968] 1 QB 421 and to the following statement in the judgment of Diplock L.J., giving the judgment of the court at p. 426C:
"In the offence under section 20, and in the alternative verdict which may be given on a charge under section 18, for neither of which is any specific intent required, 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. That is what is meant by 'the particular kind of harm' in the citation from Professor Kenny. 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.
"In many cases in instructing a jury upon a charge under section 20, or upon the alternative verdict which may be given under that section when the accused is charged under section 18, it may be unnecessary to refer specifically to the word 'maliciously'."
The Court of Appeal observed that despite doubts which had been expressed about the above statement of the law, it was binding on the court and that the test imported by the words "maliciously" is a subjective and not an objective one. In the opinion of the Court of Appeal, it accordingly followed that the recorder was wrong to direct the jury that "malicious" meant deliberate and aimed at Tracey Beal with the result that a wound occurred. The recorder omitted to direct the jury that they had to find that Mrs. Savage foresaw that some physical harm would follow as a result of what she did. The question as to whether she foresaw that her act was likely to cause some harm, other than wetting Miss Beal with the beer, was a question they should have been asked to consider. In view of this misdirection, the Court of Appeal quashed the verdict and then went on to consider whether they should substitute another verdict. The powers of the Court of Appeal so to do are contained in section 3 of the Criminal Appeal Act 1968 which reads as follows:(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

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"(2) The court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity."
It was, of course, common ground that Mrs. Savage was guilty of common assault. But in Reg. v. Mearns [1991] 1 Q.B. 82 the Court of Appeal had concluded that as a result of the coming into force of the Criminal Justice Act 1988 sections 39 and 40, common assault is no longer a possible alternative verdict on a trial on indictment for a more serious offence unless, originally or by way of amendment, a specific count alleging common assault is added to the indictment. There was no such count in the indictment.The court then considered the offence under section 47, which is an indictable offence. The material words of this section are as follows:
"47. Whosoever shall be convicted upon an Indictment of any assault occasioning actual bodily harm shall be liable . .
Could the jury have found Mrs. Savage guilty of that offence?Section 6(3) of the Criminal Law Act 1967 provides:
"Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
This raised two questions for the court:Did the allegation of wounding import or include an allegation of assault? In the view of the Court of Appeal (Note) [1990] 2 W.L.R. 418, 421E 'in the ordinary way, unless there are some quite extraordinary facts, it inevitably does'.Did that assault, albeit unintentional, occasion actual bodily harm? The jury might have concluded that Mrs. Savage accidentally let go of her glass, but the glass shattered on the table or that in the action of throwing she, while still holding it, broke it on the table and then a piece of the broken glass cut Miss Seal. However in neither case had it been suggested that as a matter of causation, the assault did not occasion the actual bodily harm, albeit unintentionally. Nevertheless, counsel for Mrs. Savage invited the court to decide that some element of recklessness had to be established for the offence of assault

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occasioning actual bodily harm to be proved. The Court of Appeal rejected this invitation in the following terms [1991] 2 W.L.R. 418, 421-422:
"That submission, in our view, seeks to relate the concept of recklessness to the wrong element of the offence. The mens rea required is that which is a necessary element in the assault. In this case, the assault was the intentional throwing of the beer over Tracey. Thus, there was no need to consider recklessness. The remaining question is, did the assault occasion the actual bodily harm which Tracey undoubtedly suffered? This is a question of causation, in relation to which recklessness is irrelevant. The test is objective - was the cut on Tracey Seal's wrist a natural consequence of the appellant's deliberate action in throwing the beer? In our view the answer to this question could only be 'Yes'."

The certified questions

The Court of Appeal, accordingly, substituted a verdict of guilty of assault occasioning actual bodily harm, contrary to section 47 of the Act. On 28 November 1990 the Court of Appeal gave leave to appeal, certifying the following points of law to be of general public importance:
"(1) Whether a verdict of guilty of assault occasioning actual bodily harm is a permissible alternative verdict on a count alleging unlawful wounding contrary to section 20 of the Offences Against the Persons Act 1861.
"(2) Whether a verdict of guilty of assault occasioning actual bodily harm can be returned upon proof of an assault and of the fact that actual bodily harm was occasioned by the assault.
"(3) If it is proved that an assault has been committed and that actual bodily harm has resulted from that assault, whether a verdict of assault occasioning actual bodily harm may be returned in the absence of proof that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.
It is perhaps convenient at this stage to observe that in order for Mrs. Savage to succeed in relation to the first certified question your Lordships must conclude that the decision of this House in Reg. v. Wilson (Clarence) [1984] 1 A.C. 242 was wrong. As regards the second certified question, that the intent required in section 47 relates not only to the assault, but also to the consequences of the assault this clearly overlaps with the third certified question.

Reg. v. Parmenter

The facts and the decision of the Court of Appeal;Paul Parmenter was born on 8 February 1988. Between that date and 11 May 1988 his father, the appellant, Philip Mark Parmenter caused his baby son to suffer injuries to the boney

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structures of the legs and right forearm. He was indicted on eight counts, six represented three-paired alternatives, laid under section 18 and 20 of the Act, the seventh count alleged a separate offence under section 20, and the eighth count to which he pleaded guilty from the outset, alleged cruelty to a person under the age of 16. The only issue before the jury was whether Mr. Parmenter had acted with the relevant intent, his case being that he did not realise that the way he handled the child would cause injury. At the conclusion of the trial in February 1989 at the Chelmsford Crown Court, Mr. Parmenter was acquitted of the three section 18 offences and convicted of all four section 20 offences.On the crucial issue of intent, the trial

judge directed the jury as follows:

"... Let me tell you what "maliciously" means. First of all, let me tell you what it does not mean. If you and I meet in the corridor outside and we were discussing the word maliciously, one I rather expect would say, and I expect you would too, it means something like spiteful, something like that. That does not apply in the framework of this section of the Act of Parliament. Let me tell you what maliciously means, because in the circumstances of this case it is very important indeed. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the type described in the section - and here comes the important part - it is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. Two of you are writing it down, I see. I say it again, like a shipping forecast; it is enough that he should have foreseen that some physical harm to some person, albeit of a minor character might result. That is what you have to consider. So, members of the jury, the questions that you have to ask yourselves on counts four, five and six only arise if he is not guilty on counts one, two and three, and they are these. Are we sure that he inflicted grievous bodily harm of the nature described in the Indictment? If the answer to the question is yes then: are we sure that he should have foreseen that some physical harm, albeit of a minor character, might result? If the answer to that question is yes, he is guilty. If the answer to that question is no, he is not guilty".This direction was founded on Reg. v. Mowatt, [1968] 1 Q.B. 421 and in particular the following passage in the judgment at pp. 425-426:
"No doubt upon these facts the jury should be instructed that they must be satisfied before convicting the accused that he was aware that physical harm to some human being was a possible consequence of his unlawful act in wrenching off the gas meter. In the words of the court, 'maliciously in a statutory crime postulates foresight of consequence', and upon this proposition we do not wish to cast any doubt. But the court in that case also expressed approval obiter of a more general statement by Professor Kenny [Kenny's Outline of Criminal Law, 18th ed. (1962), p. 202] which runs as follows:

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'in any statutory definition of a crime, "malice" must be taken not in the old yague sense of wickedness in general, but as requiring either(1) an actual intention to do the particular kind of harm that in fact was done, or(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill will towards the person injured'.
"This generalisation is not in our view, appropriate to the specific alternative statutory offences described in sections 18 and 20 of the Offences against the Person Act, 1861, and section 5 of the Prevention of Offences Act, 1851, and if used in that form in the summing-up is liable to bemuse the jury. In section 18 the word 'maliciously' adds nothing. The intent expressly required by that section is more specific than such element of foresight of consequences as is implicit in the word 'maliciously' and in directing a jury about an offence under this section the word 'maliciously' is best ignored.
"In the offence under section 20, and in the alternative verdict which may be given on a charge under section 18, for neither of which is any specific intent required, 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. That is what is meant by 'the particular kind of harm' in the citation from Professor Kenny. 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".It will be recalled that the final paragraph of the above quotation is that to which the Court of Appeal made specific reference in the Savage case.The Court of Appeal then observed that at first sight it appeared that the direction given by the trial judge was quite unexceptionable, containing as it did a verbatim quotation from Mowatt. However, on closer inspection it was apparent that he had inadvertently imparted a fundamental change to the principle laid down in Mowatt. The Court of Appeal [1991] 2 W.L.R. 408, 411-412, said:
"It seems to us clear, when the judgment in Mowatt is read as a whole, that the court was stating two propositions, one positive and one negative. The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act. This is subject to a negative qualification, that the

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defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred.
"If one now returns to the summing up in the present case we find the judge posing the crucial question as follows:-
'Are we sure that he inflicted grievous bodily harm of the nature described in the Indictment? If the answer to the question is yes, then: are we sure that he should have foreseen that some physical harm, albeit of a minor character, might result? If the answer to that question is yes, he is guilty. If the answer to that question is no, he is not guilty'.
"In the judgment in Mowatt the words '. . . should have foreseen . . .' were, we believe, intended to bear the same meaning as 'did foresee' or simply 'foresaw'. Read out of context, however, the ordinary meaning of the words 'should have' is 'ought to have'. By reading the passage to the jurors in isolation from its context the judge thus inadvertently created a real risk that the jurors would believe that they were being directed to ask themselves, not whether the appellant actually foresaw that his acts would cause injury, but whether he ought to have foreseen it. Indeed we would be prepared to go further and say that this is the natural understanding of the passage which we have just quoted. At any rate, whether we are right in this or not there was an ambiguity which went to the heart of the case, for while there was a possibility that the jury might feel doubt about whether the appellant actually intended to injure the child, there seems on the evidence to have been little room for question that, judged objectively, he 'should have' realised that what he did would lead to injury."
The Court of Appeal accordingly quashed the convictions on the four counts under section 20 (the trial judge had in fact fallen into the same error as that made by the judge in Reg. v. Grimshaw [1984] Crim. L.R. 108. The Court then had to consider whether they could and should substitute for the convictions which they had quashed, alternative verdicts of guilty under section 47 of the Act.They then discovered that a curious situation had emerged, namely, that two different divisions of the Court of Appeal, (Criminal Division) had, contemporaneously but unwittingly, delivered judgments on the necessary intent in section 47, but had unfortunately reached opposite conclusions. The case of Savage was one of those cases and the other is Reg. v. Spratt [1990] 1 W.L.R. 1073.

Reg. v. Spratt

The facts and the decision of the Court of Appeal;A young girl was struck twice whilst playing in the forecourt of a block of flats by two airgun pellets, which had been fired from a window by the appellant. He admitted to the police that he had fired a few shots out of the window, not in order to hit anyone, but to see how far the pellets would go. He was duly

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charged with an offence under section 47 of the Act to which he pleaded guilty. The basis of that plea, as was explained to the trial judge, was that the appellant accepted that he had been reckless, and that his recklessness took the shape of a failure to give any thought to the possibility of a risk. However, it was contended on his behalf that if he had known there were children in the area, he would not have fired the shots. The judge imposed a sentence of 30 months' imprisonment, against which the appellant appealed. When the matter came before the full court, the Court itself raised the question whether, if the facts asserted on the appellant's behalf were true, he had in law committed the offence to which he had pleaded guilty. Subsequently leave was given to pursue an appeal against conviction. On the appeal it was argued for the Crown that the appellant ought objectively to have appreciated that there was a risk, and that this was enough to establish an offence under section 47, albeit that in the light of the decision of the Court of Appeal in Reg. v. Cunningham [1957] 2 Q.B. 396, to which further reference will be made hereafter, this would not be sufficient for the purpose of section 20. The court, having considered a number of subsequent cases, including in particular three decisions of your Lordships' House, namely, Reg. v. Caldwell [1982] AC 341 , Reg. v. Lawrence [1982] A.C. 510 and Reg. v. Seymour (Edward) [1983] 2 A.C. 493 concluded that the "subjective type of recklessness" furnished the test for sections 20 and 47 alike and that this had been decided by the Court of Appeal in Reg. v. Venna [1976] QB 421 , also a case to which further reference will be made hereafter.In Reg. v. Spratt McCowan L.J. giving the judgment of the Court said, at pp. 1082-1083:
"Finally, Mr. Arlidge argues that while Reg. v. Venna [1976] Q.B. 421 says that Cunningham recklessness will amount to guilt under section 47, it does not say that nothing else will do. In other words, it is now possible to add on failure to give thought to the possibility of risk as also qualifying for guilt. We do not accept that interpretation of the decision in Reg. v. Venna. Moreover, we are not attracted by what would be the consequence of accepting Mr. Arlidge's argument, namely that responsibility for the offence of assault occasioning actual bodily harm (in respect of which Parliament used neither the word 'maliciously' nor 'recklessly') would be wider than for the offence of unlawful wounding (in respect of which Parliament used the word 'maliciously')."
In relation to these two decisions, Savage and Spratt, the Court of Appeal in the Parmenter case [1991] 2 W.L.R. 408 concluded that in one respect they were in harmony. Where the defendant neither intends nor adverts to the possibility that there will be any physical contact at all, then the offence under section 47 would not be made out. That is because there would have been no assault, let alone an assault occasioning actual bodily harm. Further there was no conflict where the defendant does advert to the possibility of harm, albeit not necessarily of the kind which actually happened. In such a case there clearly would be an assault. However, the two decisions were in conflict as to whether an intent is required in relation to the consequences of the assault. The Court of Appeal having decided to prefer the

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decision in the Spratt case, asked themselves whether there was implicit in the section 20 verdicts (given in the light of a direction in terms of "objective intent") a finding that the appellant subjectively intended or recognised the risk of physical harm. Understandably they concluded that the answer must be in the negative. Accordingly the court allowed the appeal, declining to substitute any other verdict on those counts where the convictions were quashed. The court concluded by observing, at p. 417 that the authorities on the intent required in sections 20 and 47:". . . can no longer live together, and that the reason lies in a collision between two ideas, logically and morally sustainable in themselves, but mutually inconsistent, about whether the unforeseen consequences of a wrongful act should be punished according to the intent (Reg. v. Cunningham [1957] 2 Q.B. 396) or the consequences (Reg. v. Mowatt [1968] 1 QB 421 .")On 6 November 1990 the Court of Appeal granted leave to appeal to your Lordships' House and certified the following points of law to be of general public importance:"l.(a) Whether in order to establish an offence under Section 20 of the Offences against the Person Act 1861 ("the Act") the prosecution must prove that the defendant actually foresaw that his act would cause the particular kind of harm which was in fact caused, or whether it is sufficient to prove that (objectively) he ought so to have foreseen.
"(b) The like question in relation to section 47 of the Act.
"2.(a) For the purposes of the answer to Question l.(a), whether the particular kind of harm to be foreseen may be any physical harm, or harm of (i) the nature, or (ii) the degree, or (iii) the nature and the degree of the harm which actually occurred.

"(b) The like question in relation to section 47 of the Act."

It will be observed that some of the certified questions in Parmenter overlap with those in Savage.My Lords,I will now seek to deal with the issues raised by these appeals seriatim.I Is a verdict of guilty of assault occasioning actual bodily harm a permissible alternative verdict on a count alleging unlawful wounding contrary to section 20 of the Act.The single count in the case of Savage was in common form. It read as follows:

STATEMENT OF OFFENCE

UNLAWFUL WOUNDING, CONTRARY TO SECTION 20 OF THE OFFENCES AGAINST THE PERSON ACT 1861.

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PARTICULARS OF OFFENCE

SUSAN SAVAGE on 31st day of March 1989 unlawfully and maliciously wounded Tracey Beale.The Indictment Rules 1971 Rule 5 provides:
"5(1) Subject only to the provisions of Rule 6 of these Rules, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence of which the accused person is charged, describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge."
Brief though the particulars of the offence were, the indictment can in no way be said to be defective. Clearly, if an accused considers that he is entitled to further particulars of the offence with which he is charged, he can seek those from the prosecution and if unreasonably refused, he can obtain an order from the court.In Reg. v. Wilson [1984] A.C. 247 the defendant was tried on an indictment containing a single count alleging an offence of contravening section 20 of the Act, the particulars being that he "maliciously inflicted grievous bodily harm on L." (the second limb of section 20). The jury were directed that, if they were not satisfied that the harm inflicted was grievous bodily harm but were satisfied that it was actual bodily harm, they could convict of the alternative offence of assault occasioning actual bodily harm contrary to section 47 of the Act. The jury having convicted the defendant on this lesser offence, he appealed against his conviction to the Court of Appeal (Criminal Division). Being bound by its decision in Reg. v. Springfield (1969) 53 Cr. App. R. 608, it held that the alternative verdict was not open to the jury, allowed the appeal and quashed the conviction. The appeal by the Crown to your Lordships' House was allowed and the conviction restored, your Lordships holding that the allegations in the charge under section 20 of the Act, at least, impliedly included allegations of assault occasioning actual bodily harm which constituted "another offence" within the ambit of section 6(3) of the Criminal Law Act 1967, the terms of which I have set out earlier in this speech.Since Mr. Goldsack Q.C. on behalf of Mrs. Savage sought to persuade your Lordships that the decision in Springfield was correct and should never have been overruled by your Lordships, it is necessary to set out at some length the reasoning of Lord Roskill, with whose speech Lord Eraser of Tullybelton, Lord Elwyn- Jones, Lord Edmund-Davies and Lord Brightman all agreed.What had to be determined was the true construction of the following words in section 6(3) set out above - "... the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence . . .". The starting point was accepted to be the historical background to the legislation. This had been correctly stated in Reg. v. Lillis [1972] 2 Q.B. 236, a five-judge Court of Appeal (Criminal Division), in a judgment delivered by Lawton L.J. who described the purposes and effect of section 6(3) at p. 240 as follows:

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"Before the passing of the Criminal Law Act 1967 the law applicable to the kind of problem which presented itself to the trial judge in this case was partly to be found in the common law and partly in a number of statutes. At common law on an indictment charging felony the accused could be convicted of a less aggravated felony of which the ingredients were included in the felony charged and similarly as regards misdemeanours: but except under statute a conviction for a misdemeanour was not allowed on a charge of felony. The object of section 6(3) of the Criminal Law Act 1967 was to provide a general rule continuing and combining the rules of common law and the provisions of most of the statutes which enabled alternative verdicts to be returned in specific cases or types of cases."
In dealing with the position prior to the Act of 1967 Lord Roskill observed [1984] A.C. 247, 256:
"My Lords, there can be no doubt that before 1967 the view was widely held that at common law upon a charge under section 20, a defendant might be convicted of at least common assault: see Archbold Criminal Pleading Evidence and Practice 36th ed. (1966), para. 575."
Having set out the statement in that paragraph Lord Roskill continued, at p. 256G:
"It will be within the recollection of those of your Lordships who have in the past sat, either as recorders or chairmen of quarter sessions, that this statement in Archbold accurately stated the practice, at least before 1967. If this be right, it is not easy to see why in principle such a defendant should not equally, at common law, be liable to conviction under section 47. The current edition of Archbold, 41st ed. (1982) at para. 20-145 states that upon an indictment under section 20 either for unlawful wounding or for inflicting grievous bodily harm, the defendant may be convicted of common assault. Thus, long after 1967, the same view was expressed as I have already quoted from the 36th edition, published in 1966. These two passages justify the statement by Mr. Hill Q.C. for the prosecution, in opening these appeals, that both before and after 1967 the view was widely held that assault, whether common assault or assault occasioning actual bodily harm, was available at common law as an alternative charge to inflicting grievous bodily harm contrary to section 20 in the event of an acquittal upon that latter charge."
Lord Roskiil then considered the crucial passage in the judgment of Sachs L.J. in the Springfield case 53 Cr.App.R. 608, 610-611 which reads as follows:
"The question accordingly arises as follows. Where an indictment thus charges a major offence without setting out any particulars of the matters relied upon, what is the correct test for ascertaining whether it contains allegations which expressly or impliedly include an allegation of a lesser offence? The test is to see whether it is a necessary step

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towards establishing the major offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?"In commenting on this passage, Lord Roskill observed, at p. 258:
"First, the words 'major offences' and 'lesser offences' nowhere appear in the subsection. Secondly, the subsection says nothing about it being 'a necessary step' towards establishing the 'major offence' to prove the commission of the lesser offence, so that the so-called lesser offence has to be an 'essential ingredient' of the major offence. Neither the adjective 'necessary' nor the adverb 'necessarily' appear anywhere in the subsection."
It had been submitted by Mr. Hill that what the Court of Appeal had done in Springfield was to hold that the expressions 'amount to 1 and 'include' in section 6(3) were synonymous but they are alternatives and must in fact be meant to apply to different concepts. The necessary step test can apply to the expression 'amount to' but it did not fit with the word 'include'. As to this, Lord Roskill said, at pp. 258-259:
"There is, in my view, a clear antithesis in the subsection between 'amount to 1 and 'include'; the word 'or' which joins those two words is clearly disjunctive and must not be ignored. If either limb of the phrase is satisfied then the stated consequences can follow . . .In the present case, the issue to my mind is not whether the allegations in the section 20 charge, expressly or impliedly, amount to an allegation of a section 47 charge, for they plainly do not. The issue is whether they either expressly or impliedly include such an allegation. The answer to that question must depend upon what is expressly or impliedly included in a charge of 'inflicting any grievous bodily harm.' . . . What, then, are the allegations expressly or impliedly included in a charge of 'inflicting grievous bodily harm' Plainly that allegation must so far as physical injuries are concerned, at least impliedly if not indeed expressly, include the infliction of 'actual bodily harm' because infliction of the more serious injuries must include the infliction of the less serious injuries. But does the allegation of 'inflicting' include an allegation of 'assault'?"
Having reviewed the relevant authorities Lord Roskill was content to accept that there can be an infliction of grievous bodily harm contrary to section 20 without an assault being committed. For example, grievous bodily harm could be inflicted by creating panic. Another example provided to your Lordships in the course of the argument in the current appeals was interfering with the braking mechanism of a car, so as to cause the driver to be involved in an accident and thus suffer injuries. These are somewhat far-fetched examples. The allegation of inflicting grievous bodily harm or for that matter wounding, as was observed by Glidewell L.J. (at p. 421), giving the judgment of the court in the Savage case [1991] 2 W.L.R. 418, inevitably imports or includes an allegation of assault, unless there are some quite extraordinary facts.

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The critical question remained - do the allegations in a section 20 charge "include either expressly or by implication" allegations of assault occasioning actual bodily harm. As to this, Lord Roskill concluded (p. 261) as follows:
"If 'inflicting' can, as the cases show, include 'inflicting by assault' then even though such a charge may not necessarily do so I do not for myself see why on a fair reading of section 6(3) these allegations do not at least impliedly include 'inflicting by assault'. That is sufficient for present purposes though I also regard it as also a possible view that those former allegations expressly include the other allegations.
I respectfully agree with this reasoning and accordingly reject the submission that Wilson was wrongly decided. I would therefore answer the first of the certified questions in the Savage case in the affirmative. A verdict of guilty of assault occasioning actual bodily harm is a permissible alternative verdict on a count alleging unlawful wounding contrary to section 20 of the Offences Against the Persons Act 1861.II Can a verdict of assault occasioning actual bodily harm be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault, or must the prosecution also prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused ?Your Lordships are concerned with the mental element of a particular kind of assault, an assault "occasioning actual bodily harm". It is common ground that the mental element of assault is an intention to cause the victim to apprehend immediate and unlawful violence or recklessness whether such apprehension be caused (see Venna [1976] QB 421 .) It is of course common ground that Mrs. Savage committed an assault upon Miss Beal when she threw the contents of her glass of beer over her. It is also common ground that however the glass came to be broken and Miss Beal's wrist thereby cut, it was, on the finding of the jury, Mrs. Savage's handling of the glass which caused Miss Beal "actual bodily harm". Was the offence thus established or is there a further mental state that has to be established in relation to the bodily harm element of the offence? Clearly the section, by its terms, expressly imposes no such a requirement. Does it do so by necessary implication? It neither uses the word "intentionally" or "maliciously". The words "occasioning actual bodily harm" are descriptive of the word "assault", by reference to a particular kind of consequence.In neither Savage, nor Spratt, nor in Parmenter, was the court's attention invited to the decision of the Court of Appeal in Reg. v. Roberts (1972) 56 Cr. App. R. 95. This is perhaps explicable on the basis that this case is not referred to in the index to the current (43rd) (1988) edition of Archbold, Criminal Pleading, Evidence and Practice. The relevant text, at paragraph 20-117 states:
"The mens rea required [for actual bodily harm] is that required for common assault"

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without any authority being provided for this proposition.It is in fact Roberts' case which provides authority for this proposition. Roberts was tried on an indictment which alleged that he indecently assaulted a young woman. He was acquitted on that charge, but convicted of assault occasioning actual bodily harm to her. The girl's complaint was that while travelling in the defendant's car he sought to make advances towards her and then tried to take her coat off. This was the last straw, and although the car was travelling at some speed, she jumped out and sustained injuries. The defendant denied he had touched the girl. He had had an argument with her and in the course of that argument she suddenly opened the door and jumped out. In his direction to the jury the chairman of Quarter Sessions stated "If you are satisfied that he tried to pull off her coat and as a result she jumped out of the moving car then your verdict is guilty".It was contended on behalf of the appellant that this direction was wrong since the chairman had failed to tell the jury that they must be satisfied that the appellant foresaw that she might jump out of the car as a result of his touching her, before they could convict. The court rejected that submission. The test, said the court, at p. 102:"Was it [the action of the victim which resulted in actual bodily harm] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft" in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury".Accordingly no fault was found (p.103) in the following direction of the chairman to the jury:
"If you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her that he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car."
Thus once the assault was established, the only remaining question was whether the victim's conduct was the natural consequence of that assault. The words "occasioning" raised solely a question of causation, an objective question which does not involve enquiring into the accused's state of mind.

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In Reg. v. Spratt [1990] 1 W.L.R. 1073 McCowan L.J. said, at p. 1082:
"However, the history of the interpretation of the Act of 1861 shows that, whether or not the word "maliciously" appears in the section in question, the courts have consistently held that the mens rea of every type of offence against the person covers both actual intent and recklessness, in the sense of taking the risk of harm ensuing with foresight that it might happen."
The Lord Justice then quotes a number of authorities for that proposition. The first is Reg. v. Ward (1871) L.R. 1 C.C.R. 356, but that was a case where the prisoner was charged with wounding with intent (section 18) and convicted of malicious wounding (section 20); next, Reg. v. Bradshaw (1878) 14 Cox C.C. 83, but that was a case where the accused was charged with manslaughter, which has nothing to do with a section 47 case. Then Reg. v. Cunningham [1957] Q.B. 396, is quoted, a case under section 23 of the Act concerned with unlawfully and maliciously administering, etc., a noxious thing which endangers life. And finally Reg. v. Venna [1976] QB 421 in which there was no issue as to whether in a section 47 case, recklessness had to extend to actual bodily harm. Thus, none of the cases cited were concerned with the mental element required in section 47 cases. Nevertheless, the Court of Appeal in Parmenter [1991] 2 W.L.R. 408 preferred the decision in Spratt's case [1990] 1 W.L.R. 1073 to that of Savage (Note) [1991] 2 W.L.R. 418 because the former was "founded on a line of authority leading directly to the conclusion there expressed (p. 415F)."My Lords,in my respectful view, the Court of Appeal in Parmenter were wrong in preferring the decision in Spratt's case. The decision in Roberts' case 56 Cr.App.R. 95 was correct. The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.III In order to establish an offence under section 20 of the Act, must the prosecution prove that the defendant actually foresaw that his act would cause harm, or is it is sufficient to prove that he ought so to have foreseen?Although your Lordships' attention has been invited to a plethora of decided cases, the issue is a narrow one. Is the decision of the Court of Criminal Appeal in Reg. v. Cunningham [1957] 2 Q.B. 396 still good law, subject only to a gloss placed upon it by the Court of Appeal Criminal Division in Reg. v. Mowatt [1968] 1 QB 421 , or does the later decision of your Lordships' House in Reg. v. Caldwell [1982] AC 341 provide the answer to this question?

These three decisions require detailed consideration. Reg. v. Cunningham

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As previously stated this case concerned a charge brought under section 23 of the Act, which makes it an offence "unlawfully and maliciously" to administer etc., to any person any poison or other noxious thing so as to endanger life or inflict grievous bodily harm. Cunningham, in stealing a gas meter and its contents from the cellar of a house fractured a gas pipe, causing coal gas to escape. This percolated through the cellar wall to the adjoining house, entered a bedroom with the result that Mrs. Wade, who was asleep, inhaled a considerable quantity of the gas, with the result that her life was endangered. Cunningham's conviction was quashed because of the misdirection by the trial judge as to the meaning of "maliciously" in section 23 of the Act.Byrne J., in a reserved judgment given on behalf of the court accepted as accurate the following statement of the law as set out by Professor C. 5. Kenny in the 1st edition of his Outlines of Criminal Law published in 1902:
"In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured."
The court held that the jury should have been left to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.

Reg. v. Caldwell

Mr. Sedley Q.C. has not invited your Lordships to reconsider the majority decision of your Lordships' House. He chose a much less ambitious task. He submits that Reg. v. Cunningham cannot be bad law, since it is inconceivable that your Lordships' House, in its majority judgment, would have steered such a careful path around it. Your Lordships having power to overrule it, would, so he submits, have felt obliged to do so in order to avoid creating a false double standard of "recklessness". He further submits that it is significant that Lord Diplock, whose speech represented the views of the majority of your Lordships, nowhere suggests that his own judgment in the case of Mowatt, [1968] 1 QB 421 which clarified or modified Cunningham, was of doubtful validity.In the light of these submissions it is necessary to deal in some detail with the Caldwell decision [1982] AC 341 .The case was principally concerned with the meaning of the word "reckless" in a statute enacted less than 10 years before the decision of your Lordships' House. Caldwell was indicted upon two counts of arson under section 1(1) and (2) respectively, of the Criminal Damage Act 1971. That section reads as follows:
"(1) A person who without lawful excuse destroys or damages any property belonging to another intending to

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destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another - ( a ) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and ( b ) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence. (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson."Count 1 contained the charge of the more serious offence under section 1(2), which required intent to endanger the life of another or recklessness as to whether the life of another would be endangered. To this count Cunningham pleaded not guilty. He relied upon his self-induced drunkenness as a defence, on the ground that the offence under subsection (2) was one of "specific intent" in the sense in which that expression was used in speeches in your Lordships' House in Reg. v. Majewski [1977] AC 443 . Count 2 contained the lesser offence under section 1(1) to which he pleaded guilty.The recorder directed the jury that self-induced drunkenness was not a defence to count 1, and the jury convicted him on this count. The Recorder sentenced him to three years' imprisonment on count 1 but passed no sentence on count 2, the lesser offence, to which he had pleaded guilty. On appeal, the Court of Appeal held that her direction to the jury as to the effect of self-induced drunkenness on the charge in count 1 was wrong. They set aside the conviction on that count; but left the sentence of three years' imprisonment unchanged as they considered it to be an appropriate sentence on count 2.The question of law certified for the opinion of Your Lordships' House was:
"Whether evidence of self-induced intoxication can be relevant to the following questions - (a) Whether the defendant intended to endanger the life of another; and (b) Whether the defendant was reckless as to whether the life of another would be endangered, within the meaning of section l(2)( b ) of the Criminal Damage Act 1971."
Your Lordships (Lord Diplock, Lord Keith of Kinkel and Lord Roskill) dismissed the appeal holding, that if a charge under section 1(2) of the Act was so framed as to charge the defendant only with the intent to endanger life, evidence of self-induced drunkenness could be relevant as a defence, but (Lord Wilberforce and Lord Edmund-Davies dissenting) not when the charge included a reference to being reckless as to whether life would be endangered.At the outset of his speech (p. 350) Lord Diplock drew attention to the fact that the certified question recognised that under section l(2)( b ) there are two alternative states of mind as respects endangering the life of another, and that the existence of either of them on the part of the accused is sufficient to

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constitute the mens rea needed to convert the lesser offence under section 1(1) into the graver offence under section 1(2). One intention is that a particular thing should happen in consequence of the actus reus, viz. that the life of another person should be endangered and the other intention is recklessness as to whether that particular thing should happen or not. His Lordship then continued:
"My Lords, the Criminal Damage Act 1971 replaced almost in their entirety the many and detailed provisions of the Malicious Damage Act 1861. Its purpose, as stated in its long title, was to revise the law of England and Wales as to offences of damage to property. As the brevity of the Act suggests, it must have been hoped that it would also simplify the law.
"In the Act of 1861, the word consistently used to describe the mens rea that was a necessary element in the multifarious offences that the Act created was 'maliciously' - a technical expression, not readily intelligible to juries, which became the subject of considerable judicial exegesis. This culminated in a judgment of the Court of Criminal Appeal in Reg. v. Cunningham [1957] 2 Q.B. 396, 399 which approved, as an accurate statement of the law, what had been said by Professor Kenny in the first edition of his Outlines of Criminal Law published in 1902:
"In any statutory definition of a crime, malice must be taken ... as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).'
"My Lords, in this passage Professor Kenny was engaged in defining for the benefit of students the meaning of 'malice' as a term of art in criminal law. To do so he used ordinary English words in their popular meaning. Among the words he used was 'recklessness', the noun derived from the adjective 'reckless,' of which the popular or dictionary meaning is: careless, regardless, or heedless, of the possible harmful consequences of one's acts. It presupposes that if thought were given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it. Conscious of this imprecision in the popular meaning of recklessness as descriptive of a state of mind, Professor Kenny, in the passage quoted, was, as it seems to me, at pains to indicate by the words in brackets the particular species within the genus reckless states of mind that consituted 'malice' in criminal law. This parenthetical restriction on the natural meaning of recklessness was necessary to an explanation of the meaning of the adverb 'maliciously' when used as a

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term of art in the description of an offence under the Malicious Damage Act 1861 (which was the matter in point in Reg. v. Cunningham [1957] 2 Q.B. 396); but it was not directed to and consequently has no bearing or the meaning of the adjective 'reckless' in section 1 of the Criminal Damage Act 1971. To use it for that purpose can, in my view, only be misleading."The distinction which his Lordship was drawing between the meaning of the adverb "maliciously" when used as a term of art in the description of an offence under the Act of 1861 and that of the adjective "reckless" in section 1 of the Act of 1971 was reemphasised by him in the following passage, at pp. 351G-352E:
"My Lords, the restricted meaning that the Court of Appeal in Reg. v. Cunningham had placed upon the adverb 'maliciously' in the Malicious Damage Act 1861 in cases where the prosecution did not rely upon an actual intention of the accused to cause the damage that was in fact done, called for a meticulous analysis by the jury of the thoughts that passed through the mind of the accused at or before the time he did the act that caused the damage, in order to see on which side of a narrow dividing line they fell. If it had crossed his mind that there was a risk that someone's property might be damaged but, because his mind was affected by rage or excitement or confused by drink, he did not appreciate the seriousness of the risk or trusted that good luck would prevent its happening, this state of mind would amount to malice in the restricted meaning placed upon that term by the Court of Appeal; whereas if, for any of these reasons, he did not even trouble to give his mind to the question whether there was any risk of damaging the property, this state of mind would not suffice to make him guilty of an offence under the Malicious Damage Act 1861.
"Neither state of mind seems to me to be less blameworthy than the other; but if the difference between the two constituted the distinction between what does and what does not in legal theory amount to a guilty state of mind for the purposes of a statutory offence of damage to property, it would not be a practicable distinction for use in a trial by jury. The only person who knows what the accused's mental processes were is the accused himself - and probably not even he can recall them accurately when the rage or excitement under which he acted has passed, or he has sobered up if he were under the influence of drink at the relevant time. If the accused gives evidence that because of his rage, excitement or drunkenness the risk of particular harmful consequences of his acts simply did not occur to him, a jury would find it heard to be satisfied beyond reasonable doubt that his true mental process was not that, but was the slightly different mental process required if one applies the restricted meaning of 'being reckless as to whether' something would happen, adopted by the Court of Appeal in Reg. v. Cunningham.
"My Lords, I can see no reason why Parliament when it decided to revise the law as to offences of damage to property should go out of its way to perpetuate fine and

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impracticable distinctions such as these, between one mental state and another. One would think that the sooner they

were got rid of, the better."

Lord Diplock then reviewed decisions which had been made under section 1(1) of the new Act in which the prosecution's case was based upon the accused's having been "reckless as to whether . . . property would be destroyed or damaged". Reg. v. Stephenson [1979] QB 695 was the last of such cases in which the Court of Appeal (Criminal Division) itself reviewed a number of cases, mainly in the field of civil law, which cases did not disclose a uniform judicial use of the terms. Lord Diplock concluded that the court had made the assumption that although Parliament in replacing the Act of 1861 by the Act of 1971 had discarded the word "maliciously" as descriptive of the mens rea of the offences of which the actus reus is damaging property, in favour of the more explicit phrase "intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed", it nevertheless intended the words to be interpreted in precisely the same sense as that in which the single adverb "maliciously" had been construed by Professor Kenny in the passage that received the subsequent approval of the Court of Appeal in the Cunningham case. His Lordship then continued, at p. 353:
"My Lords, I see no warrant for making any such assumption in an Act whose declared purpose is to revise the then existing law as to offences of damage to property, not to perpetuate it. 'Reckless' as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech - a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.
"If one is attaching labels, the latter state of mind is neither more nor less 'subjective' than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person.
"Nevertheless, to decide whether someone has been 'reckless' as to whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was

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so slight that the ordinary prudent individual upon due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as 'reckless' in its ordinary sense if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave.) So to this extent, even if one ascribes to 'reckless' only the restricted meaning, adopted by the Court of Appeal in Reg. v. Stephenson [1979] QB 695 and Reg. v. Briggs (Note) [1977] W.L.R. 605, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."His Lordship then considered what should be the proper direction to the jury where a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is alleged to have been "reckless" as to whether any such property would be destroyed or damaged. He concluded that the jury should be directed that such a person is reckless within the meaning of section 1(1) if:He does an act which in fact creates an obvious risk that property will be destroyed or damaged; andWhen he does this act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.In his dissenting speech with which Lord Wilberforce concurred, Lord Edmund-Davies said, at p. 357:
"In time, what was originally the common coinage of speech acquires a different value in the pocket of the lawyer than when in the layman's purse."
He concluded that the draftsman of the 1971 Act had in mind the Law Commission's definition of recklessness to be found in their working paper No. 31, Codification of the Criminal Law, General Principles, The Mental Element in Crime issued in June 1971 and in "the much respected decision of Reg. v. Cunningham". Thus in his view, unlike negligence, which has to be judged objectively, recklessness involves foresight of consequences, combined with an objective judgment of the reasonableness of the risk taken. Accordingly if a defendant says of a particular risk "It never crossed my mind" a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence.A few weeks after hearing the argument in Caldwell, your Lordships in Reg. v. Lawrence [1982] A.C. 510 had to consider the word "recklessly" in sections 1 and 2 of the Road Traffic Act 1972 as amended. Judgment in that appeal was in fact given on the same day as judgment in the Caldwell case. It was a unanimous decision of the House, the leading speech again being given by Lord Diplock. I need not trouble your Lordships with the facts of that case. Lord Diplock in referring to Caldwell said that the

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conclusion reached by the majority of your Lordships was that the adjective "reckless" when used in a criminal statute, i.e. the Criminal Damage Act 1971, had not acquired a special meaning as a term of legal art, but bore its popular or dictionary meaning of careless, regardless or heedless of the possible harmful consequences of one's acts. The same must be true of the adverbial derivative "recklessly" when used in relation to driving a motor vehicle. As to the mens rea of the offence, he said this, at p. 526:
"I turn now to the mens rea. My task is greatly simplified by what has already been said about the concept of recklessness in criminal law in Reg. v. Caldwell [1982] A.C. 341. Warning was there given against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being either 'subjective' or 'objective'. Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.
"In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things:
"First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and
Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it."Some two years later in Reg. v. Seymour [1983] 2 A.C. 493 your Lordships' House again considered the Caldwell decision, as followed in the Lawrence decision, in a case in which a defendant was convicted of manslaughter when driving a lorry. An appeal was made to the Court of Appeal upon the ground that the trial judge had misdirected the jury in that where manslaughter was charged, and the charge arose out of the reckless driving on the highway, the direction propounded in Lawrence which he applied was inadequate, and that in such circumstances the jury should be directed that the prosecution must prove that the defendant recognised that some risk was involved and had nevertheless proceeded to take the risk. The appeal was dismissed by the Court of Appeal and by your Lordships.

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Before returning to the submission made by Mr. Sedley, to which I have referred above, I think it is now convenient to go back in time to the decisions of the Court of Appeal in Reg. v. Mowatt [1968] 1 QB 421 , to which reference has already been made. The facts of that case were simple. On 30 September 1966 in the early hours of the morning the defendant and a companion stopped a third man in the street and asked him whether there was a pub anywhere nearby. The defendant's companion then snatched a £5 note from the third man's breast- pocket and ran off. The third man chased him without success and returned to the defendant, grasping him by the lapels and demanding to know where his companion had gone. The defendant then struck the third man, knocking him down. Two police officers saw the defendant sit astride the third man and strike him repeated blows in the face, pull him to his feet and strike him again, knocking him down and rendering him almost unconscious. The defendant admitted inflicting the first blow but claimed it was self-defence. He was tried on an indictment which included a count for wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Persons Act 1861. In summing up on this count the trial judge told the jury they were entitled to return a verdict of unlawful wounding under section 20 of the Act. However in his summing up, while explaining the meaning of the word 'unlawfully' so far as it was relevant to the defence of self-defence, he gave no direction as to the meaning of "maliciously".The importance of this case is that the Court of Appeal considered the case of Cunningham and although modifying or explaining an important feature of that decision, in no way queried its validity. The judgment of the Court of Appeal to which I have already made references was, as previously stated, given by Diplock L.J. It is of course one of Mr. Sedley's points, that although Mowatt was not referred to in Caldwell, it was most unlikely that its existence was overlooked, particularly by Lord Diplock. At p. 425 Diplock L.J. observed that "unlawfully and maliciously" was a fashionable phrase of parliamentary draftsmen in 1861. It ran as a theme, with minor variations, through the Malicious Damage Act 1861, and the Offences Against the Persons Act passed in that year. He then referred to the "very special" facts in Cunningham and observed:"No doubt upon these facts the jury should be instructed that they must be satisfied before convicting the accused that he was aware that physical harm to some human-being was a possible consequence of his unlawful act in wrenching off the gas meter. In the words of the court 'maliciously in a statutory crime postulates foresight of consequence' and upon this proposition we do not wish to cast any doubt". (Emphasis added).Subsequently he added, at p. 426:
"In the offence under section 20, and in the alternative verdict which may be given on a charge under section 18, for neither of which is any specific intent required, 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

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of causing some physical harm to some other person. That is what is meant by 'the particular kind of harm' in the citation from Professor Kenny. 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." (Emphasis added).Mr. Sedley submitted that in Caldwell's case your Lordships' House could have followed either of two possible paths to its conclusion as to the meaning of "recklessly" in the 1971 Act. These were:To hold that Cunningham (and Mowatt) were wrongly decided and to introduce a single test, wherever recklessness was an issue; orTo accept that Cunningham, (subject to the Mowatt "gloss" to which no reference was made), correctly states the law in relation to the Offences Against the Persons Act 1861, because the word "maliciously" in that statute was a term of legal art which imported into the concept of recklessness a special restricted meaning, thus distinguishing it from "reckless" or "recklessly" in modern "revising" statutes then before the House, where those words bore their then popular or dictionary meaning.I agree with Mr. Sedley that manifestly it was the latter course which the House followed. Therefore in order to establish an offence under section 20 the prosecution must prove either the defendant intended or that he actually foresaw that his act would cause harm.IV In order to establish an offence under section 20 is it sufficient to prove that the defendant intended or foresaw the risk of some physical harm or must he intend or foresee either wounding or grievous bodily harm ?It is convenient to set out once again the relevant part of the judgment of Diplock L.J., in Reg. v. Mowatt [1968] 1 Q.B. 421, 426. Having considered Professor Kenny's statement, which I have quoted above, he then said:"In the offence under section 20 ... for . . . which no specific intent is required, the word 'maliciously' does import ... an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by the 'particular kind of harm' in the citation from Professor Kenny. 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." (Emphasis added).

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Mr. Sedley submits that this statement of the law is wrong. He contends that properly construed, the section requires foresight of a wounding or grievous bodily harm. He drew your Lordships' attention to criticisms of the Mowatt decision made by Professor Glanville-Williams and by Professor J. C. Smith in their text books and in articles or commentaries. They argue that a person should not be criminally liable for consequences of his conduct unless he foresaw a consequence failing into the same legal category as that set out in the indictment.Such a general principle runs contrary to the decision in Robert's case 56 Cr.App.R. 95 which I have already stated to be, in my opinion, correct. The contention is apparently based on the proposition that as the actus reus of a section 20 offence is the wounding or the infliction of grievous bodily harm, the mens rea must consist of foreseeing such wounding or grievous bodily harm. But there is no such hard and fast principle. To take but two examples, the actus reus of murder is the killing of the victim, but foresight of grievous bodily harm is sufficient and indeed, such bodily harm, need not be such as to be dangerous to life. Again, in the case of manslaughter, death is frequently the unforeseen consequence of the violence used.The argument that as section 20 and section 47 have both the same penalty, this somehow supports the proposition that the foreseen consequences must coincide with the harm actually done, overlooks the oft repeated statement that this is the irrational result of this piece-meal legislation. The Act "is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form." (Professor Smith in his commentary on Parmenter [1991] C.L.R. p. 43).If section 20 was to be limited to cases where the accused does not desire but does foresee wounding or grievous bodily harm, it would have a very limited scope. The mens rea in a section 20 crime is comprised in the word "maliciously". As was pointed out by Lord Lane C.J., giving the judgment of the Court of Appeal in Reg. v. Sullivan on 27 October 1980 (unreported save in [1981] C.L.R. 46) the "particular kind of harm" in the citation from Professor Kenny was directed to "harm to the person" as opposed to "harm to property". Thus it was not concerned with the degree of the harm foreseen. It is accordingly in my judgment wrong to look upon the decision in Mowatt [1968] 1 QB 421 as being in any way inconsistent with the decision in Cunningham [1957] 2 Q.B. 396.My Lords,I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, 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.In the result I would dismiss the appeal in Savage's case but allow the appeal in Parmenter's case, but only to the extent of substituting, in accordance with the provisions of section 3(2) of the Criminal Appeal Act 1968, verdicts of guilty of assault

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occasioning actual bodily harm contrary to section 47 of the Act for the four section 20 offences, of which he was convicted.

LORD JAUNCEY OF TULLICHETTLE

My Lords,I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend, Lord Ackner. I agree with it, and for the reasons which he gives I, too, would dismiss the appeal in Savage's case and allow that in Parmenter's case to the extent which he proposes.

LORD LOWRY

My Lords,I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend, Lord Ackner. I agree with it, and for the reasons which he gives I, too, would dismiss the appeal in Savage's case and allow that in Parmenter's case to the extent which he proposes.

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