R v Savage [1991] UKHL 15 (07 November 1991)

Regina v. Savage (Appellant) (On Appeal from the Court of

Appeal (Criminal Division))

JUDGMENT

Die Jovis 7° Novembris 1991

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Savage, That the Committee
had heard Counsel as well on Tuesday the 2nd as on Wednesday
the 3rd and Thursday the 4th days of July last, upon the
Petition and Appeal of Susan Savage of 33 Bamburgh Parade,
Spennymoor, County Durham, praying that the matter of the
Order set forth in the Schedule thereto, namely an Order of
Her Majesty’s Court of Appeal (Criminal Division) of the 28th
day of November 1990, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order might
be reversed, varied or altered or that the Petitioner might
have such other relief in the premises as to Her Majesty the
Queen in Her Court of Parliament might seem meet; as upon the
case of the Director of Public Prosecutions (on behalf of Her
Majesty) lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:

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

SAVAGE
(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

DIRECTOR OF PUBLIC PROSECUTIONS
(APPELLANT)

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.

– 2 –

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.

– 3 –

“(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:

1. 1. 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’.
  2. 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

– 4 –

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

– 5 –

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:

– 6 –

‘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.

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

– 7 –

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

– 8 –

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

– 9 –

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.

– 10 –

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:

– 11 –

“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

– 12 –

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 to¹ 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 to¹ 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.

– 13 –

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”

– 14 –

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.

– 15 –

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

– 16 –

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

– 17 –

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

– 18 –

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

– 19 –

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

– 20 –

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

– 21 –

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:

1. 1. He does an act which in fact creates an obvious risk that
    property will be destroyed or damaged; and
  2. When 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:

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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:

1. 1. To hold that Cunningham (and Mowatt) were wrongly decided
    and to introduce a single test, wherever recklessness was an
    issue; or
  2. To 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,

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