In R v Parmenter The Times 30 July 1990 it was said, "Their Lordships believed that the Authorities could no longer live together and that the reason lay 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 intent (R v Cunningham [1957] 2 Q B 396) or consequences (R v Mowatt [1967 Crim] L R 591.

This situation arose because different divisions of The Court of Appeal gave conflicting decisions. See R v Spratt [1990] 1 WLR 1073 and R v Savage [1991] 2 WLR 418. The Court of Appeal in Parmenter preferred Spratt. In a judgment delivered on 7 November 1991 the Lords said the Court of Appeal were wrong to follow Spratt. Their Lordships said the decision of R v Roberts [1972] Crim L R 27 was correct.

The Cases until 1990

In R v Pembliton (1874) L.R. 2 C.C.R. 119 The prisoner was indicted that he "Unlawfully and Maliciously did commit damage" This particular statute only dealt with damaging, injuring, or spoiling real or personal property. The prisoner was drinking with others in a public house kept by Kirkham. At 2300 hours the whole party were turned out of the pub for being disorderly, and they then began to fight in the street, near Kirkham's window, where a crowd of about fifty persons had gathered. Pembliton separated from the crowd, removed to the other side of the street and picked up a stone. He threw the stone at the person he had been fighting with. The stone flew over his head and broke the pub window causing damage

The jury found him quilty the case was remitted for the opinion of the Court for Crown Cases Reserved who quashed the conviction because the jury found the prisoner threw the stone which broke the window, but that he threw it at the people he had been fighting with, intending to strike one or more of them with it but not intending to break the window. The Court is saying there must be intention or recklessness to do the particular kind of harm that actually was done.

In R v Bradshaw (1878) 14 Cox C. C. 83 one footballer was alleged to have caused the death of another by a dangerous charge on the field. Bramwell, LJ, told the jury," No rules or practice of any game whatever can make lawful that which is unlawful by the laws of the land. If the prisoner intended to cause serious injury to the deceased or if he knew that, in charging as he did, he might produce serious injury and was indifferent and reckless as to to whether he would produce serious injury or not, then the act would be unlawful".

In a similar case R v Moore The Times 16 February 1898 Manslaughter at a football match by charging from behind, Hawkins J would not allow the Rules of the game to be put in evidence. He said the only question for the jury was whether the prisoner used illegal violence.

In Ackroyd v Barrett (1894) 11 T.L.R. 115, The defendant had ridden his bicycle much too fast down a steep, winding, narrow hill when factory workers were going home. He had caught a pedestrian on the leg. The Justices found that he "was committing an act which he must have known might produce serious injury, and was using no caution, but was indifferent and careless as to the consequences" The Divisional Court held that the conviction for assault was wrong. This suggested negligence was not enough, see Glanville Williams, Textbook on Criminal Law, 2nd Edition , page 171.

In R v Latimer (1886) L.R. 17 Q.B.D. 359. The prisoner was indicted for "Unlawfully and Maliciously wounding. He had quarrelled in a public house with one Chapple who had knocked him down. He went into the yard , returned five minutes later and passed hastily through the room in which Chapple was sitting. He aimed a blow at Chapple with his belt: it bounced off and cut open the face of one Ellen Rolston wounding her severely.

He was convicted. For the prisoner R v Pembliton was cited. He did not intend to strike Ellen Rolston, therefore no mens rea, not malicious. The conviction was affirmed. All the judges distinguished Pembliton. Lord Coleridge said it was common knowledge that a man who has an unlawful and malicious intent against another, if in attempting to carry it out, injures a third party, is quilty of what the law deems malice against the person injured. He cited R v Hunt 1 Moo. C.C.93. as express Authority for the point In Hunt a man had stabbed the wrong man, he clearly had malice ,but no intention of injuring the man he stabbed. Pembliton was clearly distinguished on the grounds that in that case the Statute dealt with injury to property and the jury expressly negatived any intention to injure property.

In R v Beech (1912) 7 Cr App. R. 197. B broke into the house of a women with whom he had been friendly and attempted to force open her bedroom door by beating and kicking at it. In fear of personal attack just before the door gave way she jumped 11 feet to the ground below and sustained serious injury. B was charged with inflicting grievous bodily harm. She denied having previously had intercourse with him. The trial judge had said " Was the act of jumping the natural consequences of the prisoner: and was the grievous bodily harm the result of the conduct of the prisoner?" The case confirmed the earlier decision of Halliday (1889) 61 L.T. 701.

In R v Cunningham The Court of Criminal Appeal held that for the purposes of a statutory offence "Malice" does not mean wickedness nor ill will towards the injured person. It involves an actual intention to do the particular kind of harm which, in fact, was done, or recklessness as to whether such harm might occur or not.

The defendant had wrenched a gas metre from a wall and stolen its contents. As a result of his action gas escaped into an adjoining house in which a Mrs Wade was living. She was partly asphyxiated, and the defendant was charged with larceny (Theft) and unlawfully and maliciously causing to be taken by Sarah Wade a certain noxious thing, viz, coal gas. s 23 Offences Against The Person Act 1861.

In deciding the case the Judges drew on the law as expounded by Kenny in his Outlines of Criminal Law published in 1902. They also found support in Pembliton's Case.

In R v Mowatt [1967] Crim L R 591 the defendant was indicted under s 18 but convicted under s 20 of Unlawful wounding. A man was returning home in the early hours of the morning when he was stopped in the street by two men, one of whom was Mowatt. They asked him if there was a club anywhere about, and then one of them, not Mowatt, snatched a £5 note from his breast pocket and ran off. He gave chase without success. He returned and grabbing Mowatt by the lapels demanded to know the whereabouts of his mate. Mowatt hit him and knocked him to the ground. That was the first assault.

Two off duty police officers then found Mowatt sitting astride the man hitting him and making him virtually unconscious. Mowatt was arrested. When they arrived at the police station Mowatt was found to have a £5 note in concealed his hand.

As regards the blows seen by the police, the only issues before the jury was whether that happened at all, and if so, whether they were inflicted with intent to do grievous bodily harm. If the jury accepted that it did happen then clearly any ordinary man would realise that some physical harm would be sustained even though he might not have any specific intent. In dismissing the Appeal the Court said there were many cases where it was unnecessary to refer to or define "Maliciously".

Perhaps Mowatt was the best approach, since it is juries that must make the decisions on facts. For a discussion on Mowatt see Smith and Hogan, Criminal Law 6th Edition page 401. Mowatt was followed in R v Sullivan [1981] Crim L R 46

In R v Lewis [1970] Crim L R 647. L was convicted of Grievous bodily harm to his wife. she, having suffered considerable violence, locked him out of the flat. He said he would kill her, and, hearing sounds of broken glass from one of the rooms in the flat she jumped out of the window and broke both legs. Held, dismissing the appeal, that it made no difference that the parties were not in the same room.

In R v Roberts [1972] Crim L R 27 R tried to remove the coat of a girl in a moving car. The allegation was he tried to put his hand up her skirt and tried to pull her tights down. When he tried to remove clothing she jumped out of the moving car. He was convicted under s 47. He appealed on the ground that the jury were not directed to consider whether he foresaw that she would jump out and suffer injury. The court said it was wrong to submit to them that the jury must be sure that a defendant, who is charged either with inflicting grievous bodily harm or assault occasioning actual bodily harm, must foresee the actions of the victim which result in the grievous bodily harm or the actual bodily harm. the test is: was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonable have been foreseen as the consequence of what he was saying or doing?7

In R v Venna [1975] 3 ALL ER 788 the Appellant and others were causing a disturbance in a public street. The Police were sent for and in a scuffle which ensued as the police sought to arrest him, the appellant kicked out with his feet. In so doing he struck the hand of a police officer and caused a fracture which resulted in him being convicted of s 47 Actual Bodily Harm.

The Judge had told the jury that a person can commit an assault by hitting another deliberately or recklessly. As to Recklessly he had said "If he lashes out with his feet, knowing that there are officers about him and knowing that by lashing out he will probably or likely kick somebody, or hurt his hand by banging his heel down on it, then he is equally guilty of the offence."

In his Judgement James LJ, said "We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable..."

The next case to consider is R v Caldwell [1981] Crim LR 392 Caldwell is not an assault case, however it clearly swept away the pre Cunningham law in all but assault cases. The Lords Held that" Reckless" in s 1 of The Criminal Damage Act was that which it bore in ordinary speech, including 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 through to whether or not there was any such risk in circumstances where, if any thought was given to the matter it would be obvious that there was. From now on the question often posed was; is it Caldwell recklessness? or is it Cunningham recklessness?

In W (a Minor) v Dolbey [1983] Crim L. R.681 a 15 year old boy was shooting at bottles at a farm. He met R, standing in the doorway of a barn. The defendant pointed the gun at R who told him to put it down. The defendant said "There is nothing in the gun; I have no pellets". He fired the gun. There was a pellet in the gun which wounded R. The defendant was charged under s 20. The justices found the defendant believed the gun was unloaded: That he had not opened the gun before firing it at R: That he had ignored the risk that it might be loaded: That he had been Reckless: They convicted him.

The Appeal was allowed since the Court felt that the Cunningham test still stood.

In DPP v Khan (A Minor) [1990] 1 ALL E R 331 a 15 year old boy was conducting chemistry experiments at school. He attended the toilet block to wash acid from his hand: however he took with him a boiling tube of concentrated sulphuric acid.

He poured some of the acid onto toilet paper to test the reaction. Hearing footsteps in the corridor he panicked and poured the rest of the acid into a hot air hand/face drier. he then returned to his classroom discarding the empty container on route. He intended to return later and deal with the drier. Another pupil went to the toilet, used the drier and as a result was permanently scared on the face.

K was originally charged under s 20, however this was reduced to s 47 of which he was also acquitted. The Magistrates' had explained there findings in this way: "The respondent was in a state of panic on hearing footsteps approaching the toilet and...did the first thing that came into his mind in order to conceal the liquid. His motive was only to conceal the acid and his omission to warn others did not constitute an assault under s 47"

The Divisional Court allowed the prosecutor's appeal and the case was remitted to the Magistrates' with a direction to convict, and proceed to sentence. The Court said the defendant knew full well that he had created a dangerous situation and the inescapable inference appeared to be that he had decided to take the risk of someone else using the machine before he could get back and render it harmless, or gave no thought to that risk.

In R v Rainbird [1989] Crim L R 505 R acting as school caretaker fired an airgun at dustbins where trespassing boys were playing, hitting one of the boys with a pellet. He was charged with malicious wounding and in his defence said that he foresaw no risk to injury. In directing the jury the Judge said R should have foreseen physical harm: and summed up the prosecution case as "an act committed by R which an ordinary person would realise was likely to have that consequence." R was convicted.

Held, allowing the Appeal and quashing the conviction, the judge's reference to an objective test of foreseeability constituted a misdirection. The Court of Appeal said the Judge had probably been misled by Caldwell although the House of Lords in that case did not overrule Cunningham

In R v Savage [1991] 2 WLR 418 the Defendant Susan Savage threw a beer glass over the complainant, and whilst doing so she let go of the glass with the result that the complainant's wrist was cut by the glass or a splinter from it. The defendant intended to do act A,amounting to an assault, in the course of it unintentionally did act B, which caused the actual bodily harm. She was made subject of a community service order having been convicted under s 20.

The Court of Appeal quashed her conviction on the ground that the jury had not been directed to find that the defendant foresaw some physical harm would follow and substituted a conviction of actual bodily harm under s 47.

She appealed. It was held by the Lords that an offence under s 47 1861 Act is established by proof that the defendant intended to commit the assault and that actual bodily harm was a consequence of the assault. It is unnecessary to prove that the defendant intended to cause actual bodily harm or was reckless as to whether such harm would be caused. R v Wilson [1984] AC 247 was correct, a verdict of quilty of an offence under s 47 is a permissible alternative verdict on an offence under s 20 of unlawful wounding.

In R v Spratt [1990] 1 WLR 1073 the defendant had fired an air pistol from his flat and two of the pellets had struck a girl aged seven playing outside. At the trial he had pleaded quilty on the basis that he had been reckless in that he failed to give any thought to the possibility of a risk. At his appeal the Court of Appeal said he was not guilty. They found themselves bound by Venna and said the test for recklessness was as laid down in Cunningham. The Lords have now said Spratt was wrongly decided.

In R v Parmenter [1991] 2 WLR 408The defendant admitted injuring his baby son and pleaded guilty to cruelty. He was also charged with 4 offences under s 20 1861 Act. The Judge directed the jury that it was" unnecessary that the accused should have foreseen that his unlawful act might cause physical harm" of the type described in the section: it was "enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result." He was convicted.

The Court Of Appeal allowed his appeal since they said a direction on intent under s 20 should indicate to the jury that it was necessary that the accused actually foresaw that some physical harm to some other person would result from his act, and that, accordingly, a direction that it was sufficient that the accused ought to have or should have foreseen the physical harm was a misdirection and the convictions would be quashed. The Court of Appeal would not substitute convictions under s 47 since they considered the same subjective intent was required as for s 20.

The Lords allowed the Crown's Appeal holding that the argument that a person should not be criminally liable for his conduct unless he foresaw a consequence falling into the same legal category as in that indictment ran contrary to the decision in Roberts, Supra, which was correct. They substituted convictions under s 47

In Parmenter their Lordships expressed the view that only the House of Lords could put the subject on an even keel. It is the Judges of the Crown Courts, those work horses of the Legal System who need to make sense of this in practice.

It was as expressed by Mustill LJ in Parmenter,"Scarcely creditable that 129 years after the enactment of the Offences Against The Person Act 1861 three Appeals should come before this Court within one week which reveal the law to be so impenetrable"

It is submitted in practice that they can do no better that follow the advice of the Division of The Court of Appeal who sat in R v Nash The Times 11 November 1991. In The majority of trials of assault occasioning actual bodily harm S 47 (and now for the same reason s 20) it was quite unnecessary to go into the issue of recklessness at all. It would usually be quite sufficient to indicate to the jury that they had to be satisfied that the defendant intended to cause some harm to the victim. It was largely a question of whether the jury believed the prosecution or the defence version.

Rob Jerrard

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