R v Parmenter (Philip) (Director of Public Prosecutions v Parmenter)

For an offence under section 20 of the Offences Against the Person Act 1861, maliciously requires an intention to cause harm or actual foresight that the act may cause some physical harm. It does not require foresight of a wound or grievous bodily harm.

For section 47, the required mens rea is that of the underlying assault. The words concerning actual bodily harm raise an objective question of causation and do not require an intention or recklessness as to that harm. A section 47 verdict may ordinarily be returned as an alternative to a section 20 wounding charge under section 6(3) of the Criminal Law Act 1967.

The respondent was convicted at the Crown Court of four offences under section 20 of the Offences Against the Person Act 1861 after his baby son sustained fractures while being handled by him. His case was that he did not realise that his handling could cause injury.

The Court of Appeal quashed the convictions because the jury had been directed in terms of what the respondent should have foreseen. It declined to substitute section 47 convictions, preferring its earlier approach in R v Spratt [1990] 1 WLR 1073. The Director of Public Prosecutions appealed from that decision, reported at [1991] 2 WLR 408.

The House considered the mental elements of sections 20 and 47, and whether convictions for assault occasioning actual bodily harm should be substituted.

Disposition

1. Unanimously, the House allowed the Director of Public Prosecutions’ appeal to a limited extent. Lord Ackner gave the leading speech, with which Lords Keith, Brandon, Jauncey and Lowry agreed. The four quashed section 20 convictions were replaced under section 3(2) of the Criminal Appeal Act 1968 by convictions for assault occasioning actual bodily harm contrary to section 47.
2. Per Lord Ackner, a charge of unlawful wounding under section 20 will ordinarily impliedly include an allegation of assault occasioning actual bodily harm. Section 6(3) of the Criminal Law Act 1967 therefore permits a section 47 alternative verdict. The House reaffirmed the construction adopted in R v Wilson (Clarence) [1984] 1 AC 242.
3. Per Lord Ackner, section 47 requires proof of an assault with its ordinary mental element: an intention to cause apprehension of immediate unlawful violence, or recklessness as to causing that apprehension. Once that assault is proved, the question whether it occasioned actual bodily harm is one of objective causation. The prosecution need not prove that the accused intended, or was reckless as to, actual bodily harm. R v Roberts (1972) 56 Cr App R 95 was correct; the Court of Appeal had been wrong to prefer R v Spratt on this issue.
4. Per Lord Ackner, section 20 retains the subjective requirement derived from R v Cunningham [1957] 2 QB 396. The prosecution must prove that the accused intended harm or actually foresaw that the act might cause harm. The broader meaning of recklessness adopted for the later Criminal Damage Act 1971 in R v Caldwell [1982] AC 341 did not govern the technical word maliciously in the 1861 Act.
5. Per Lord Ackner, R v Mowatt [1968] 1 QB 421 correctly qualified the required foresight. It is sufficient that the accused intended or foresaw some physical harm to a person; foresight of wounding or grievous bodily harm is unnecessary.

• House of Lords: the Director of Public Prosecutions’ appeal was allowed to the extent of substituting four convictions under section 47 of the Offences Against the Person Act 1861.
• Court of Appeal (Criminal Division): quashed the four section 20 convictions because the direction permitted an objective assessment of foresight, and declined to substitute section 47 convictions: [1991] 2 WLR 408.
• Crown Court: acquitted the respondent of three section 18 offences and convicted him of four section 20 offences.