Regina v Savage

The House considered the mental element required for offences under sections 20 and 47 of the Offences Against the Person Act 1861. It held that for an offence under section 20 ('unlawfully and maliciously' wounding or inflicting grievous bodily harm) the prosecution must prove that the defendant actually foresaw that some physical harm to some person was a possible consequence of his or her act (the subjective foresight test as explained in Reg. v. Mowatt and Reg. v. Cunningham), but it is unnecessary that the defendant foresaw harm of the particular gravity that occurred. By contrast a conviction under section 47 (assault occasioning actual bodily harm) may be returned upon proof of an assault and objective causation that the assault occasioned actual bodily harm; the prosecution need not prove an additional subjective intention or recklessness in respect of the bodily harm once the assault is established. The court also confirmed that an indictment for wounding under section 20 may, by implication under section 6(3) Criminal Law Act 1967, admit an alternative verdict of assault occasioning actual bodily harm.

This appeal bundle raised competing questions about the mens rea required for two offences under the Offences Against the Person Act 1861: section 20 (unlawfully and maliciously wounding or inflicting grievous bodily harm) and section 47 (assault occasioning actual bodily harm). Two appellants' matters were heard together: the appeal of Susan Savage against a substituted conviction and the appeal of Philip Mark Parmenter against convictions under section 20.

Background and procedural posture:

• Regina v Savage: Mrs Savage was convicted of unlawful wounding (section 20) after a jury found that, in the course of throwing the contents of a pint glass at the victim, the glass or a piece of it cut the victim. The recorder's direction as to 'maliciously' was criticised by the Court of Appeal, which quashed the section 20 verdict and substituted a verdict of guilty of assault occasioning actual bodily harm (section 47). Mrs Savage appealed to the House of Lords.
• Regina v Parmenter: Mr Parmenter was convicted on several counts under section 20 for injuries inflicted on his infant son. The Court of Appeal quashed the section 20 convictions because of defective directions about foresight and declined to substitute section 47 verdicts; leave was given to appeal to the House of Lords on certified questions about the required mental element.

Issues framed by the House (certified points included):

• whether a section 20 indictment permits an alternative verdict of assault occasioning actual bodily harm (section 47) under section 6(3) Criminal Law Act 1967;
• whether a conviction under section 47 requires proof, beyond the assault, of a subjective intention or recklessness as to actual bodily harm, or whether proof that the assault occasioned actual bodily harm (an objective causation question) suffices;

Court's reasoning and outcome in brief:

• The House affirmed the principle in Reg. v. Wilson that an indictment for wounding under section 20 can imply allegations that permit a section 47 alternative verdict under section 6(3) Criminal Law Act 1967.
• Relying on Reg. v. Roberts and the authorities about causation, the House held that section 47 requires proof of the assault (with its mens rea of intention or subjective recklessness as to causing apprehension of immediate unlawful violence) and objective proof that the assault occasioned actual bodily harm; there is no separate requirement that the defendant subjectively intended or was reckless as to causing the actual bodily harm once an assault is established.
• Drawing on Reg. v. Cunningham and Reg. v. Mowatt and distinguishing the approach in cases on modern 'reckless' statutes (notably Reg. v. Caldwell), the House held that for section 20 the mens rea element embodied in the word 'maliciously' requires actual foresight by the defendant that his act might cause some physical harm to some person (subjective foresight). It is not necessary that the defendant foresaw the particular severity of the harm that occurred.

This House dismissed the appeal in Regina v Savage and allowed the Parmenter appeal in part. The court affirmed that a section 20 indictment may permit a section 47 alternative verdict under section 6(3) Criminal Law Act 1967; held that for section 47 proof of assault and objective causation that the assault occasioned actual bodily harm suffices (no separate subjective foresight of the harm element is required); and held that for section 20 the mens rea requires actual subjective foresight that some physical harm might result, though not necessarily of the degree or type that occurred.

Appeals from the Court of Appeal (Criminal Division). The Court of Appeal (28 November 1990) had quashed a section 20 verdict in Savage and substituted a section 47 verdict; leave was given and the case was certified to the House of Lords. Parmenter came from a Court of Appeal decision (reported at [1991] 2 W.L.R. 408) which quashed four section 20 convictions for misdirection; leave to appeal to the House of Lords was granted and points of law were certified.