ML, R. v

For unlawful wounding under section 20 of the Offences against the Person Act 1861, the mental element is subjective. The prosecution must prove that the accused intended physical harm or foresaw that the unlawful act might cause some physical harm, even if minor.

At a no-case submission, the court must assess whether a properly directed jury could safely make that finding on the evidence as a whole. Mere possession of a knife while fleeing, without evidence of an intentional movement of the bag containing it towards another person, may be insufficient to establish subjective foresight of injury.

The respondent was tried at Croydon Crown Court on charges including wounding with intent under section 18 and unlawful wounding under section 20 of the Offences against the Person Act 1861. During a police pursuit, he carried a rucksack containing a knife in a sock. An officer was cut when tackling him.

At the close of the prosecution case, the Recorder ruled that there was no case to answer on the section 18 and section 20 counts. The prosecution did not challenge the ruling on section 18. It sought leave, under section 58 of the Criminal Justice Act 2003, to appeal the ruling on section 20. The central issue was whether the evidence could enable a jury to find that the respondent subjectively foresaw that some physical harm might result.

1. The prosecution application failed and leave to appeal was refused. The court held that the Recorder was entitled to conclude that no properly directed jury could be sure that the respondent had the mens rea for unlawful wounding under section 20 of the Offences against the Person Act 1861.
2. The statutory word maliciously imports a subjective mental element. Following R v Savage and DPP v Parmenter [1992] 1 AC 699, the prosecution had to prove either an intention to cause physical harm or foresight that the unlawful act might cause some physical harm, even if minor.
3. The correct inquiry covered both the respondent's decision to run and his later movement when confronted by the officer. It was not, however, enough that he had run from the police while carrying a knife. The knife was inside a sock and the sock was within the rucksack. There was no credible evidence that he pushed or swung the rucksack at the officer. On those facts, a jury could not safely infer that he foresaw that the knife might injure someone.
4. The court agreed with the Recorder's factual assessment, while observing that the no-case ruling was a matter of judgment rather than discretion. The section 18 count was not before the court. The remaining charge of possessing a bladed or pointed article was unaffected; any injury caused could be relevant to sentence if there were a conviction.
5. The court also observed that, had the prosecution advanced an evidential challenge, Schedule 4 to the Criminal Justice Act 2003 would have precluded it in relation to section 20, which was not a listed offence.

• Court of Appeal (Criminal Division): The Crown's application under section 58 of the Criminal Justice Act 2003 for leave to appeal the section 20 no-case ruling was refused.
• Croydon Crown Court: At the close of the prosecution case, the Recorder ruled that there was no case to answer on the section 18 and section 20 counts.