CRIMINAL LAW

LECTURE NOTES – NON FATAL OFFENCES

AGAINST THE PERSON

INTRODUCTION

It goes without saying that only human beings can be the victim of non-fatal offences
against the person. Note that, as with Murder/ Manslaughter, a foetus or a child in the
process of being born could not be the victim of an assault or any other offence against
the Person.

The following are the existing categories of non- fatal offences against the person:
1. Common Law Assault And Battery
2. Assault Occasioning Actual Bodily Harm
3. Maliciously Wounding or Maliciously Inflicting Grievous Bodily Harm
4. Maliciously Wounding or Causing Grievous Bodily Harm with Intent

A. COMMON LAW ASSAULT AND BATTERY

It is instructive to note that assaults exist at both common law and statute.

In law, assault and battery theoretically mean different things. In Fagan v MPC [1969] 1
QB 439, the court said that an assault is any act which is the intentional or reckless
application of unlawful force to the body of another person.

However, there has been a modern trend to use the term 'assault' in a broad sense to
include both assault and battery. As James J stated in Fagan v MPC:

'Although "assault" is an independent crime and is to be treated as such, for practical

purposes today "assault" is generally synonymous with the term "battery", and is a term
used to mean the actual intended use of unlawful force to another person without his
consent.'

Both of these offences were originally common law offences, triable on indictment.

ASSAULT AT STATUTE

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Sections 34- 43 of the Offences Against the Person Act (OAPA) provide some of the
categories of assaults which exist in our jurisdiction. They range from assault of a
clergyman in the performance of his duty (S. 34), assault of a magistrate (S.35), assault in
the commission of a felony or on a constable (S.36) to aggravated assaults on women and
children (s.40).

Section 39 of the OAPA provides that “where any person shall unlawfully assault or
beat any other person, two Justices, upon complaint by or on behalf of the party
aggrieved, may hear and determine such offence, and the offender shall, upon summary
conviction, be liable to imprisonment with or without hard labour, for a term not
exceeding two months, or else shall forfeit and pay such fine not exceeding, together with
costs (if ordered) the sum of one thousand dollars; and if such fine as shall be so
awarded, together with the costs, if ordered, shall not be paid either immediately after
conviction, or within such period as shall at the time of the conviction be appointed, the
offender may be committed to imprisonment with or without hard labour, for a term not
exceeding two months unless such fine and costs be sooner paid.”

Note that Section 41 0f the OAPA gives the Justices the discretion to dismiss the charge
made pursuant to section 39 and 40 of the OAPA against the Defendant where they
“deem the offence not to be proved, or shall find the assault or battery to have been
justified, or so trifling as not to merit any punishment”.

i) ACTUS REUS OF ASSAULT

The actus reus of assault is any act which causes the victim to apprehend an immediate
infliction of violence, eg raising a fist or pointing a gun.

APPREHENSION OF VIOLENCE

There is no need for any physical contact between the defendant and the victim. The
emphasis is on what the victim thought was about to happen. So even if the defendant
meant his threat as a joke, an assault is nevertheless committed if the victim is
sufficiently frightened. See:

Logdon v DPP [1976] Crim LR 121

The defendant, as a joke, pointed a gun at the victim who was terrified until she was told
that it was in fact a replica. The court held that the victim had apprehended immediate
physical violence, and the defendant had been at least reckless as to whether this would
occur.

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IMMEDIACY

The requirement of immediacy in the crime of assault is generally understood to mean

that the victim must perceive the threat as one which can be carried out "there and then"
by the defendant. The courts have on occasion however, given a somewhat liberal
interpretation to the concept of immediacy in assault. Compare:

Smith v Superintendent of Woking Police Station [1983] Crim LR 323

The defendant had terrified a woman occupying a ground floor flat by staring in through
the windows at her. The Divisional Court was satisfied that even though the defendant
was outside the building there was evidence to suggest that the victim was terrified by the
prospect of some immediate violence. It was not necessary for the prosecution to
establish precisely what the victim feared would happen; a general apprehension of
violence was sufficient.

ASSAULT BY WAY OF OMMISSION

The general assumption in law is that an act of some kind is a necessary ingredient of an
assault. The case of Fagan v. MPC has confirmed this point. In this case the Defendant
was told by police constable to park his car at a particular spot. The Defendant drove his
car on the policeman’s foot in the execution of his duty. Lord Parker C.J. made the
following statement in delivering the Judgment of the House:

“To constitute the offence of assault some intentional act must have been performed:
mere omission to act cannot amount to an assault.”

Notwithstanding the foregoing statement, this position remains questionable, particular in

light of the further discussions undertaken by the Judges in Fagan. See Lord’s Bridge’s
dissenting opinion in Fagan.

See the case of R v Arobieke [1988] Crim. LR 314 for further information on the actus
reus for assault.

CAN MERE WORDS CONSTITUTE AN ASSAULT?

The case of R v Meade and Belt (1823) 1 Lew CC 184, where Holyroyd J stated that
"no words or singing are equivalent to an assault", is often cited as authority for the
proposition that words alone, unaccompanied by physical gestures, cannot amount to an
assault.

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However, the House of Lords recently stated that an assault can be committed by words
alone in R v Ireland [1997], and the Court of Appeal in R v Constanza [1997] (below). 
Note also the possibility of public order offences and the offence of making threats to
kill.

What is clear is that words will not constitute an assault if they are phrased in such a way
that negatives any threat that the defendant is making. See:

Tuberville v Savage (1669) 2 Keb 545

The defendant placed his hand on his sword hilt and told the victim, "If it were not
assize-time, I would not take such language from you." This was held not to be an assault.
The words accompanying the action (of placing the hand on the sword) clearly
demonstrated that because the assize judge was in town, the defendant was not going to
use his sword. There could thus be no apprehension of immediate force.

ii) MENS REA OF ASSAULT

The defendant must intentionally or recklessly cause his victim to apprehend the
infliction of immediate force (R v Venna [1976] QB 421). In R v Spratt [1990] 1 WLR
1073, the Court of Appeal held that the subjective Cunningham test of recklessness
applies here, in that the defendant had to be aware of the risk of causing another person to
apprehend harm.

iii) ACTUS REUS OF BATTERY

A battery is the infliction of unlawful force by one person upon another. The least
touching of another will suffice: Cole v Turner (1705) 6 Mod 149.

HOSTILITY

In Wilson v Pringle [1986] 2 All ER 440, the Court of Appeal (Civil Division) held that
for a battery the "touching must be proved to be a hostile touching".

This position seems to have been accepted by the House of Lords in R v Brown [1993] 2
All ER 75 (if an act was unlawful it was hostile). Lord Chancey said in R v. Brown that
“if the appellants’ activities in relation to the receivers [of the painful acts] were
unlawful they were also hostile and a necessary ingredient of assault was present”.

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Smith and Hogan, however criticizes the House of Lord’s position in respect of the
inclusion of hostility as a necessary ingredient. The learned authors, in disagreeing with
Simester and Sullivan, preferred the following argument:

“Hostility is unnecessary and is ambiguous; it could cause undesirable complications in

an offence which, because of the volume and summary nature of prosecutions, needs to
be kept simple.”

However, certain forms of contact are regarded as an unavoidable and generally accepted
consequence of social intercourse and therefore not actionable: casual jostling in a busy
street or shop; touching someone to engage his attention; a congratulatory slap on the
back; all are treated as acceptable if kept within reasonable bounds (Cole v Turner;
Tuberville v Savage; Collins v Wilcock [1984] 3 All ER 374).

BATTERY BY WAY OF OMMISSION

It is possible to commit a Battery by way of omission. Applying the general principles in

R v. Miller [1983] AC 161, the argument could be made that by omitting to act D created
a dangerous situation which resulted in a battery to the victim. The recent case of DPP v.
Sanata-Bermudez [2004] Crim. L.R. 471, [2003] EWHC 2908 is instructive on this
point. In that case the D, an intravenous drug user, assured a female officer, prior to her
searching him, that he had no sharp objects. On the faith of his assertions the officer
shoved her hand into his pocket and was injured by syringe in his pocket. Applying the
Miller principle, the Court found the Defendant liable. The court said that by having the
needles in his pocket and assuring the officer about the contents of his pocket the
Defendant had created a situation of danger.

Does there have to be direct contact between the Victim and the Defendant?

Note that the actus reus is complete even if there is no direct contact by the Defendant to
the victim.

In DPP v. K [1990] 1 ALL ER 331, the Defendant was found guilty in circumstances
here he poured acid into a drier on a bathroom thereby causing the victim to injured as he
attempted to use the drier.

Additionally, the case of Murtgatoyd v. Chief Constable of West Yorkshire (2000)

ALL ER 1742 suggests that it is in fact a battery where a Defendant sets a dog on his
victim.

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D) MENS REA OF BATTERY

In R v Venna [1976] QB 421, James J stated "the element of mens rea in the offence of
battery is satisfied by proof that the defendant intentionally or recklessly applied force to
the person of another".

Recklessness here bears its subjective Cunningham meaning.

iii) JUSTIFICATIONS FOR ASSAULT/BATTERY

An assault is said to be excusable in the following circumstances (Note that this List is
not exhaustive):

1. Where the Defendant acts in self defence;

2. Where the Act is a Necessity to preserve the life or health or well being of the
victim of the assault {See Re F (Mental Patient: Sterilization [1990] 2 A.C. 1}

3. Physical contact in the ordinary conduct of social life i.e. jostling in a crowd.

4. Consent - See R v. Wilson [1996] 3 WLR 125 where the Judges noted that
the principle in R v. Brown was distinguishable and seemingly applied only to
sado-masochistic encounters.

Also see:

a. R v. Coney (1882) 8 QBD 534;

b. Dicta by Swift J in R v. Donavan [1934] 2 KB 498 at page 507;

c. R v. Brown [1994] A.C. 212;

d. Dicta of Lord Lane C.J. Attorney General’s Reference No. 6 of 1980

[1981] Q.B. 715 at p. 719; )

e. R v. Clarence (1888) 22 QBD 23 – knowingly inflicting a venereal

disease and consent of D’s wife during intercourse;

f. R v. Dica [2004] QB 1257 and R v. Konzani [2005] 2 Cr. App. R 14 –

knowingly giving another HIV/AIDS.

5. Lawful chastisement or correction;

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 6. Properly conducted sports and games;

7. Reasonable surgical intervention

8. Dangerous but lawful exhibition

B.

OCCASSIONING ACTUAL BODILY HARM

Elements of the crime:

 A) ACTUS REUS

For the actus reus of this offence to be complete there must be:

(a) an assault, i.e. any act which causes the victim to apprehend an immediate infliction
of violence or the actual infliction of violence (BATTERY)

(b) occasioning.

(c) bodily harm.

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As we have already explored what an assault means in law we will explore the other pre-
requisites for the actus reus.

OCCASIONING

The word 'occasioning' can be taken to mean the same as 'causing', in that it must be
shown that the defendant's actions have caused the bodily harm. The test that should be
applied to determine whether the defendant was the cause, in law, of the victim's injury
was explained by the Court of Appeal in:

R v Roberts (1971) 56 Cr App R 95.

The defendant gave a lift in his car, late at night to a girl. He made unwanted advances of
a sexual nature to her which alarmed her. She feared he intended to rape her and as the
car was moving, she opened the door and jumped out suffering grazing and concussion.
The defendant was convicted under s47 of the U.K. OAPA and Stephenson LJ stated that
the test for causation in law was to ask whether the result was the reasonably foreseeable
consequence of what the defendant was saying or doing.

This view was confirmed by the House of Lords in R v Savage; DPP v Parmenter
[1991].

ACTUAL BODILY HARM

The meaning of 'actual bodily harm' was explained by the Court of Appeal in:

R v Chan-Fook [1994] 2 All ER 552

The Court of Appeal held that 'harm' is a synonym for 'injury' (so that it would not be
enough that the victim's health or comfort had been interfered with, if no injury had been
caused), and that 'actual' indicates that the injury should not be so trivial as to be wholly
insignificant.

The Court also held that 'bodily harm' is not limited to harm to the skin, flesh and bones
of the victim. It includes the organs, nervous system and brain. Accordingly, it can
include psychiatric injury but it does not include mere emotions or states of mind which
are not themselves evidence of an identifiable clinical condition. Where there is expert
evidence of psychiatric injury the jury should be directed that the injury is capable of
being actual bodily harm. Juries should not be directed that an assault which causes a
hysterical or nervous condition is an assault occasioning actual bodily harm.

TELEPHONE CALLS FOLLOWED BY SILENCE

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The House of Lords has upheld the decision of the Court of Appeal that a telephone call
or a series of telephone calls, followed by silence, could constitute an assault causing
actual bodily harm:

R v Ireland [1997] 4 All ER 225.

The defendant made repeated silent telephone calls, mostly at night, to three women, as a
result of which they suffered psychiatric illness. He was charged with three counts of
assault occasioning actual bodily harm under s47 of the 1861 Act. The House of Lords
held:

(1) In the light of the best current scientific appreciation of the link between the body and
psychiatric injury, the words 'bodily harm' in ss20 and 47 of the 1861 Act were capable of
covering recognised psychiatric illnesses, such as an anxiety disorder or a depressive
order, which affected the central nervous system of the body. However, those neuroses
had to be distinguished from simple states of fear, or problems in coping with everyday
life, which did not amount to psychiatric illnesses. Since, in the instant appeal the victims
had developed anxiety and depressive disorders, it followed that they had suffered 'bodily
harm'.

(2) The making of silent telephone calls which caused psychiatric injury to the victim was
capable of amounting to an assault in law under s47 of the 1861 Act where the calls
caused the victim to apprehend an immediate application of force. Accordingly the
appeal would be dismissed.

STALKING

Stalking may also amount to an assault occasioning actual bodily harm, where it causes a
clinical illness (as opposed to simple anxiety and stress). See:

R v Constanza [1997] Crim LR 576.

The defendant was convicted of occasioning actual bodily harm. The victim was a female
ex-colleague. Between October 1993 and June 1995 he followed her home from work,
made numerous silent telephone calls, sent over 800 letters, repeatedly drove past her
home, visited her against her expressed wishes, and on three occasions wrote offensive
words on her front door. In June 1995 the victim received two further letters which she
interpreted as clear threats. She believed that he had "flipped" and that he might do

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something to her at any time. In July she was diagnosed as suffering from clinical
depression and anxiety. It was the doctor's view that the defendant's actions had caused
this harm.

The Court of Appeal held that the issue before the Court was whether it was enough if the
Crown has proved a fear of violence at some time not excluding the immediate future. In
the Court's view it was. It was an important factor that the defendant lived near the victim
and she thought that something could happen at any time. The judge was entitled to leave
to the jury the question whether or not she had a fear of immediate violence, and the jury
was entitled to find that she did. The Court rejected the defence’s submission that a
person cannot have a fear of immediate violence unless they can see the potential
perpetrator. It rejected a further submission that an assault could not be committed by
words alone without a physical action. The indictment made it clear that the assault relied
on was that constituted by the last letter.

In the U.K. the problem of stalking has now been dealt with in the Protection From
Harrassment Act 1997 which came into force on 16 June 1997.

Please note that no similar legislation has yet been implemented in Jamaica and
consequently our laws on stalking remains somewhat deficient.  

B) MENS REA

Liability is established if the defendant has the mens rea of common assault (intention or
recklessness). No mens rea at all is required as to causing actual bodily harm. All that
need be proved is the causal link between the assault and the harm. See:

R v Savage; DPP v Parmenter [1991] 4 All ER 698

This matter relates to two separate cases which were eventually tried together. The facts
are outlined as follows:

R v Savage [1991] 4 All ER 698.

The defendant was charged with unlawful wounding under s20, the prosecution having
alleged that she had approached the victim and thrown the contents of a glass of beer at
her, and that she had let go of the glass which broke, with the result that the victim
suffered cuts. She admitted that it had been her intention to throw the beer over the victim
but denied any intention to cut her with the glass. The defendant appealed successfully
against her conviction under s20 of the U.K OAPA because of the trial judge's
misdirection as to the mental element for that offence, but the court substituted a
conviction for s47 of the U.K. OAPA, on the basis that the offence did not require proof

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of recklessness or 'maliciousness' in relation to the 'occasioning' of the actual bodily
harm. The defendant had deliberately thrown beer over the victim, an act which was
obviously an assault, and that 'assault' had undoubtedly occasioned the actual bodily harm
which occurred.

 DPP v Parmenter [1991].

The defendant had caused injury to his young baby by tossing him about in a way which
would have been acceptable with an older child, but not with one so young. He did not
realise that he might cause harm by this action. The House of Lords held that he could not
be liable under s20 as he had not foreseen the risk of any harm. It was not necessary
under s20 that he foresee the grievous bodily harm which must be caused, but the
defendant must foresee that he might cause some harm.

Lord Ackner noted, in delivering the judgment, that once the assault was established, the
only remaining question was whether the victim's injury was the natural consequence of
that assault. This matter can be resolved by applying an objective test which does not
involve enquiring into the defendant's state of mind. His Lordship stated:

"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 is 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."

PENALTY

Pursuant to Section 43 of the OAPA “whosoever shall be convicted upon an indictment

of any assault occasioning actual bodily harm shall be liable to be imprisoned for a term
not exceeding three years, with or without hard labor; and whosoever shall be convicted
upon an indictment for a common assault shall be liable, to be imprisoned for a term not
exceeding one year, with or without hard labour”.

C. MALICIOUSLY WOUNDING OR MALICIOUSLY INFLICTING GRIEVOUS

BODILY HARM

Section 22 of the Offences Against the Person Act states that:

“Whosoever shall (a) unlawfully and maliciously (b) wound or (c) inflict any grievous
bodily harm upon any other person, either (d) with or without any weapon or instrument,

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shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be
imprisoned for a Term not exceeding three years, with or without hard labour.”

Implicit in the foregoing section are two ways of committing the foregoing offence:

 Maliciously wounding
 Maliciously inflicting GBH

i) ACTUS REUS

 MALICIOUS WOUNDING

Wounding requires there to have been a break in the surface of the skin.

Note the following technical points:

 Both the dermis and the epidermis must be broken (Moriarty v Brooks (1834) 6
C & P 684).

 A scratch or break to the outer skin is not sufficient if the inner skin remains intact
(M'Loughlin (1838) 8 C & P 635; R v. Morris [2005] EWHC Crim. 609.
 An internal rupture of blood vessels in the victim's eyes will not amount to
wounding within s20 of the OAPA (JCC (A Minor) v Eisenhower (1984) 78 Cr
App R 48).

A defendant in such a case might, however, still be guilty of assault occasioning actual
bodily harm, or even grievous bodily harm (s20) in extreme cases.

GRIEVOUS BODILY HARM

Grievous bodily harm was defined by the House of Lords in DPP v Smith [1961] AC
290 as meaning nothing more technical than "really serious bodily harm".

The Court of Appeal has since held, in R v Sanders [1985] Crim LR 230, that it is
sufficient for a trial judge to direct a jury that grievous bodily harm simply means
"serious harm".

INFLICT

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The term "inflict" should generally be treated as simply requiring proof of causation.
Grievous bodily harm may be inflicted directly or indirectly. See:

R v Martin (1881) 8 QBD 54

The defendant blocked the exit doors of a theatre, put out the lights in a passageway, and
shouted 'Fire!' as the theatre-goers were leaving the performance. In the ensuing panic,
many were severely injured by being crushed against the locked doors. The defendant
was convicted under s20 and appealed. His conviction was confirmed and it is implicit in
the decision that the indirect nature of the way in which the defendant's acts had caused
the harm presented no bar to liability.

R v Wilson [1984] AC 242

The defendant motorist had been involved in an argument with a pedestrian, which
culminated in the defendant punching the pedestrian in the face.

Lord Roskill stated:

"In our opinion, grievous bodily harm may be inflicted either where the accused has
directly and violently "inflicted" it by assaulting the victim, or where the accused has
"inflicted" it by doing something, intentionally, which, although it is not itself a direct
application of force to the body of the victim, does directly result in force being applied
violently to the body of the victim, so that he suffers grievous bodily harm."

The House of Lords recently upheld the decision of the Court of Appeal that a "stalker"
could be convicted of an offence of unlawfully and maliciously inflicting grievous bodily
harm, contrary to s20, even where he had not applied physical violence directly or
indirectly to the body of the victim.

See:

R v Burstow [1997] 4 All ER 225

The defendant had conducted an eight-month campaign of harassment against a woman

which included making both silent and abusive telephone calls to her, distributing
offensive cards in the street where she lived, visiting her place of work and her home,
taking photographs of her and her family, and sending her a note which was intended,

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and was understood to be, menacing. The victim was badly affected by that campaign of
harassment; it preyed on her mind, she was fearful of personal violence and a consultant
psychiatrist stated that she was suffering from a severe depressive illness. The defendant
was charged with one count of unlawfully and maliciously inflicting grievous bodily
harm contrary to s20 OAPA.

The House of Lords held:

(1) In the light of the best current scientific appreciation of the link between the body and
psychiatric injury, the words 'bodily harm' in ss20 and 47 of the Act were capable of
covering recognised psychiatric illnesses, such as an anxiety disorder or a depressive
order, which affected the central nervous system of the body. However, those neuroses
had to be distinguished from simple states of fear, or problems in coping with everyday
life, which did not amount to psychiatric illnesses. Since, in the instant appeal the victims
had developed anxiety and depressive disorders, it followed that they had suffered 'bodily
harm'.

(2) Furthermore, an offence of inflicting grievous bodily harm under s20 of the OAPA
could be committed even though no physical violence was applied directly or indirectly
to the body of the victim. Accordingly the appeal would be dismissed.

ii) MENS REA

The mens rea required is denoted by the word 'maliciously'. In order to prove that the
defendant acted maliciously, it is sufficient to prove that he intended his act to result in
some unlawful bodily harm to some other person, albeit of a minor nature, or was
subjectively reckless as to the risk that his act might result in such harm. See:

 R v Mowatt [1968] 1 QB 421 at page 426

The defendant was convicted under s20 following an attack he had carried out on a police
officer, during which he had rained blows on the officer's face and pushed him roughly to
the ground.

Regarding the term 'maliciously' Lord Diplock stated:

"In the offence under section 20 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. It is quite unnecessary that the accused should have foreseen that his unlawful

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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."

This was approved by the House of Lords in R v Savage; DPP v Parmenter [1991].
Consequently, a defendant could now be guilty of the offence if he punches a victim
foreseeing that he might cause bruising, but actually cuts his face with the force of the
blow.

However, the defendant must foresee the possibility of some physical harm occurring or
he will not be liable under s20. [See R v Savage; DPP v Parmenter [1991] 4 All ER
698]

On the same principle, an intention merely to frighten will not be sufficient for this
offence. See:

R v. Sullivan [1981] Crim LR 46.

The defendant, who had swerved his car towards a group of pedestrians intending to
scare them was acquitted of a charge under s20, when he lost control of the vehicle and
subsequently collided with the pedestrians causing injury. As he had only foreseen the
risk of 'psychic harm' his liability was reduced to assault occasion actual bodily harm.

Also See R v. Brady [2006] EWCA 2413

 D. MALICIOUSLY WOUNDING OR CAUSING GRIEVOUS BODILY HARM

WITH INTENT

 Section 20 of the Offences Against the Person Act provides:

“Whosoever shall (a)unlawfully and maliciously, (b) by any means whatsoever, (c)
wound, or (d) cause any grievous bodily harm (e)to any person, or (e) shoot at any
person, or by drawing a trigger, or in any other manner attempt to discharge any kind of
loaded arms at any person, with intent in any of the cases aforesaid, to maim, disfigure
or disable any person, or to do some other grievous bodily harm to any person, or with
intent to resist or prevent the lawful apprehension or detainer of any person, shall
be guilty of felony, and, being convicted thereof, shall be liable, to be imprisoned for life
with or without hard labour”. 

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There are essentially four (4) ways to commit this offence:

 Wounding with intent to cause GBH

 Wounding with intent to resist/prevent arrest

 Causing GBH with intent to cause GBH

 Causing GBH WITH intent to resist/prevent arrest

i) ACTUS REUS

The actus reus of the offence, either maliciously wounding or causing grievous bodily
harm, is the same as under Section 22 (above).

With regard to the word "causing", the House of Lords in R v Mandair [1994] 2 All ER
715, held that "causing" was "wider or at least not narrower than the word 'inflict'.”

ii) MENS REA

The defendant must be 'malicious' (see above under s22) but in addition he must be
proved to have had a further specific intent, in that it must have been the defendant's
intention:

(1) to do some grievous bodily harm to the victim, or

(2) to resist or prevent a lawful arrest or detention. See:

R v Belfon [1976] 1 WLR 741

The defendant had slashed the victim with a razor causing severe wounds to his face and
chest. The Court of Appeal held that in order to establish the offence under s18 (same as
Jamaica’s section 20 of the OAPA) it was essential to prove the specific intent.
References to the defendant foreseeing that such harm was likely to result or that he had
been reckless as to whether such harm would result, would be insufficient.

PLEAS NOTE THE FOLLOWING ARTICLE PUBLISHED IN AN ARTICLE IN

A DAILY PAPER IN THE U.K.

The Independent
15 October 2003

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HIV man is found guilty of deliberately infecting lovers

By Jeremy Laurance, Health Editor

A man who knowingly infected two women with HIV has become the first person in
more than a century to be convicted of inflicting biological grievous bodily harm.

Mohammed Dica, 37, who has three children, persuaded two women to have unprotected
sex without telling them he had HIV. He was a refugee from Somalia, but claimed to be a
lawyer and to have served as a soldier in the Gulf War. The court heard that he was a
practised Lothario who told the women a pack of lies. Doctors say the victims may have
no more than 10 years to live.

Dica told the first, a university graduate who worked for the United Nations, that he had
had a vasectomy and did not need to use protection, and promised the second, a woman
from Surrey with two children, that he loved her and wanted her to have his children.
When she left her husband to be with him, he disappeared.

Dica denied the offences, which took place between 1997 and 2000, and told detectives
that both women had known of his condition.

Yesterday a jury of six men and six women at Inner London Crown Court took two hours
to find him guilty after the prosecution claimed he had "coldly and callously" infected his
two lovers with the virus.

Judge Nicholas Philpot deferred sentencing until next month but warned Dica he faced a
lengthy period in prison. The offences carry a maximum of five years each.

Detectives believe there may be other women infected by Dica and asked any who had
had a relationship with him to come forward.

The case is the first since Charles James Clarence was convicted in 1888 of causing
grievous and actual bodily harm after infecting his wife Selina with gonorrhoea. He was
cleared on appeal when the House of Lords ruled that passing a sexually transmitted
disease during consensual sex did not constitute an assault.

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The same argument was used by Dica's lawyers. They said that as both women had
agreed to sex, no assault had been committed. But Judge Philpot decided the law had
moved on since 1888 as a result of a succession of cases which had chipped away at the
Clarence position.

In 1997, Anthony Burstow, 36, was convicted of inflicting psychiatric grievous bodily
harm on a woman with stalking and telephone calls. On appeal, the Lords decided the
Crown did not have to prove battery to secure a bodily harm conviction.

Yesterday's conviction which follows the line of a similar case in Scotland two years ago.
In March 2001, Stephen Kelly, 33, was found guilty of "culpable and reckless conduct"
for passing HIV to his girlfriend.

Dica's lawyers said they would appeal, and the case is likely to go to the Lords.

The National Aids Trust criticized the verdict. It said: "Treating cases like this as a
criminal offence will not prevent such incidents. People should feel able to disclose their
HIV status without fear of rejection or discrimination."

E. MALICIOUSLY ADMINISTERING POISON

This offence is covered by Sections 13, 16, 25 and 26 of the OAPA.

Section 13 makes it attempted murder for a person to “administer to, or cause to be

administered to, or to be taken by any person, any poison or other destructive thing…”

Under section 13, if the administering of poison is done “with intent, to commit murder,
[such a person] shall be guilty of felony, and, being convicted thereof, shall be liable to
be imprisoned for life, with or without hard labour”.

Section 25 makes it a felony to administer poison with intent to endanger life or inflict
GBH. The section states as follows:

“Whosoever shall unlawfully and maliciously administer to, or cause to be administered

to or taken by any other person, any poison or other destructive or noxious thing so as
thereby to endanger the life of such person, or so as thereby to inflict upon such person
any grievous bodily harm, shall be guilty of felony, and being convicted thereof, shall be
liable to be imprisoned for a term not exceeding ten years, with or without hard labour.”

While Section 26 creates the misdemeanor and lesser offence of Administering poison
with Intent to Injure or Annoy.

The section states as follows:

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“Whosoever shall unlawfully and maliciously administer to, or cause to be administered
to or taken by any other person, any poison or other destructive or noxious thing with
intent to injure, aggrieve, or annoy such person, shall b guilty of a misdemeanor, and,
being convicted thereof, shall be liable to be imprisoned for a term not exceeding three
years, with or without hard labour.”

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