R v Savage; R v Parmenter

Facts

Two appeals were heard together. In Savage, the appellant threw the contents of a pint of beer at a woman and the glass slipped from her hand and cut her. She was convicted under section 20, and the question was whether she had foreseen that some harm would result. In Parmenter, the appellant, a father, handled his infant son roughly, causing fractures, and was convicted under section 20. Both argued that they did not foresee any harm.

History

Savage was convicted under section 20 and Parmenter under section 20 of the Offences Against the Person Act 1861 at the Crown Court. After unsuccessful appeals to the Court of Appeal, they appealed to the House of Lords.

Issue

Whether 'maliciously' in section 20 requires subjective recklessness as to causing some physical harm or grievous bodily harm specifically; whether section 47 requires foresight of actual bodily harm or only foresight of assault or battery.

Held

Savage's conviction under section 20 was quashed and a conviction under section 47 substituted. Parmenter's section 20 conviction was quashed because the jury had been directed on the wrong test of foresight. The House held that section 20 requires intention or subjective recklessness as to causing some physical harm, and that section 47 requires intention or subjective recklessness as to an assault or battery only.

Ratio

• For section 20 OAPA 1861, 'maliciously' means intention or subjective recklessness as to causing some physical harm, not necessarily grievous bodily harm.
• For section 47 OAPA 1861, the mens rea is intention or subjective recklessness as to committing an assault or battery; foresight of actual bodily harm is not required.

The judgments

Key reasoning

• The term 'maliciously' in the 1861 Act has a settled meaning since Cunningham: actual intention or subjective recklessness as to the relevant consequence.
• Section 20 requires that the defendant intended, or was subjectively reckless as to, some physical harm resulting from his act, though not necessarily the serious harm that actually occurred.
• Section 47 is structured as an aggravated form of assault or battery; the additional element of actual bodily harm is a consequence for which no specific mens rea is required, only the mens rea for the underlying assault or battery.
• The Caldwell objective recklessness test does not apply to offences against the person, as it was formulated for criminal damage and would produce unjust results if extended.

Where it fits in the module

This case is central to Topic 3 (Non-Fatal Offences) as it defines the fault elements for sections 20 and 47 OAPA 1861. It builds on Cunningham (1957) by confirming subjective recklessness for offences against the person, distinguishes Caldwell (1982) as limited to criminal damage, and sets the foundation for later cases on psychiatric harm (Ireland [1998]) and the hierarchy of offences. It also informs the debate on whether the distinction between section 20 and section 47 mens rea is principled or anomalous, a theme revisited in G and R (2003) and the Law Commission's reform proposals.

Criticisms

• The reliance on Cunningham recklessness creates a subjective test that may be difficult to prove and allows defendants to escape liability by claiming they did not foresee any harm, even when their conduct was obviously dangerous.
• The decision leaves section 47 as a 'constructive liability' offence for the harm element, which conflicts with the principle that serious consequences should require some degree of fault.