R v Savage, DPP v Parmenter— A Compelling Case for the Code
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02854.x |
| Author | Ivan Hare |
| Published date | 01 January 1993 |
| Date | 01 January 1993 |
The Modern Law Review
[Vol.
CASES
R
v
Savage, DPP
v
Parmenter
-
A
Compelling
Case
for
the Code
Ivan
Hare”
56
‘It seems scarcely credible that 129 years after the enactment of the Offences Against
the Person Act 1861 three appeals should come before this court within one week
which reveal the law to be
so
impenetrable.’ This comment, made by Mustill LJ
in the Court of Appeal in
R
v
Parmenter,
was followed by a plea to the House of
Lords to ‘put the subject on an even keel.’’ The House had occasion to do
so
when
it heard the joined appeals in
R
v
Savage
and
DPP
v
Parmenter.2
The result can
only be described as extremely disappointing since the opportunity to inject
consistency and clarity into the area has been lost in a judgment which provides
no more than an ossification of the unsatisfactory and unprincipled reasoning that
had characterised previous decisions in this field. This note attempts to analyse the
issues of law raised in these cases from the point of view of principle and authority
after saying something by way of introduction about the context in which they arose.
Introduction
Criminal liability for an offence against the person depends upon the prosecution
being able to prove that the accused’s conduct has caused unjustified harm to another
human being; that at the time of this conduct the accused possessed (or possibly
ought to have possessed) a certain level of foresight; and that this level of foresight
related in some way to the harm created. This last requirement may be labelled
‘the referential point of fault.’3 In the present cases, two sections of the Offences
Against the Person Act 1861 were in issue: sections
20
and
47.
Section
20
provides
that it is an offence to ‘unlawfully and maliciously wound or inflict any grievous
bodily harm upon any person.’ The requisite degree of harm is fulfilled by a break
in the continuity of the whole skin or any really serious bodily harm.4 Section
47
creates the offence of ‘assault occasioning actual bodily harm,’ the
actus reus
of
which is satisfied by any harm calculated to interfere with the health or comfort
of the vi~tim.~ In the present appeals, the House of Lords had to determine the
level of foresight which the prosecution must prove under section
20
and the
*Fellow of Trinity College, Cambridge.
The author is grateful to Andrew Ashworth of King’s College, London and to Tony Weir and Graham
Virgo at Cambridge for their comments on an earlier draft.
1
2
3
[I9921
1
AC 699, at 712A and 712E; [I9911 2 WLR
408,
at 416H and 417D.
[I9921
1
AC 699; [I9911 3 WLR 914.
For further definition of this term and the argument that the referential point of
fault
ought to be the
same as the degree of harm specified
in
the definition of the crime, see Ashworth, Principles
ofcriniinul
Law
(1991) ch
5.
JCC
v
Eisenhower
[I9831 3 WLR 537 and
DPP
v
Smith
[I9611 AC 290.
R
v
Miller [I9541 2 QB 282.
4
5
@
The Modern Law Review Limited 1993 (MLR 56:1, January). Published by Blackwell
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