Does recklessness as to some harm suffice for malicious wounding?

OAPA ss.20 & 18 prohibit ‘malicious wounding’ or inflicting GBH. Were courts correct to interpret this to require only recklessness as to some harm?

By James Manwaring (Associate Professor of Law, Homerton College, University of Cambridge)

Open Last reviewed 1 November 2026

Overview

Sections 20 & 18 of the Offences Against the Person Act 1861 (OAPA), which still governs serious non-fatal offences, prohibit ‘maliciously’ wounding or inflicting grievous (i.e. really serious) bodily harm. ‘Maliciously’ is standardly interpreted to mean ‘intentionally or recklessly’. However, courts have interpreted this language to mean that recklessness as to causing merely some harm will suffice for this element of ss. 18 & 20.

The statutory language

Section 20 of the OAPA criminalises those who

unlawfully and maliciously wound or inflict any grievous bodily harm […]

Similarly, section 18 of the OAPA criminalises those who

unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm […]

A plain reading of these sections is that the subject matter of the defendant’s ‘malice’ (i.e. intention or recklessness)¹ is the wounding or grievous bodily harm which they inflicted or caused. In other words, the defendant must at least be reckless as to wounding or causing really serious harm.²

The cases

By contrast with the plain statutory language, the Court of Appeal in Mowatt (1968) held that the ’the word ‘maliciously’’ requires only

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 act might cause physical harm of the gravity described in the section, i.e., a wound or serious physical injury (Diplock LJ at 426)

The House of Lords endorsed this passage in Savage, Parmenter (1992):

it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, 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 (Lord Ackner at 752)

The reason offered by Lord Ackner was that the plain interpretation of ss.18 and 20 (as I have called it) would entail s.20 having ‘a very limited scope’ (752).

Academic commentary

Three doubts can be raised about the courts’ interpretation of ss.18 and 20.

First, the standard definition of ‘malice’ is ‘intention or recklessness’ and the standard definition of ‘recklessness’ is ‘advertent taking of an unreasonable risk’. These definitions are attributable to Professor Kenny, as endorsed by the Court of Appeal in Cunningham (1957).³ Mowatt reasoned that Kenny’s definition was not ‘appropriate’ if generalised to the s.20 context. Yet the Kenny definition has been repeatedly endorsed subsequently, in full generality. Contrary to its stated reasoning, the effect of Mowatt was not to doubt the generality of Kenny’s definition of recklessness, but rather simply to change the subject matter of the required recklessness: from the plain reading (recklessness as to wounding/GBH) to an unsupported narrower reading (recklessness as to some harm).

Second, any ambiguity in penal statutes ought to be interpreted favourably to the defendant. Where the plain statutory language favours the defendant relative to alternative interpretations, the point is a fortiori. Yet the courts’ interpretation of ss.18 and 20 is a strained reading which disfavours defendants, in setting a lower minimum mens rea.

Third, the plain statutory reading is compatible with the ‘correspondence principle’, defended by several academics, according to which each actus reus element should have a corresponding mens rea element. In Savage Lord Ackner noted that the law has never accepted the correspondence principle. But it enjoys wide academic support, as it holds defendants responsible only for harms for which they had some fault; some mens rea.

Conclusion

Given Mowatt and Savage, it is conventionally settled law that ‘maliciously’ in ss.18 and 20 OAPA require only recklessness as to some harm. This is not a fruitful candidate for an open legal question.

Nonetheless, the current interpretation contravenes the plain statutory language of the OAPA. And it does despite this disfavouring defendants in a penal statute, contrary to standard canons of interpretation. Under these exceptional circumstances, the issue is worth further testing in the courts.