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9.

1 Assault occasioning actual bodily harm Section 47 of the Offences Against the Person Act 1861 provides: Any assault occasioning actual bodily harm... is an offence carrying a maximum of five years' imprisonment. For this offence the prosecution must prove that the defendant committed an assault or battery (see Chapter 8) and that the assau t or !attery caused actual bodily harm. "he wording of s.47 does not define assault !ut merely provides that an assau t #hich occasions (causes) actua !odi y harm is a more serious offence than common assault. Fo o#ing the decision of the $ouse of %ords in the case of Courtie &1'8() #here %ord *ip oc+ said it is p ain !eyond argument that Par iament has created t#o offences..., it is clear

that s.47 created a separate statutory offence.

Step by step establish AOABH -f the e ements (i.e. actus reus and mens rea) of assault or battery are not made out then no offence contrary to s.47 can ie. 1st . consider A or !attery -t is important to !e a#are that #hen you are ans#ering a /uestion #here the appropriate offence is that contrary to s.(01 the first thing you must consider is whether there was an assault or a battery. "his #i re/uire an ana ysis of the e ements of these offences as they re ate to the facts of the /uestion you are considering.

2nd 3Consider #hether $arm amounted to A4$ Once the assau t and5or !attery is esta! ished you then need to esta! ish #hether the harm suffered by the victim amounted to actual bodily harm and 6rd . Consider #hether the A4$ occasioned !y A or 4 if it did then the final issue #ou d !e #hether it #as occasioned by the assault and!or battery.

App ication For e7amp e1 if you #ere faced #ith a /uestion #hich re/uired you to consider the possi! e criminal liability of Simon #ho1 while "aul was asleep# hit "aul on the head with an iron bar causing him to suffer momentary unconsciousness1 this is ho# you shou d approach it. 8imon is i+e y to !e charged #ith the offence of assau t occasioning actua !odi y harm contrary to s.(0 OAPA. Consider1 explaining the definitional elements of battery1 #hether the facts of the /uestion indicate that that offence can !e esta! ished. -f so1 consider #hether momentary unconsciousness might amount to actual bodily harm. -f so1 consider whether the battery occasioned $caused%

the actual bodily harm &this is an issue of causation. -f a of the above can be proved beyond reasonable doubt then Simon will be guilty of the offence contrary to s.47. 9ote that the offence of assau t has not !een considered !ecause the facts of the /uestion state c ear y that Pau #as as eep. -t fo o#s that he #ou d not have apprehended the inf iction of immediate un a#fu vio ence.

Actus reus 1. Assault and 'attery For the actus reus of assau t and !attery1 p ease revisit Chapter 8. (n the ma)ority of cases the prosecution #i rely on establishing a battery1 but as #e have seen in the case of (reland this offence may also be based upon a technical assault. In that case the accused had caused bodily harm by a series of silent telephone calls. (f * waves a +nife in " s face and " falls and in)ures himself in the process of escaping #hat ie believes will be the immediate infliction of violence1 * will have committed the offence under s.47.

,. Actual bodily harm "he /uestion of whether an in)ury is serious enough to be described as -actual: is a .uestion of fact and degree for a )ury. "his is some#hat vague. A ;udge #i !e a! e to give some guidance1 !ut ie must !e carefu not to usurp the ;ury<s function to decide #hat is an issue of fact. "he hurt or in;ury need not be serious or1 indeed# permanent !ut it must be more than transient or trifling and includes any in)ury li+ely to interfere with the health or comfort of a person (/iller &1'=().

0han 1oo+&1''()3 more than trivial injury According to 2obhouse 34 "hese are three #ords of the >ng ish anguage #hich re.uire no elaboration and in the ordinary course shou d not receive any. "he #ord 'harm' is a synonym for in)ury. "he #ord 'actual' indicates that the in;ury (a though there is no need for it to be permanent) should not be so trivial as to be wholly insignificant. "he purpose of the definition in s.(0 is to define an e ement of aggravation in the assault. -t must !e an assau t #hich !esides being an assault $or assault and battery% causes to the victim some in)ury.

-nc ude oss of consciousness "his #ou d include a temporary loss of consciousness as it em!raced1 ?an in)urious impairment to 5the victim s6 sensory functions:1 and thus it fo o#ed that the !odi y harm #as ?actual.: (7 v *"" &2@@6)).

A4$ did not need e7terna in;ury1 !ruise etc1 hair cutting enough *"" v Smith &2@@6) he *ivisiona Court of the Aueen,s 4ench he d that evidence of external bodily in)ury or a brea+ in or bruise to the surface of the s+in was not re.uired for the purposes of actual bodily harm within s.47 of the Offences Against the Person Act 1861. 2air was part of the human body $bodily% #hich was intrinsic to each individual and the cutting off of a substantial part [actual not trivial] of a person's hair [in this case is ponytail]1 without that person's consent1 in the course of an assau t #as capable of amounting to the offence contrary to s.47 even where it did not leave any mar+ or brea+ the s+in. "he body# includes all parts of the body1 including the hairs upon the scalp.

Chan Fook [199 ] and Ireland [199!] "# follo$ed.

*renching someone #ith !eer is A4$B 4attery or A4$B A bruise# a gra8e and a cut would all be capable of !eing descri!ed as actua !odi y harm1 but drenching someone with beer1 #hi e it would be the application of force and1 therefore1 sufficient for a !attery1 would not constitute harm. Savage &1''1) "he trial )udge could1 of course1 rule that drenching with beer was not capable of constituting actua !odi y harm. 2owever# once he rules something is capable of being actual bodily harm# #hether it is actual bodily harm is a )ury issue. Argua! y sti yes as DPP v Smith he d that Ccapa! e of amounting to the offence contrary to s.(0 even #here it did not eave any mar+ or !rea+ the s+in.< However, this case reasoning for cutting of hair

%erhaps beer did not cause any bodily harm $hile hair as part of body bein& cut

C4odi y< e7tend !eyond physica in;ury

-n /iller1 #here a hus!and forced his #ife to have se7ua intercourse# 3yns+ey 4 stated that actua !odi y harm includes any hurt or in)ury which interferes with the health or comfort of the prosecutor and that this includes an hysterical $in a state of uncontrolled e'citement( an&er( or panic% or nervous condition.

-n 0han 1oo+1 the defendant (C3F) had suspected that the comp ainant had sto en a ring then oc+ed him in an upper room. "he 91 fearful that C3F might return1 effected an escape through the window and sustained in)uries when he fell. $o!house %D said: "he first /uestion on the present appea is #hether the inc usion of the #ord ,!odi y, in the phrase ,actua !odi y harm, imits harm to harm to the s+in1 f esh and !ones of the victim. 3yns+ey 4 re)ected this submission. (n our )udgment he was right to do so. "he body of the victim includes all parts of his body# including his organs# his nervous system and his brain.

'odily in)ury therefore may include in)ury to any of those parts of his body responsible for his mental and other faculties.

4odi y inc uded recognisa! e psychiatric i ness Ehat type of psychological harm can amount to actua !odi y harmB 3 included identifiable psy. but not mere that #here the a eged harm is psychological in nature1 it is not capable of amounting to actua !odi y harm unless expert evidence of an identifiable psychological in)ury is adducedF it does not include mere emotions such as fear or distress or panic. :either does it include states of mind that are not themse ves evidence of some identifiable clinical condition. 0han 1oo+

emotion

(reland and 'urstow 3 Included psy. as it coherent $ith scientific apprehension link $ith body harm $ith psy -n (reland and 'urstow the $ouse of %ords1 approving the decision of 0han 1oo+ confirmed that a recognisa! e psychiatric i ness1 whether of a neurotic# psychoneurotic or psychotic nature1 may amount to bodily harm. Ehether or not psychiatric i ness amounts to 'actual' or 'grievous' !odi y harm depends upon the seriousness of the illness. 3ord Steyn said: "he proposition that the Gictorian egis ator #hen enacting ss. 181 2@ and (0 of the 1861 Act1 #ou d not have had in mind psychiatric i ness is no dou!t correct. Psychiatry #as in its infancy in 1861. 4ut the su!;ective intention of the draftsman is immateria .

"he on y re evant in/uiry is as to the sense of the #ords in the conte7t in #hich they are used Horeover the 1861 Act is a statute of the ,a #ays spea+ing, type: the statute must be interpreted in the light of the best current scientific appreciation of the in+ !et#een the !ody and psychiatric in;ury. For these reasons - #ou d1 therefore1 re;ect the cha enge to the correctness of I v Chan Foo+&1''() -n my vie# the ru ing in that case #as !ased on princip ed and cogent reasoning and it mar+ed a sound and essentia c arification of the a#. ( would hold that 'bodily harm' in ss.1;# ,< and 47 must be interpreted so as to include recognisable psychiatric illness

*haliwal = e'clude emotion( no reco&ni)able psy. the appellate court were not prepared to extend the definition of bodily harm to include emotional distress1 psycho ogica trauma or indeed any condition ess than a ?recognisa! e psychiatric in;ury:. "here #as a concern e7pressed that the present clear line should not be blurred1 nor that any degree of e asticity shou d !e introduced to it.

8>%f3I>f%>C"-O9 *id the psychiatric harm in -re and occur as the resu t of an assau tB -f you are unsure1 revisit Chapter 8 and reconsider the reasons for the $ouse of %ords decision in -re and.

>. ?ccasioning "he prosecution must prove that the defendant's conduct caused the actual bodily harm. "his is an issue of causation #hich #as discussed in Chapter 6.

* did not need to foresee the ris+ of harm "he occasioning of actual bodily harm is an additional actus reus element !ut there is no re.uirement of mens rea in respect of it 3ord Ac+ner in Savage and "armenter &1''1)1 confirming @oberts &1'01) CA and overru ing 8pratt &1''1) on this point1 said: "he verdict of assau t occasioning actua !odi y harm may !e returned upon proof of an assau t together #ith proof of the fact that actual bodily harm was occasioned by the assault. "he prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was rec+less as to #hether such harm #ou d !e caused.

/ens rea "he mens rea for the offence contrary to s.47 is that re.uired in respect of a common assault or battery. "he occasioning of actual bodily harm is an additional actus reus element !ut there is no re.uirement of mens rea in respect of it. 3ord Ac+ner in Savage and "armenter &1''1)1 confirming @oberts &1'01) CA and overru ing 8pratt &1''1) on this point1 said: "he verdict of assau t occasioning actua !odi y harm may !e returned upon proof of an assau t together #ith proof of the fact that actua !odi y harm #as occasioned !y the assau t. "he prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was rec+less as

to #hether such harm #ou d !e caused.

>88>9"-A% I>Adi9g 4efore underta+ing the ne7t activity: read the Dudicia 8tudies 4oard 8pecimen *irections to the Dury for assau t1 !attery and the offence contrary to s.(01 #hich is in your study pac+.

A07(9(7A *etermine what are the relevant offences in the t#o situations out ined !e o#. Ehat1 in each case1 would the prosecution need to prove beyond reasonable doubt in order to gain a convictionB $o# shou d the ;ury !e directed in each case on the menta e ement re/uired for the re evant offenceB

B1 Iu!y made a num!er of threatening te ephone ca s to Da+e. Da+e is no# too frightened to eave the house in case Iu!y hurts him and is terrified every time some!ody +noc+s on his front door. @uby. "he re evant offence is pure assault. "herefore the prosecution would need to prove beyond reasonable doubt that @uby intentionally or rec+lessly caused 4a+e to apprehend the application of immediate unlawful violence. "here are a num!er of common a# authorities for this proposition #hich inc ude Fagan v HPC &1'6')1 Genna &1'0=) and 8avage and Parmenter &1''1). -f this formed part of a pro! em /uestion you #ere ans#ering in an e7amination1 one authority would be sufficient.

"he actus reus of this offence #i !e made out if it can be proved that 4a+e apprehended immediate violence. 8ee 3ord Steyn in (reland as to 'immediate'. "he direction to the ;ury on the menta e ement re/uired #hich is recommended !y the Dudicia 8tudies 4oard #ou d !e as fo o#s: "he menta e ement in the offence of assau t is esta! ished #here it is proved that the defendant intentionally or rec+lessly caused another to fear that he #ou d !e sub)ected to immediate and unlawful violence. -t is therefore sufficient to prove that the defendant was rec+less as to whether the complainant might fear that he #as to !e su!;ected to immediate and un a#fu vio ence.

"o prove rec+ essness you must !e sure that the defendant realised that 54a+e6 might fear that he would then and there be sub)ect to immediate and unlawful force and nonetheless went on and too+ that ris+.

B, Dohn hit 4ar!ara on the head. 4ar!ara momentari y ost consciousness 4ohn. "he re evant offence is assault occasioning actual bodily harm contrary to s.47 of the ?ffences Against the "erson Act 1;C1. Ehat the prosecution needs to prove for Dohn to !e convicted of the s.(0 offence is that he committed a common assault (i.e. an assau t and5or a !attery)1 and that that assault caused actual bodily harm to 'arbara. Assault. -f 4ar!ara1 at any time !efore the actua inf iction of the ! o#1 apprehended the application of immediate and unlawful violence then1 su!;ect to the prosecution proving that Dohn intended her to do so or #as rec+ ess as to #hether she did1 he cou d !e gui ty of assau t (see feed!ac+ to the /uestion on Iu!y)

'attery. A !attery is the intentiona or rec+ ess inf iction of immediate un a#fu vio ence. "he actus reus is the infliction of the unlawful violence. >ven if the force used is trivial it may amount to a battery *Callis v +unn &1'6()) a though the facts of the /uestion indicate that the force used !y Dohn is unli+ely to have been trivial. "he facts indicate that that the actus reus of !attery is esta! ished. "he mens rea for battery is intention or rec+lessness.

-n addition to proof of an assau t and5or !attery1 proof that actual bodily harm was occasioned $caused% is re.uired in order to esta! ish the offence contrary to s.(0. Actual bodily harm. Actua !odi y harm is harm #hich interferes with the health or comfort of the victim and is more than merely transient or trifling *,iller &1'=()) and #ou d inc ude a temporary loss of consciousness (" v -%% &2@@6)). (t is li+ely# therefore# that it would be found that 'arbara suffered actual bodily harm.

?ccasioning. -t must !e proved that it #as 4ohn's act which caused 'arbara's actual bodily harm. "his is an issue of causation (see Chapter (). -t does not need to be proved that 4ohn intended or was aware of a ris+ of harm (8ee .oberts &1'01).)

"he specimen directions recommend that the ;ury shou d !e directed as to the mens rea as followsD "he menta e ement in the offence of common assau t is esta! ished where it is proved that the defendant intentionally or rec+lessly applied unlawful force to another person. "he mental element in the offence of assault occasioning actual bodily harm is precisely the same. Ehether actua !odi y harm #as 'occasioned' $caused% is simply a .uestion of causation and does not involve any consideration of rec+lessness1 see . v /ava&e and -%% v %armenter &1''2) 1 AC 6'' $%.

"o prove rec+ essness you must !e sure that the defendant realised that 5'arbara6 might be sub)ected to unlawful force (ho#ever s ight) as a resu t of what he was about to do and yet too+ the ris+ that that might happen

Euide to )ury A4$ is /uestion of fact eft to ;ury 0han&1oo+ "he phrase ?interference #ith the health or comfort of the victimF #hich has regu ar y !een used in directions to ;uries1 should not be used as it is li+ely to lead )urors into thin+ing that this is sufficient #hether or not any in;ury has occurred. :o psychiatric evidence #as produced in Chan-Fook and $o!house %D. said that1 in the a!sence of psychiatric evidence1 a .uestion of whether or not an assault occasioned psychiatric in)ury should not be left to the )ury.