Assault occasioning actual bodily harm

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Assault occasioning actual bodily harm contrary to Section 47 Offences Against the Person Act 1861

The offence of section 47 Assault occasioning actual bodily harm is committed when a person assaults another, thereby causing actual bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling: (R v Donovan 25 Cr. App. Rep. 1, CCA).

It is an either way offence, which carries a maximum penalty on indictment of five years imprisonment and/or an unlimited fine not exceeding the statutory maximum

A verdict of assault occasioning actual bodily harm may be returned on proof of an assault together with proof of the fact that actual bodily harm was occasioned (caused) by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether harm would be caused. See: R v Savage; R v Parmenter [1991 4 All ER 698.

Where D is charged with assault occasioning actual bodily harm it is not necessary to identify which particular injury had been caused so long as the court is satisfied that some injury resulting in actual bodily harm had been caused by the assault committed by D. H v Director of Public Prosecutions [2007] EWHC 960 (Admin) (16 March 2007)

R v Savage [1992] UKHL 1 (07 November 1991) In Savage a woman attempted to throw beer over another woman, but the glass slipped and caused the victim an injury. The accused was cleared of an offence under section 20 Offences Against the Person Act 1861, but convicted under section 47 Offences Against the Person Act 1861. Parmenter was convicted of injuring his baby son and, again, the original charge under section 20 Offences Against the Person Act 1861 was converted to one of section 47 Offences Against the Person Act 1861

R v Donovan 25 Cr. App. Rep. 1, CCA
"For this purpose we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent but must no doubt be more than merely transient and trifling."

T v Director of Public Prosecutions [2003] EWHC 266 (Admin) (04 February 2003) Actual bodily harm: ” …what the Court of Appeal was excluding from the definition of actual bodily harm was harm that was "transient and trifling", not "transient or trifling". Accordingly, to focus on transience to the exclusion of triviality is in itself an inappropriate exercise.

In this case the victim been kicked unconscious by the Appellant and momentarily lost consciousness. He remembered nothing until being woken by a police officer. There was an issue at the trial as to whether the "momentary loss of consciousness" amounted to, or was capable of amounting to, "actual bodily harm" within the meaning of section 47 Offences Against the Person Act 1861. Held: “….it cannot be doubted that the loss of consciousness suffered by the victim in this case fell within the meaning of the word "harm". Nor can it be doubted that that harm was "bodily". It involved an injurious impairment to the victim's sensory functions. It is axiomatic that the bodily harm was "actual"....on the plain words of the section, the justices were entitled to find that the assault carried out by the appellant had occasioned actual bodily harm.”

Fook, R. v (22 October 1993)

Fook, R. v [1993] EWCA Crim 1 (22 October 1993)

Hobhouse LJ said:

"We consider that the same is true of the phrase 'actual bodily harm'. These are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word 'harm' is a synonym for 'injury'; the word 'actual' indicates that the injury, although it need not be permanent, should not be so trivial as to be wholly insignificant. The purpose of the definition in section 47 is to define an element of aggravation and assault. It must be an assault which, besides being an assault and battery, causes the victim some injury."
“Accordingly the phrase "actual bodily harm" is capable of include psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase "state of mind" is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused; its use is likely to create in the minds of the Jury the impression that something which is no more than a strong emotion, such as extreme fear or panic, can amount to actual bodily harm. It cannot. Similarly Juries should not be directed that an assault which causes a hysterical and nervous condition is an assault occasioning actual bodily harm. Where there is evidence that the assault has caused some psychiatric injury, the Jury should be directed that that injury is capable of amounting to actual bodily harm; otherwise there should be no reference to the mental state of the victim following the assault unless it be relevant to some other aspect of the case, as it was in Roberts.”

Burstow R v. Ireland, R v. [1997] UKHL 34 (24 July 1997)

Occasioned (causation)

The issue of causation is the same as in homicide

Generally defendant must be the operative and substantial (contributory and significant) cause of the harm.

The only exceptions, where defendant may be guilty even though her/his conduct is not operating, are where the harm is:

  • due to a reasonable escape-attempt by the victim: see R v Halliday (1886), or
  • due to an abnormality in the victim or
  • due to a natural consequence of the defendant’s conduct.

An example of this latter exception can be found in R v Roberts (1971) 56 Crim App Rep 95 where the victim jumped from a moving car to avoid an anticipated assault. See also Williams and Davis (1992) Crim LR 198.

Haystead v Chief Constable of Derbyshire of Derbyshire

In Haystead v Chief Constable of Derbyshire of Derbyshire (2000) EWHC QB 181 it was held that although battery requires proof of a direct application of force this may occur through a medium over which the defendant has control (such as a weapon or another person). Thus, the defendant was guilty of assaulting a child who was dropped by his mother when the defendant punched her.

22. DPP v K [1990] 91 Crim App R 23 This is a case whose context was a school chemistry class. One boy went to the lavatory to wash some acid off his hand. He took with him, very foolishly, a boiling tube of concentrated acid. He wanted to test the reaction of the acid with toilet paper, but then he heard footsteps outside. In a panic he poured the acid, or what remained of it, into the upturned nozzle of the drying machine that was there in the lavatory, and he went back to the class. Another boy went to the lavatory to wash his hands, turned on the dryer and the acid was injected into his face, leaving him permanently scarred. The first boy was charged with an assault causing actual bodily harm contrary to section 47 offences Against the Person Act 1861

23. The Justices dismissed the charge, but this Court, upon the prosecutor's appeal by way of Case Stated, directed a conviction, holding that on the Justices' findings:

"It was clear that the defendant knew full well that he had created a dangerous situation and the inescapable inference was, that he decided to take the risk of someone using the machine before he could get back and render it harmless or gave no thought to that risk."

26....R -v- Martin (1888) 8QBD 54, a case decided by the Court of Crown Cases Reserved presided over by the Lord Chief Justice, Lord Coleridge. The case is quite a celebrated one. It concerned events at a theatre when the defendant, intending to cause terror in the minds of persons as they left the theatre, put out the gas lights on a staircase which many of those present had to descend and also placed an iron bar across a doorway through which they had to pass in order to leave the theatre. There was a great panic in the theatre as the lights went out and there was a good deal of injury as persons ran down the steps and, no doubt, collided with the iron bar.

27. The defendant in that case was convicted of unlawfully and maliciously inflicting grievous bodily harm upon two victims in particular. The Court on appeal upheld the conviction.

28. Mr Head was not constrained to say that the case was wrongly decided. That would be a large hill to climb, although he rightly pointed out that no counsel appeared on either side of the case. His submission was that the case can be explained upon the basis that the Appellant was rightly convicted of inflicting grievous bodily harm without, however, having committed an assault; that is to say a battery (compare Lord Roskill's reasoning in Wilson). In the ninth edition of their textbook, Criminal Law, Smith & Hogan say this at page 406:

"Most batteries are directly inflicted, as by D's striking P with his fist or an instrument, or by a missile thrown by him, or by spitting upon P. But it is not essential that the violence should have been so directly inflicted. Thus Stephen J and Wills JJ thought there would be a battery where D digs a pit for P to fall into, or, as in Martin, he causes P to rush into an obstruction. It is submitted that it would undoubtedly be a battery to set a dog on another. If D beat O's horse causing it to run down P, this would be battery by D. No doubt the famous civil case of Scott -v- Shephard is equally good for the criminal law.

D throws a squib into a market house. First E and then F flings the squib away in order to save himself from injury. It explodes and injures P. The acts of E and F are not 'fully voluntary' intervening acts which break the chain of causation. This is battery by D. If there is no violence at all, there is no battery; as where D puts harmful matter into a drink which is consumed by P."

Assault occasioning actual bodily is an aggravated form of Common Assault and is contrary to Section 47 Offences Against the Person Act 1861. Assault occasioning actual bodily harm is proved by the fact that actual bodily harm was occasioned (caused) by the assault. The prosecution are not required to prove the defendant intended to cause actual bodily harm or was reckless as to whether such harm would be caused. See: R v Savage; DPP v Parmenter [1991 4 All ER 698: [1991] 2 WLR 408 For intention See: R v Woollin (1999) 1 AC 82 HL For recklessness see R v Cunningham [1957] 2 QB 396

There are two distinct offences covered by the term “assault”

  • An assault is defined as any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence.

A person is guilty of “Assault Occasioning Actual Bodily Harm” if they commit either of these two offences which “Causes Actual Bodily Harm” to the victim; e.g.

  • Loss or breaking of a tooth or teeth,
  • temporary loss of sensory function(may include loss of consciousness),
  • extensive or multiple bruising,
  • displaced or broken nose,
  • minor fractures,
  • minor but not superficial cuts of a sort that probably needs stitches,
  • psychiatric injury which is more than fear distress or panic( will need expert evidence to prove injury).

Where battery results in injury, a choice of charge is available. The Code for Crown Prosecutors recognises that there will be factors, which may properly lead to a decision not to prefer or continue with the gravest possible charge. Thus, although any injury that is more than transient or trifling can be classified as actual bodily harm, the appropriate charge (subject to Para (viii) below) will be contrary to section 39 where injuries amount to no more than the following:

  • Grazes;
  • Scratches;
  • Abrasions;
  • Minor bruising;
  • Swellings;
  • Reddening of the skin;
  • Superficial cuts;
  • A 'black eye.'

Actual bodily harm

In Rex v. Donovan [1934] 2 K.B. 498 Swift J. delivering the judgment of the Court of Criminal Appeal said, at p. 509:

"' . . . bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."


Actual bodily harm includes any physical injury (that is not merely transitory or trifling) and any psychiatric injury that goes beyond mere fear, distress or panic. See: R v Constanza [1997] EWCA Crim 633 (6th March, 1997)

Burstow R v. Ireland, R v. [1997] UKHL 34; [1998] AC 147; [1997] 4 All ER 225; [1997] 3 WLR 534; (1998) 1 Cr App Rep 177 (24th July, 1997)]


T v DPP [2003] EWHC 266 (Admin) It was held that, although there was no discernible physical injury, a momentary loss of consciousness, resulting from being kicked, amounted to bodily harm.


R v Chan-Fook [1994] 2 All ER 552 at 557D it was stated of the words "actual bodily harm": "These are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word 'harm' is a synonym for injury. The word 'actual' indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."

R v Donovan [1934] 2 KB 498: Contains this passage at page 509: "For this purpose we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

Elements of the offence of assault

Actus Reus: Mere apprehension on the part of the victim will suffice. The need not be any actual violence by the defendant, e.g. striking at a person with a stick or fist even if the person striking misses his aim: drawing a weapon such as a knife or throwing a bottle or glass with intent to wound. Unlawful imprisonment is also an assault.

Actus rea

There are three elements to the actus reus of the offence which the prosection must prove:

  • assault
  • causation
  • actual bodily harm.

Section 47 requires proof of a common assault – either by actual force (violence) or fear of the use of force (violence).

Mens rea

R v Savage [1992] UKHL 1 (07 November 1991)

R v Roberts (1972) 56 Cr. App. R. 95. The mens rea required for actual bodily harm is that required for common assault

It is is in fact Roberts' case which provides authority for this proposition. Roberts was tried on an indictment which alleged that he indecently assaulted a young woman. He was acquitted on that charge, but convicted of assault occasioning actual bodily harm to her. The girl's complaint was that while travelling in the defendant's car he sought to make advances towards her and then tried to take her coat off. This was the last straw, and although the car was travelling at some speed, she jumped out and sustained injuries. The defendant denied he had touched the girl. He had had an argument with her and in the course of that argument she suddenly opened the door and jumped out. In his direction to the jury the chairman of Quarter Sessions stated "If you are satisfied that he tried to pull off her coat and as a result she jumped out of the moving car then your verdict is guilty".

It was contended on behalf of the appellant that this direction was wrong since the chairman had failed to tell the jury that they must be satisfied that the appellant foresaw that she might jump out of the car as a result of his touching her, before they could convict. The court rejected that submission. The test, said the court, at p. 102:

"Was it [the action of the victim which resulted in actual bodily harm] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft" in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury".

Accordingly no fault was found (p.103) in the following direction of the chairman to the jury:

"If you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her that he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car."

Thus once the assault was established, the only remaining question was whether the victim's conduct was the natural consequence of that assault. The words "occasioning" raised solely a question of causation, an objective question which does not involve enquiring into the accused's state of mind.

It is clear, following R v VENNA [1975] 3 All ER 788 (CA), that recklessness (as well as intention) is sufficient mens rea for a section 47 OAPA 1861 offence. The trial Judge directed the jury thus:

“….Venna says 'Well, he is not guilty of an assault because it was neither intentional nor reckless. It was a pure accident that he happened to hit the officer', and that is quite right. If you hit somebody accidentally, it cannot be a criminal offence so you have got to ask yourselves, 'Was this deliberate, or was it reckless?' If it was, then he is guilty. To do an act deliberately hardly needs explanation. If you see somebody in front of you and you deliberately kick him on the knee, that is a deliberate act and, no two ways about it, that is an assault but it can equally well be an assault if you are lashing out, knowing that there are people in the neighbourhood or that there are likely to be people in the neighbourhood, ….”

The appellant ….argued that the direction is wrong in law because it states that the mental element of recklessness is enough, when coupled with the actus reus of physical contact, to constitute the battery involved in assault occasioning actual bodily harm. Recklessness, it is argued, is not enough; there must be intention to do the physical act the subject matter of the charge……

Held: We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable. This is such a case. n our judgment the direction was right in law and this ground of appeal fails.

Whilst it is clear that the defendant must intentionally or recklessly assault the victim, the prosecution does not have to prove that the defendant intentionally or recklessly caused the actual bodily harm.

All the prosecution need prove is the mens rea of assault and then that actual bodily harm was, in fact, caused. The defendant need neither intend nor foresee actual bodily harm.

This was confirmed by the House of Lord’s in the joint appeals of R v Savage and R v Parmenter [1991] 3 WLR 914. The victim must apprehend immediate unlawful violence.

Battery

Mens Rea: An intention to apply unlawful force to the body of another or recklessness as to whether such force is applied.

Director of Public Prosecutions v Santa-Bermudez
Director of Public Prosecutions v Santa-Bermudez [2003] EWHC 2908 (Admin)

A police officer, approached the defendant and told him that she intended to carry out a full body search. She asked him to turn out his pockets. He did so and produced some syringes without needles. The officer asked the defendant if he had any needles on him and he replied ‘No’. When the officer searched one of the defendant’s pockets her finger was pierced by a hypodermic needle, at which the defendant smirked. The defendant was convicted by a magistrates’ court of assault occasioning actual bodily harm but appealed successfully to the Crown Court, which ruled that there was no case to answer because an omission to act could not amount to an assault or battery. On an appeal to the Divisional Court by the prosecution, the only question was whether the Crown Court had been correct in law in concluding that there was no evidence that the defendant had committed the actus reus of an assault or battery. On appeal by way of case stated from the Crown Court the Divisional Court Held: where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, the actus reus of an assault is committed. See: Offences of omission

Actus Reus: Occasioning (causes)

A verdict of assault occasioning actual bodily harm may be returned on proof of an assault together with proof of the fact that actual bodily harm was occasioned (caused) by the assault. The prosecution are not obliged to proof that the defendant intended to cause some actual bodily harm or was reckless as to whether harm would be caused. See: R v Savage; R v Parmenter [1991] 4 All ER 698.

Self-help involving the use of force

Burns, R. v Paul (27 April 2010)

Burns, R. v Paul [2010] EWCA Crim 1023 (27 April 2010) This appeal raised a short but not uninteresting point relating to offences of violence and the defences to them. The appellant was convicted of assault occasioning actual bodily harm. The complaint was a prostitute. The appellant drove to the red light area of the town. He got out of his car and spoke to the complainant. A price was agreed and was paid. The appellant said that he wanted to go somewhere safe because he had seen a police car in the vicinity, so they got into his car together. When the complainant got into the car it was understood between them that she would later be returned to the area where the journey had started. He drove for about ten minutes to a more secluded area. The appellant changed his mind about the transaction and asked the complainant to get out of his car. She refused. He removed her from the car with force. On his own account he pulled her out by her armpits. She resisted. After a struggle he removed her from the car. She wanted to get back into it. She asked him not to leave her where they were and struggled with him. He pushed her away. Eventually she stopped struggling. He got back into the car and drove away. After his evidence was completed, it was submitted to the trial judge that the force used by the appellant to remove the complainant from his car, and the subsequent struggle to prevent her from returning back into it was lawful. The judge rejected the submission. In due course he directed the jury that, even on the appellant's account of what had happened

"he was not entitled to use force to eject [the complainant] from that vehicle and to prevent her from getting back into it in the circumstances of this case."

The judge further directed the jury that, provided they were satisfied that the complainant had sustained actual bodily harm at the appellant's hands, as a matter of law,

"the force that [he] used was unlawful...."

The question in this appeal was whether the direction was correct. Held: In these circumstances, the Judge direction to the jury was correct. Appeal is dismissed. Times Law Report Regina v Burns Any right there might be to withdraw licence to a visitor to remain in one’s house and to use reasonable force to eject her therefrom could not be extended to one’s motor vehicle.

In Southwark London Borough v Williams [1971] Ch 734, Edmund Davis LJ described how

".... the law regards with the deepest suspicion any remedies of self-help, and permits these remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -- necessity can very easily become simply a mask for anarchy."

Similarly, in Lloyd v DPP [1992] 1 All ER 984, Nolan LJ said:

"Self-help involving the use of force can only be contemplated where there is no reasonable alternative."

Alternative verdict

Tierney & Anor, R. v (15 October 2009)

Tierney & Anor, R. v [2009] EWCA Crim 2220 (15 October 2009) the appellants were convicted of assault occasioning actual bodily harm. No count of common assault was included in the indictment. Nor was common assault left to the jury as an alternative verdict when it had recently become available. Held: Convictions of assault occasioning actual bodily harm quashed convictions for common assault substituted.

Defences to assaults

Police officers and prosecutors must consider all assaults in the context in which they are allegedly committed. There will be cases in which the surrounding circumstances will be of help in deciding whether to bring criminal proceedings.

Particular care must be taken in dealing with cases of assault where the allegation is made by a “victim” who was, at the time, engaged in criminal activity himself. For instance, a burglar who claims to have been assaulted by the occupies of the premises concerned.

It is lawful for an individual to use reasonable force in the following circumstances:

(a) in self defence; or
(b) to defend another; or
(c) to defend property; or
(d) to prevent crime; or
(e) to lawfully arrest.

Where the use of force in any of these circumstances is reasonable, the assailant” has an absolute defence and charges relating to the assault should not be bought.

In assessing the reasonableness of the force used, two questions should be asked:

(a) was the use of force justified in the circumstances? (i.e. was there a need for any force at all?); and
(b)was the force used excessive in the circumstances?

The courts have indicated that both question are to be answered on the basis of the facts as the accused honestly believed them to be. To that extent it is a subjective test. There is, however, an objective element to the test, as the court must then go on to ask whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.

There can be a fine line, however, between what constitutes reasonable and unreasonable force. When considering whether the force used was reasonable or excessive, it is important to consider the words of Lord Morris in Palmer v R [1971] A.C. 814 which emphasise the difficulties often facing someone confronted by an intruder or defending himself against attack:

“If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...”

Where the police are in doubt whether a charge should be brought in cases such as these, they should seek the advice of the CPS before charging the defendant.

A defendant should be judged on the facts as he believes them to be:

Lord Lane in R v Williams [1987] 3 All ER

Held - If a defendant was labouring under a mistake of fact as to the circumstances when he committed an alleged offence he was to be judged according to his mistaken view of the facts regardless of whether his mistake was reasonable or unreasonable. The reasonableness or otherwise of the defendant's belief was only material to the question of whether the belief was in fact held by the defendant at all.

"A person may use such force as is reasonable in the circumstances as he honestly believes them to be in defence of himself or another":

  • R v Lee A person can rely on a mistake as to fact but cannot rely on a mistake as to law


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