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Assault occasioning actual bodily harm (often abbreviated to Assault O.A.B.H. or simply ABH) is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong^{[citation needed]} and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence. It compasses those assaults which result in substantial injuries, typically requiring a degree of medical treatment of the victim.

[edit] United Kingdom

[edit] The offence

In England and Wales, and in Northern Ireland, the offence is created by section 47 of the Offences against the Person Act 1861:

“

47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable ... to be kept in penal servitude ...

”

The text of this section is slightly different in Northern Ireland.

[edit] Assault

For there to be an assault, the victim must either "apprehend" the application of physical force, i.e. anticipate that a battery is about to occur (the offence variously described as assault, common assault or psychic assault), or experience a battery without warning (which constitutes that offence).

[edit] Occasioning

This is usually taken to mean the same as "causing" i.e. it includes both acts and omissions. In R v Roberts (1971) 56 Cr. App. R. 95 while giving a lift in his car, late at night to a girl, the defendant made unwanted sexual advances. She feared that he intended to rape her so, even though the car was moving, she opened the door, jumped out, and suffered grazes and concussion. Stephenson LJ. stated that the test for causation was whether the result was a reasonably foreseeable consequence of what the defendant was saying or doing. In R v Savage; DPP v Parmenter(1991) 4 All ER 698, Savage threw beer over the victim and, in the struggle, the glass broke and cut the victim. It was held that section 47 did not require proof of recklessness in relation to the 'occasioning'. The throwing of the beer was an assault, and that "assault" had occasioned the actual bodily harm which occurred in the continuing struggle. Parmenter injured his baby by tossing him about too roughly. Even though the baby was too young to apprehend the physical contact, there was voluntary contact that caused injury, so Parmenter was liable under section 47 because the injury resulted from his intention to play with his son.

[edit] Actual bodily harm

Main article: Bodily harm

Bodily harm and the distinction between bodily harm and actual bodily harm

In Rex v. Donovan [1934] KB 498 at p.509, 25 Cr. App. R. 1, CCA, Swift J., in delivering the Judgement of the Court of Appeal said:

“

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.

”

This passage was cited and approved in R v. Brown (Anthony) [1994] 1 AC 212, by Lord Templeman (at p. 230) and Lord Jauncey (at p.242).

In R v. Miller [1954] 2 All ER 529, [1954] 2 QB 282, Lynskey J. said:

“

According to Archbold's Criminal Pleading, Evidence and Practice, 32nd ed, p 959:

"Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor..."

”

In R v. Chan-Fook [1994] 2 All ER at 557D, Hobhouse LJ. said of the expression "actual bodily harm", in contending that it should be given its ordinary meaning:

“

These are three words of the English language that receive 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.

”

In R v. Morris (Clarence Barrington) [1998] Cr. App. R. 386 at 393, Potter LJ., in delivering the judgement of the Court of Appeal said (the citations that he quotes from the textbook are omitted):

“

What constitutes "actual bodily harm" for the purposes of section 47 of the 1861 Act is succinctly and accurately set out in Archbold (1997 ed.) at para 19-197:

"Bodily harm has it ordinary meaning and includes any hurt (our emphasis) or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling ...

Actual bodily harm is capable of including psychiatric injury but it does not include mere emotion, such as fear, distress or panic ...

”

In DPP v. Smith [2006] 2 Cr.App.R. 2, Judge P. said, at Para 17:

“

"Actual", as defined in the authorities, means that the bodily harm must not be so trivial or trifling as to be effectively without significance.

”

The concept of actual bodily harm was considered by the Divisional Court in DPP v Smith (Michael Ross) (2006) EWHC 94 (Admin). The defendant held down his former girlfriend and cut off her ponytail with kitchen scissors a few weeks before her 21st birthday. The Magistrates acquitted him on the ground that, although there was undoubtedly an assault, it had not caused actual bodily harm, since there was no bruising or bleeding, and no evidence of any psychological or psychiatric harm. The victim’s distress did not amount to bodily harm. The Divisional Court allowed an appeal by the DPP, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done. Judge P said:

“

In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim.

”

It has long been accepted that actual bodily harm includes any hurt or injury that interferes with the health or comfort of the victim, and which is more than transient or trifling. To damage an important physical aspect of a person’s bodily integrity must amount to actual bodily harm, even if the element damaged is dead skin or tissue. As Creswell J. commented in his short concurring judgment:

“

To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm.

”

[edit] Non-physical injury

Non-physical or psychiatric injury can be considered actual bodily harm, although there must be medical evidence of the injury. The original legislative intent was probably restricted to physical injury because Parliament required "bodily" rather than "mental" or "emotional" harm. Hence, in R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. The court was reluctant to consider this an injury within the meaning of the Act. But, in modern times, R v Chan Fook (1994) 1 WLR 689 did not accept hysteria or other very strong emotions as an injury when the defendant locked up a suspected thief who became very upset and tried to escape. This was followed by the Court of Appeal in R v Constanza (1997) 2 Cr. App. R. 492, and the House of Lords which confirmed the principle in R v Burstow, R v Ireland (1997) AC 147. These were a pair of cases on harassment situations before the Protection from the Harassment Act 1997 came into force. During a three month period, Ireland, who had a substantial record of making offensive telephone calls to women, harassed three women by making repeated silent or heavy breathing telephone calls to them at night. This caused his victims to suffer psychiatric illness. Similarly, Burstow could not accept the decision of a woman to terminate a relationship, so he harassed her over an eight month period by making silent and abusive telephone calls, distributed offensive cards in the street where she lived, appeared unnecessarily at her home and place of work, took surreptitious photographs of the victim and her family, and sent her a menacing letter. The victim was fearful of personal violence and was diagnosed as suffering from a severe depressive illness. The best medical practice today accepts a link between the body and psychiatric injury, so the words "bodily harm" in sections 20 and 47 were capable of covering recognised psychiatric illnesses, such as an anxiety or a depressive disorder, which affect the central nervous system of the body. However, to qualify, those neuroses must be more than simple states of fear, or problems in coping with everyday life, which do not amount to psychiatric illnesses.

[edit] CPS charging standards

The Crown Prosecution Service service has said that, by way of example, it considers the following injuries to be actual bodily harm and to be sufficiently serious that they could not be adequately reflected by a charge of common assault and ought normally to be prosecuted under section 47:

The loss or breaking of a tooth or teeth
Temporary loss of sensory function, including loss of consciousness
Extensive or multiple bruising
A displaced broken nose
Minor fractures of bones
Minor (but not superficial) cuts requiring medical treatment
A recognised psychiatric disorder

Causing any of these injuries (by assault or battery) would constitute the actus reus of assault occasioning actual bodily harm. The CPS has advised its prosecutors that grazes, minor bruising, swelling, superficial cuts or a black eye should normally be prosecuted as common assault.

[edit] Mens rea

The mens rea of this offence is identical to that of assault or battery (depending on the mode by which the offence is committed). Accordingly, it does not correspond with the actus reus. Academic writers have termed this feature of the offence half mens rea^[1] and constructive liability.{^[2]}

The mens rea for this crime may be one of recklessness rather than intention as to the commission of an assault or battery, and it is considered to be a crime of basic intent.

The court in DPP v Parmenter ruled that, for this offence,

“

...it is not necessary to show that Parmenter intended bodily harm; if he intended or was reckless as to the assault, and the actual bodily harm was a reasonably foreseeable result (whether or not it was or should have been foreseen by Parmenter himself), that is sufficient.

”

[edit] Mode of trial

In England and Wales, assault occasioning actual bodily harm is triable either way.^[3]

[edit] Sentence

In England and Wales, a person guilty of assault occasioning actual bodily harm is liable, on conviction on indictment, to imprisonment for a term not exceeding five years,^[4] or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum, or to both.^[5]

See Crown Prosecution Service Sentencing Manual for case law on sentencing. Relevant cases are:

R v. Smith (1988) 10 Cr.App.R. (S.) 434
R v. Davies (1990) 12 Cr.App.R. (S.) 308
R v. Hayes (1992) 13 Cr.App.R. (S.) 722
R v. Charlton (1995) 16 Cr.App.R. (S.) 703
R v. Sharpe [1999] EWCA Crim 964 (13 April 1999), [2000] 1 Cr.App.R. (S.) 1
R v. Byrne [1999] EWCA Crim 1892 (29 June 1999), [2000] 1 Cr.App.R. (S.) 282
R v. McNally [2000] 1 Cr.App.R. (S.) 535

It is inappropriate for the court to sentence an offender on the basis of racial aggravation where he has been convicted of this offence, but not the racially aggravated offence: R v. McGilliviray; R v. Kentsch.

In Northern Ireland, a person guilty of assault occasioning actual bodily harm is liable, on conviction on indictment, to imprisonment for a term not exceeding seven years,^[6] or on summary conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the prescribed sum, or to both.^[7]

[edit] Racially or religiously aggravated offence

In England and Wales, section 29(1)(b) of the Crime and Disorder Act 1998 (c.37) creates the distinct offence of racially or religiously aggravated assault occasioning actual bodily harm.

This law was changed in 2003 and can now carry a sentence of up to life inprisonment.^{[citation needed]}

[edit] Australia

Australian Capital Territory

The offence is created by section 24(1) of the Crimes Act 1900.[5] [6]

New South Wales

The offence is created by section 59(1) of the Crimes Act 1900 (a different statute of the same name).[7]

South Australia

Assault occasioning actual bodily harm was formerly an offence under section 40 of the Criminal Law Consolidation Act 1935, but has been abolished and replaced with a similar offence (see below).[8]

[edit] Pacific Islands

Solomon Islands

The offence is created by section 245 of the Penal Code (Ch.26). [9]

[edit] Republic of Ireland

The common law offence of assault occasioning actual bodily harm was abolished,^[8] and section 47 of the Offences against the Person Act 1861 was repealed,^[9] on a date three months after 19 May 1997.^[10]

[edit] Derivative offences

In a number of jurisdictions this offence has been replaced by an offence which is very similar.

Canada

Section 267(b) of the Canadian Criminal Code creates the offence of assault causing bodily harm.

Republic of Ireland

Section 3 of the Non-Fatal Offences Against the Person Act 1997 (No.26) creates the offence of assault causing harm.