Non-Fatal OAP - s47 ABH PDF

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Lecture 30

Semester 1 Criminal Law Non-Fatal OAP: s47 Actual Bodily Harm

Assault occasioning actual bodily harm D commits an assault or battery that causes V to suffer actual bodily harm (ABH).  Contained in s47 Offences Against the Person Act 1861.  Result crime: D’s conduct results in. V either apprehending immediate physical contact or experience physical contact which subsequently also results in actual bodily harm (ABH).

Assault or battery (base offence)

V suffers actual bodily harm (ABH)

Liability for s47 offence

Actus reus of s47 ABH D must commit the actus reus of assault or battery which causes V to suffer ABH.  Most cases will involve a battery that occasions ABH. However, a base offence of assault is also possible. o e.g. Where D causes V to apprehend imminent violence and V hurts herself when attempting to escape (ABH). (Roberts [1972])  The assault and battery must occasion ABH. o “Occasion” means “cause” (Roberts) o D’s conduct must have caused the initial result element of the assault or battery followed by ABH. Causation must be established twice. o Usual rules of factual and legal causation apply.  Actual bodily harm o Any hurt or injury calculated to interfere with the health or comfort of V. (Miller [1954]) o ABH can include psychiatric harm, but does not extend to mere emotions like fear, distress, panic or humiliation. (Chan-Fook [1994])  Confirmed in Ireland and Burstow but must be an identified or recognised psychiatric condition.  D must have caused that psychiatric harm. (R v Morris [1998])  Psychological injuries do not amount to recognised medical conditions and are distinct from psychiatric injury. o ABH does not have to be serious or permanent but must be more than trifling or transient. (T v DPP [2003])  Pain or discomfort, mere bruising, grazing and the causing of tenderness can amount to ABH.  Cuts and grazes can amount to ABH. (Burns [2010])  A temporary loss of consciousness can amount to ABH. o ABH can include the cutting of hair, but only substantial portions. (DPP v Smith [2006])

Lecture 30

R v Roberts (1972) 56 Cr App R 95

Semester 1 Facts: D made unwanted sexual advances towards V when driving her in his car. D tried to take off V’s coat (a battery), and this led to V jumping out of the moving car and sustaining grazes and concussion (ABH). D was charged with a section 47 offence. D claimed that he did not foresee the risk that V would jump out of the car, and that he should therefore avoid liability. Held: Liability does not require D to foresee the risk that his acts will cause ABH. Facts: D had been the husband of V who, at the time of the alleged offence, had filed a petition for divorce on grounds of adultery. During this period, D met with V and had intercourse with her against her will. This caused V to suffer significant mental distress. D was charged with both rape and, in the alternative, s47 ABH.

R v Miller [1954] 2 QB 282

R v Chan-Fook [1994] 1 WLR 689

R v Ireland and Burstow [1997] UKHL 34

Held: The implied consent of a wife to have intercourse with her husband was not revoked. Nevertheless, a husband was not entitled to use force or violence for the purposes of exercising his right to intercourse; to do so would amount to an assault. As a “hysterical and nervous condition” is a recognised form of bodily harm, such an assault would constitute an offence under s47 for ABH. Facts: D accused V, a lodger, of the theft of his fiancé’s engagement ring. D locked V in a second-floor bedroom. V tried to escape and suffered quite serious injuries. D was convicted under s47 for ABH. The harm identified by the prosecution was the psychological suffering of the victim, rather than his physical injuries, although no medical evidence was produced. Held: To amount to actual bodily harm, the injury need not be permanent but should not be so trivial as to be wholly insignificant. Feelings of fear and panic are emotions rather than an injury and without medical evidence to support recognised psychiatric condition a conviction for ABH could not stand. Facts: The D and V were engaged in a short romantic relationship, which the victim ended. Unhappy with this decision, D proceeded to harass V over several months, making repeated phone calls, delivering hate mail, appearing unexpectedly, harassing her neighbours, causing her to sustain psychiatric injury (severe depression). Held: Psychiatric injury did suffice to be considered bodily harm, building on the obiter dicta in Chan Fook (1994) in which it was determined that psychiatric injury could be classified as ABH or GBH. The term “inflict” did not require the application of physical force, but instead could be understood as simply meaning the

Lecture 30

Semester 1 D’s actions had been causative of the injury.

Mens rea of s47 ABH The only mens rea requirements for s47 ABH are those relating to the base offence of assault or battery (intention or recklessness as to committing assault or battery).  There is no additional mens rea required for the result of ABH. (Savage & Parmenter [1992]) CPS charging standards for s47 ABH Injuries involving an assault occasioning actual bodily harm include:  Loss or breaking of tooth or teeth;  Temporary loss of sensory functions, which may include loss of consciousness.  Extensive or multiple bruising;  Displaced broken nose;  Minor fractures;  Minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e.g. Stitches);  Psychiatric injury that is more than mere emotions....