s.47 Assault occasioning actual bodily harm

This offence is an assault/battery that has caused an injury (psychological or physical). It is an offence under s.47 Offences Against the Person Act 1861 which states:

“Whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable...to imprisonment for five years.”

It is a basic intent triable either way offence and although an injury must be caused, this offence requires the lowest level of injury. The OAPA 1861 does not provide a definition of ‘assault’ or ‘actual bodily harm’, nor is there any reference to the MR required. It is therefore necessary to look at case law for the explanations.

Despite s.47 OAPA 1861 using the term ‘assault’, this offence can actually be committed with either an assault or battery. It is therefore necessary to prove the AR/MR of assault/battery and then prove that this occasioned (caused) actual bodily harm (assault: psychological harm / battery: physical harm.)

This termhas been widely interpreted:

R v Miller [1954]

Ds wife had petitioned for divorce but before the hearing D had sexual intercourse with V against her will. He had thrown her to the ground on 3 occasions and she was in a hysterical and nervous condition. He was charged with **** and s.47 ABH. D was able to rely on the marital consent exception to the **** charge (now overruled by R v R [1991]) but was convicted of the s.47 ABH charge.

Lynsky J: “Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim.”

R v Chan-Fook [1994]

CA: “The word ‘actual’ indicates that the injury (although doesn’t need to be permanent) should not be so trivial as to be wholly insignificant.” (For facts, see below.)

R v Donovan [1934]

The injury has to be “more than merely transient and trifling.”

Widely interpreted term.

R (T) v DPP [2003]

D and others chased V. V fell to the ground, saw D coming towards him, and so covered his head with his arms before being kicked. He momentarily lost consciousness and remembered nothing until being woken by a police officer. D tried to rely on Donovan arguing that injury was only momentary unconsciousness and thus transient harm and not sufficient. This was rejected. Donovan merely required that the injury must not be both “trifling and transient”; on these facts the injury was indeed transient, but was not trifling. D was convicted of s.47 ABH.

• Section 47 ABH can be charged where there is any injury, including:
•  bruising
•  grazes and scratches,
•  cutting (substantial amount of) Vs hair

This means therefore that physical pain is not an essential ingredient.                              D cut off his ex-girlfriend’s ponytail with kitchen scissors two weeks before her 21st birthday. This was obviously done without her consent and he was charged with s.47 ABH. D argued he had not caused ABH as the hair is dead tissue and he had not caused any bruising, bleeding or cutting of the skin and although V was clearly distressed by what had happened she had not suffered any psychological harm. 

The magistrates agreed with D and found no case to answer to and acquitted. However, the DPP appealed and the Queen’s Bench Divisional Court held that cutting a substantial amount of hair could be ABH.                                                                                          Creswell J commented: “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.” Therefore, cutting a small amount of hair probably would not amount to ABH, but it would be battery.

In Miller [1954] the courts accepted that ABH included not just physical harm but psychological injury. In later cases, courts made it clear that psychological injury will only amount to ABH if it is a clinically recognised condition and thus more than just an ‘emotional response’.

D aggressively questioned a man he suspected of stealing his fiancée’s jewellery. He then dragged him upstairs and locked him in a room. V, frightened of what D would do on his return, tried to escape through the window, but injured himself when he fell to the ground. D was charged with s.47 ABH but denied striking V. The trial judge said it was sufficient if V suffered a hysterical or nervous condition at the time and so D was convicted.

CA: Appeal allowed and Hobhouse LJ said: “The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties....The phrase ‘actual bodily harm’ is capable of including psychiatric injury. But it does not include mere emotions such as fear, distress or panic nor does it include states of mind that are not themselves evidence of some identifiable clinical condition.”

D was therefore not guilty of s.47 ABH as Vs response was not a clinical condition.

Chan-Fook direction was approved in R v Burstow [1997] and again considered by CA in R Dhaliwal:                                                                                                                V had committed suicide by hanging herself in an outhouse of her home following a long period of domestic abuse. On the evening of her suicide, D (her husband) had struck her on the forehead, causing a cut. The police discovered evidence that she had endured psychological and physical abuse over a number of years by her husband and thus he was prosecuted for unlawful and dangerous act manslaughter and inflicting s.20 GBH (based on psychological harm).  At first instance, the court held that no reasonable jury could convict him of either offence and ruled the case should not proceed to trial. The prosecution appealed.

CA upheld trial judge’s ruling and said that for there to be a s.20 offence, V must have suffered harm, which could include a medically recognised psychiatric illness, but from the evidence available, while V had clearly suffered psychological harm, a jury could not be satisfied beyond reasonable doubt that she had suffered a clinically recognised psychiatric injury and therefore the unlawful act manslaughter charge collapsed.

In reaching this decision, the CA took a very narrow interpretation of Chan Fook. None of the medical experts was of the opinion that V was suffering from ‘mere emotion’; each recorded some form of psychological condition. However, tangible evidence was lacking.

ABH has been applied in stalking cases, but where the stalking consists of a course of conduct over a period of time it can be difficult to identify the actual assault that caused the ABH. Nonetheless, courts are still prepared to find that such actions are actionable.

R v Cox (Paul) [1998]

Ds relationship with his girlfriend had ended. He started to make repeated telephone calls, some of which were silent, he prowled outside her flat, put through the letterbox a torn piece of a brochure showing details of a holiday she had booked, and, shortly before she was due to depart, he telephoned her to say that she was going to her death and he could smell burning. V began to suffer from severe headaches and stress. D was convicted of ABH and this was upheld by the CA even though it was difficult to identify which act had constituted the assault.

s.47 OAPA 1861 makes no reference to the MR, but as this offence is based upon an assault/battery; courts have held that the MR for ABH is the same. No additional MR for the additional injury is required.

Therefore, D must intend or be subjectively reckless as to whether the V apprehends or is subjected to unlawful force. There is no need for D to intend or be reckless, If ABH injury has resulted, it is this consequence that has escalated the charge to s.47, not Ds mens rea.

R v Roberts [1971]                                                                                                        D gave V a lift in his car late at night. During the journey he made sexual advances towards V, including touching and trying to take her coat off. Frightened that D was going to sexually assault her, V jumped from the moving car and injured herself on the ground.

D was convicted of ABH as he had performed the AR of s.47 ABH by unlawfully touching her clothes (battery). D tried to argue that he lacked MR because he had not intended any injury or realised there was a risk of injury as a result of his ‘advances’. This argument was rejected. D had intended the battery and this was therefore sufficient MR for the higher charge of s.47. There was no need for any extra MR regarding the actual injury.

R V Roberts 1971 decision confirmed by HL in R v Savage [1991] HL

D went to her local pub, spotted her husband’s new girlfriend, went up to her table and said “Nice to meet you, darling” and threw beer over her. In doing so the glass accidentally slipped from her hand which broke and cut Vs wrist.

D said she only intended to throw the beer (battery), and had not intended for her to be injured, nor realised that there was a risk of injury, therefore arguing she lacked MR for ABH. This argument was rejected as she had intended the unlawful force (so had MR for battery).

Lord Ackner: “The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned 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 such harm would be caused.”

When Crown Prosecutors decide on which level of offence to charge, they refer to the CHARGING STANDARDS document which sets out matters for consideration. This is not followed strictly, it is a GUIDE and Prosecutors sometimes choose a lower level of offence than might be strictly available under the law. For example, in deciding between common assault or s.47 ABH: “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. This, although any injury that is more than transient or trifling can be classified as actual bodily harm, the appropriate charge...will be contrary to section 39 [common assault] where the injuries amount to no more than the following:

•  Scratches
•  Abrasions
•  Minor bruising
•  Swellings
•  Reddening of the skin
•  A ‘black eye’

AGGRAVATING FEATURES:

It is recognised however, that there are features which make an assault more serious and thus it is appropriate to charge the higher level of offence. The following features make it more appropriate to charge s.47 ABH even when the injury is from the above list:

o Nature of the assault – such as the use of a weapon, biting, or kicking a V that is on the floor.

o Vulnerability of the V – child/elderly/disabled.

ACTUAL BODILY HARM:

Guidelines state the following injuries should normally be prosecuted as s.47 OAPA 1861:

o Loss or breaking of tooth or teeth;

o Temporary loss of sensory functions which may include loss of consciousness;

o Extensive or multiple bruising;

o Displaced broken nose;

o Minor fractures

o Minor, but not superficial, cuts of a sort probably requiring medical treatment (e.g. stitches.)

o Psychiatric injury that is more than mere emotions such as fear, distress or panic.

GBH

Guidelines stress that GBH means serious bodily harm and it is for the jury to decide whether the harm is serious. However, examples include:

o Injury resulting in permanent disability or permanent loss of sensory function;

o Injury which results in more than minor permanent, visible disfigurement, broken or displaced limbs or bones, including fractured skull;

o Compound fractures, broken cheekbone, jaw, ribs etc;

o Injuries which cause substantial loss of blood, usually necessitating a transfusion;

o Injuries resulting in lengthy treatment or incapacity;

o Psychiatric injury (backed up by expert evidence).