Criminal | Offences Against The Person
Non-Fatal Offences: ABH Liability
Revision Note | A Level
Download
bitsoflaw.orgbits of law
Introduction
- offence of assault occasioning actual bodily harm, referred to as ABH
- offence under S47 of Offences Against the Person Act 1861 (OAPA 1861)
Offences Against the Person Act 1861
- S47:
.. Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable to imprisonment for any term not exceeding five years...
- S47:
- covers least serious cases of harm found in OAPA 1861
- gives rise to the most convictions
- triable either way offence
- statutory offence, although only a basic definition contained in legislation
Actus reus
- three elements to actus reus of ABH: assault, occasioning, actual bodily harm
Assault
- initial stage is to prove either assault or battery
Occasioning
- causation element, looking at the consequences
- distinction between a S47 offence and others OAPA 1861 is degree of harm
- if no harm occurs a charge cannot be brought under S47
Actual bodily harm
- the key element
- what constitutes actual bodily harm has been developed through case law
Miller (1954)
- D's wife, V, petitioned for divorce, V alleged D had sexual intercourse with her against her will
- V suffered nervous shock, D charged with rape and ABH
- D relied on the marital consent exception to rape (exemption overturned in R v R [1991])
- D argued that nervous shock does not amount to a bodily injury necessary for ABH
- D found guilty of ABH
.. actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim.. [providing it is more than] transient and trifiling...
- guidelines were set out in Chan-Fook (1994)
Chan-Fook (1994)
.. ‘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.. The body of the victim includes all parts of his body, including his organs, his nervous system and brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties...
harm
meansinjury
-
actual
means the injury should not be so trivial as to bewholly insignificant
bodily
is not limited to harm to the skin, flesh and bones but also includes organs, brain and nervous system- psychiatric injury does not include emotions or states of mind that are not an identifiable medical condition
- if expert evidence of psychiatric injury, the injury is capable of being ABH
bodily
includes hairSmith (2006)
- D cut off V’s pony tail
- D guilty of ABH
- ABH can include loss of consciousness
T v DPP (2003)
- D chased and kicked V, V lost consciousness for a brief period
- D guilty of ABH
- ABH may be caused indirectly
DPP v K (1990)
- D, left a chemistry class with test tube of acid, went to toilet to conduct experiments of his own
- D was disturbed and in panic poured the acid into the hand dryer, intending to deal with it later, V used the dryer and the acid permanently scarred his face
- D guilty of ABH, although not been directly present at the time the injury was caused
Mens rea
- mens rea is intention or recklessness as to assault or battery
- no need for a separate mens rea for the ABH
Roberts (1971)
- D made sexual advances on V, lead to V jumping from a moving car, V was injured
- D had the mens rea for assualt, injuries were merely a consequence of this unlawful act, so sufficient actus reus and mens rea for a conviction under S47
Savage (1991)
- D intentionally threw beer V, glass left D’s hand and cut V
- intentional throwing of the glass of beer was sufficient mens rea for battery
- as a result of D’s act something more serious, factually and legally, occurred there is sufficient mens rea for the more serious offence
Parmenter (1992)
- a conjoined appeal
- D1 played with V, his son, roughly, causing V injuries to his arms and legs
- D2 an appeal by D in Savage (1991)
- Ds argued they did not have sufficient mens rea for the actual bodily harm caused by the assault, originally cases were heard by the Court of Appeal on the same day
- in Parmenter the court found it was necessary for D1 to be found subjectively reckless both in relation to the battery and the actual bodily harm caused
- in Savage found D2 required recklessness or intent in relation to the assault element
- House of Lords overruled reasoning in Parmenter and confirmed Savage
- on the grounds that Roberts (1971) correctly stated the law, that necessary mens rea for S47 offence was that for common assault, which had then caused actual bodily harm