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Criminal | Offences Against The Person

Non-Fatal Offences: ABH Liability

Study Note | A Level

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The offence of assault occasioning actual bodily harm is commonly referred to as ABH.

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....

Section 47 relates to the least serious cases of harm found in the Offences Against the Person Act 1861 and gives rise to the most convictions. It is a triable either way offence. It is a statutory offence, although only a basic definition is contained in legislation.

Actus reus

The actus reus of ABH has three elements.

  • Assault

    This includes both assault and battery. The initial stage is to prove there was either assault or battery.

  • Occasioning

    The causation element, looking at the consequences. A distinction between a section 47 offence and others under the Offences Against the Person Act 1861 is the degree of harm caused. This can be very straightforward, for example if a victim is hit with a stick and this leaves a bruise there is no issue of causation. If no harm occurs a charge can be brought under S39 of the Criminal Justice Act 1988.

  • Actual bodily harm

    This is the key element.

    Miller (1954)

    Defendant's wife had left him and petitioned for divorce. Victim alleged defendant had sexual intercourse with her against her will and she was left in a hysterical and nervous condition as a result of his actions. Defendant was charged with rape and ABH. Defendant relied on the marital consent exception to rape (exemption overturned in R v R [1991] ). He further argued that nervous shock does not amount to a bodily injury necessary for ABH.

    Court found defendant was liable for ABH. Stating: ..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....

    Chan-Fook (1994)

    .. 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.. 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...

    Essentially, the court said harm means injury and actual means the injury should not be so trivial as to be wholly insignificant. The court also said that bodily is not limited to harm to the skin, flesh and bones but also includes organs, brain and nervous system.

    Also, the court noted psychiatric injury does not include emotions or states of mind that in themselves are not an identifiable medical condition. Stating, where there is expert evidence of psychiatric injury, the injury is capable of being ABH.

    Smith (2006)

    Defendant went to the home of his former girlfriend, the victim, and cut off her pony tail. He was guilty of ABH. So this case means the definition of bodily was extended to include a person’s hair.

    T v DPP (2003)

    Defendant chased and kicked the victim, who then lost consciousness for a brief period. Defendant was found guilty of ABH.

    DPP v K (1990)

    Defendant, a 15 year old boy, left a chemistry class with test tube of sulphuric acid and went to the toilet block to conduct some experiments of his own. He heard footsteps, in panic he poured the acid into the hand dryer, intending to deal with it later. Victim used the dryer and the acid permanently scarred his face. Defendant was guilty of ABH, although he had not been directly present at the time the injury was caused.

Mens rea

The mens rea of the offence is intention or recklessness as to assault or battery. There is no need for a separate mens rea for the ABH.

Roberts (1971)

Victim jumped from a car in order to escape from sexual advances. The car was travelling between 20-40mph. Victim was injured from jumping out of the car. Defendant had the mens rea to cause battery, injuries were merely a consequence of this unlawful act and so there was sufficient actus reus and mens rea for a conviction under section 47.

Savage (1991)

Defendant intentionally threw beer at victim, ex girlfriend of her husband. The glass left her hand and cut the victim. The intentional throwing of the glass of beer was sufficient mens rea for the offence of battery. As a result of the act of the defendant, something more serious occuured (both factually and legally). There was sufficient mens rea for the more serious offence.

Parmenter (1992)

Defendant had played with his son in a rough way, causing the child injuries to his arms and legs. Case also included an appeal by defendant in Savage (1991). Both defendants argued they did not have sufficient mens rea for the actual bodily harm caused by the assault.

The cases were heard by the Court of Appeal on the same day and in Parmenter the court found it was necessary for the defendant to be found subjectively reckless both in relation to the battery and the actual bodily harm caused. In contrast to Savage which only required recklessness or intent in relation to the assault element.

House of Lords clarified the law by overruling the reasoning in Parmenter and confirming Savage. This was on the grounds that Roberts (1971) correctly stated the law, that the necessary mens rea for a S47 offence was that for common assault, which had then caused actual bodily harm.

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