Offences against the person - Assault occasioning actual bodily harm (s.47 Offences Against the Person Act 1861)

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Overview

Assault occasioning actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861 is a fundamental aspect of non-fatal offences in English criminal law. This offence bridges the gap between common assault and more severe forms of harm, making it essential for SQE1 FLK2 exam candidates. Familiarity with ABH is important for legal practitioners, as it frequently appears in both criminal proceedings and exam scenarios. This article offers a thorough analysis of s.47 offences, exploring legal principles, noteworthy case law, and practical applications to equip you for exam success and future legal practice.

1. Statutory Framework and Elements of the Offence

Section 47 of the Offences Against the Person Act 1861 states:

"Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable... to be kept in penal servitude."

This concise statutory language hides the detailed nature of the offence, which comprises two main elements:

  1. An assault or battery
  2. Resulting in actual bodily harm

Actus Reus: The Physical Element

The actus reus of ABH includes two components:

  1. Assault or Battery: The offence requires either an assault (causing apprehension of immediate unlawful force) or battery (application of unlawful force).

  2. Actual Bodily Harm: This harm must be more than trivial but need not be permanent or dangerous. It includes both physical and psychological harm.

Physical Harm

Physical harm in the context of ABH typically involves injuries that exceed transient or trifling. Examples include:

  • Bruises or scratches that last beyond a few days
  • Cuts needing medical attention
  • Temporary loss of consciousness

In R v. Miller [1954] 2 QB 282, the court held that bruising or a graze could constitute ABH, establishing a relatively low threshold for the required physical harm.

Psychological Harm

Importantly, ABH is not limited to physical injuries. In R v. Chan-Fook [1994] 1 WLR 689, the Court of Appeal confirmed that psychological harm can constitute ABH if it amounts to a recognisable psychiatric illness. This principle was further developed in R v. Ireland; R v. Burstow [1998] AC 147, where the House of Lords held that psychiatric injury could be caused by words alone, without physical contact.

Mens Rea: The Mental Element

The mens rea for ABH is intention or recklessness as to the assault or battery, not the resulting harm. This principle was established in R v. Savage; DPP v. Parmenter [1992] 1 AC 699, where the House of Lords held:

  1. The defendant must intend or be reckless regarding the assault or battery.
  2. It is not necessary for the defendant to foresee or intend the level of harm that actually occurs.

This interpretation broadens the scope of the offence, allowing for conviction even where the resulting harm was unforeseen or unintended.

2. Key Case Law and Practical Applications

R v. Savage; DPP v. Parmenter [1992] 1 AC 699

This case clarified the approach to mens rea in ABH cases.

Facts: Savage threw beer over the victim, but the glass slipped and caused a cut. In the other case, Parmenter roughly handled his baby, causing injury.

Holding: The House of Lords established that:

  • For ABH, the defendant need only intend or be reckless regarding the assault or battery.
  • Foresight of the specific harm caused is not required.

Application: This ruling lowered the threshold for ABH convictions, as prosecutors need only prove intent or recklessness for the initial act, not the resulting harm.

R v. Roberts [1971] EWCA Crim 4

This case illustrates the principle of "take your victim as you find them" in the context of ABH.

Facts: The defendant made sexual advances towards a woman in a car. She jumped out of the moving vehicle, sustaining injuries.

Holding: The Court of Appeal upheld the conviction, stating that if the victim's reaction was reasonably foreseeable, the defendant was liable for the resulting harm.

Application: This case demonstrates how indirect causation can still result in ABH liability, provided the victim's reaction is within the realm of reasonable foreseeability.

3. Defenses and Mitigating Factors

Consent

Consent can be a valid defense to ABH in certain circumstances, but its application is limited by public policy considerations.

In R v. Brown [1993] UKHL 19, the House of Lords held that consent was not a valid defense to ABH inflicted during sadomasochistic practices. However, in R v. Wilson [1996] EWCA Crim 1827, the Court of Appeal found that consent could be a valid defense where a husband branded his wife at her request.

The key distinction lies in the context and nature of the activity:

  • Consent is generally accepted for legitimate sporting activities or medical procedures.
  • It is not accepted for activities deemed contrary to public policy or causing serious harm.

Self-Defense

Self-defense can be a complete defense to ABH if the force used was reasonable in the circumstances. The test for reasonableness is subjective as to the circumstances as the defendant believed them to be, but objective as to the force used.

In R v. Keane [2010] EWCA Crim 2514, the Court of Appeal emphasized that the jury should consider:

  1. Whether the defendant genuinely believed force was necessary for self-defense.
  2. Whether the force used was reasonable based on the circumstances as the defendant believed them to be.

4. Prosecution Considerations and Charging Decisions

The Crown Prosecution Service (CPS) must consider several factors when deciding whether to charge ABH or a different offence:

  1. Severity of Harm: If the harm is minor, common assault might be more appropriate. If severe, GBH charges under sections 18 or 20 of the OAPA 1861 may be considered.

  2. Charging Standards: The CPS follows specific guidelines that help determine the appropriate charge based on the nature and extent of injuries.

  3. Evidence Quality: The strength and reliability of evidence, including medical reports and witness statements, influence the charging decision.

  4. Public Interest: Factors such as the defendant's criminal history and the impact on the victim are considered.

  5. Mode of Trial: ABH is triable either way, allowing for consideration of the most suitable venue based on case complexity and potential sentencing.

5. Practical Examples and Exam Application

To better understand s.47 offences, consider these practical scenarios:

Example 1: During a heated argument, Alice pushes Bob, causing him to fall and break his arm. The prosecution would need to establish that the push was intentional or reckless, and that the broken arm constitutes actual bodily harm. Alice could potentially raise the defense of self-defense if she felt threatened by Bob's actions.

Example 2: Charlie and David are playing a rough game of rugby. Charlie tackles David, causing him to sustain a serious concussion. This scenario requires careful consideration of the consent element, as David likely consented to the risk of injury during the game. However, if the tackle was considered reckless or outside the rules of the game, a s.47 offence could still be established.

Exam Application: When addressing ABH questions in the SQE1 FLK2 exam, consider the following approach:

  1. Identify the actus reus elements: assault/battery and resulting harm.
  2. Analyze the mens rea: intention or recklessness regarding the initial act.
  3. Assess any potential defenses, particularly consent or self-defense.
  4. Consider public policy considerations and relevant case law.
  5. Evaluate the strength of the prosecution's case and potential charging decisions.

Conclusion

A thorough understanding of ABH under section 47 of the Offences Against the Person Act 1861 is essential for SQE1 FLK2 exam success and future legal practice. Key points to remember include:

  • The low threshold for "actual bodily harm"
  • The inclusion of psychological harm in addition to physical injury