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

Overview

Assault occasioning actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861 is a substantive offence within English criminal law. This statutory provision bridges the gap between lesser common assaults and more serious offences involving grievous bodily harm. A thorough understanding of the principles central to ABH is essential for candidates preparing for the SQE1 FLK2 exam. The significance of ABH in criminal jurisprudence highlights its relevance within legal practice. This analysis covers the challenges of s.47, examining the legal framework, key case law, and practical applications.

1. Statutory Framework and Elements of the Offence

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

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

Beneath this succinct statutory language lie two primary elements of the offence:

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

Actus Reus: The Physical Element

The actus reus of ABH involves both an assault or battery and the resulting actual bodily harm. To elaborate:

1. Assault or Battery: The initial act involves either an assault, instilling in the victim a fear of immediate unlawful force, or a battery, constituting the application of unlawful force.

2. Actual Bodily Harm: The harm must be more than trivial but need not be permanent or life-threatening. It includes both physical injuries and recognized psychiatric conditions.

Physical Harm

Physical injuries qualifying as ABH include those that are more than superficial:

• Persistent bruises or scratches
• Minor fractures or dislocations
• Temporary loss of consciousness

In R v. Miller [1954] 2 QB 282, it was established that any hurt or injury calculated to interfere with the health or comfort of the victim amounts to actual bodily harm, provided it is more than transient and trifling.

Psychological Harm

Importantly, ABH is not limited to physical injuries. It also encompasses psychological harm, provided it constitutes a clinical condition. In R v. Chan-Fook [1994] 1 WLR 689, the Court of Appeal held that actual bodily harm includes psychiatric injury but does not extend to mere emotions such as fear or panic. This interpretation acknowledges that psychological injuries can be as significant as physical ones.

Mens Rea: The Mental Element

The mens rea required for ABH pertains to the intention or recklessness regarding the assault or battery itself. Notably, there is no requirement for the defendant to have intended or foreseen the actual bodily harm that resulted.

In R v. Savage; DPP v. Parmenter [1992] 1 AC 699, the House of Lords clarified that:

1. The defendant must have intended or been reckless as to the assault or battery.

2. It is not necessary for the defendant to foresee or intend the actual harm caused.

This principle broadens the reach of s.47, allowing for convictions even when the resulting harm was neither intended nor foreseen by the defendant.

2. Key Case Law and Practical Applications

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

This landmark case clarifies the mens rea for ABH.

Facts: In Savage, the defendant intended to throw beer over the victim but inadvertently let go of the glass, causing a cut to the victim. In Parmenter, the defendant injured his baby through rough handling, not realizing the risk of harm.

Holding: The House of Lords held that for s.47 offences, it is sufficient that the defendant had the mens rea for the initial assault or battery; there is no requirement to prove that the defendant intended or foresaw the actual bodily harm that occurred.

Application: This decision illustrates that liability under s.47 can arise even when the harm was accidental, provided the initial assault or battery was intentional or reckless.

R v. Roberts [1971] EWCA Crim 4

This case demonstrates the principle of causation in ABH offences.

Facts: The defendant made unwanted sexual advances towards the victim while driving. Fearing further assault, the victim jumped from the moving car, sustaining injuries.

Holding: The Court of Appeal held that the defendant was liable for ABH because the victim's actions were a reasonably foreseeable consequence of the defendant's conduct.

Application: This case shows that a defendant can be held responsible for injuries resulting from the victim's foreseeable reaction to an assault or battery.

Causation and the "Thin Skull" Rule

The principle that a defendant must "take their victim as they find them" is central in ABH cases, often referred to as the "thin skull" rule. This means that if a minor act causes significant harm due to a victim's unforeseen vulnerability, the defendant remains liable for the full extent of the harm. For instance, if an individual with a fragile bone condition sustains a serious fracture from a push that would ordinarily cause no harm, the person who pushed them is liable under s.47 for the resulting injury.

3. Defences and Mitigating Factors

Consent

Consent can serve as a defence to assault or battery but is limited in its application to offences involving ABH.

In R v. Brown [1993] UKHL 19, the House of Lords held that consent is not a defence to offences under s.47 where the harm is more than trivial, particularly in cases involving activities contrary to public policy. Conversely, in R v. Wilson [1996] 2 Cr App R 241, consent was accepted where a husband branded his initials on his wife's buttocks with her consent.

Key considerations for consent as a defence include:

• The nature of the activity (e.g., regulated sports, medical procedures)
• Whether the activity is in the public interest
• The extent of the harm caused

Self-Defence

Self-defence can negate liability for ABH if the force used was reasonable in the circumstances.

Under s.76 of the Criminal Justice and Immigration Act 2008, relevant factors include:

• The defendant's genuine belief in the necessity of the force used
• The proportionality of the force in relation to the perceived threat

It is notable that a mistaken belief due to voluntary intoxication does not provide a defence under s.76(5) of the Act.

4. Prosecution Considerations and Charging Decisions

When deciding whether to charge an individual under s.47, prosecutors consider several factors:

1. Severity of Harm: Whether the injuries sustained exceed the threshold of being transient and trifling.

2. Evidential Sufficiency: The availability and reliability of evidence to prove both actus reus and mens rea beyond reasonable doubt.

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

4. Appropriate Charge: Determining whether the offence more appropriately falls under a different section, such as common assault or grievous bodily harm under s.20 or s.18.

5. Mode of Trial: ABH is triable either way, influencing decisions on whether the case is heard in the Magistrates' Court or the Crown Court.

5. Practical Examples and Exam Application

Consider the following scenarios within the context of s.47:

Example 1: During a heated argument, Alex pushes Blake, who falls and suffers a broken wrist. Even if Alex did not intend serious injury, the act of pushing satisfies the actus reus of assault or battery, and the injury constitutes actual bodily harm. Liability under s.47 arises if there was intention or recklessness regarding the initial act.

Example 2: In a football match, Charlie tackles Dana in a manner that breaches the rules of the game, resulting in a concussion. Participants consent to the risk of injury that is normal in the sport, but actions beyond accepted norms may negate consent. Charlie could be charged under s.47 if the tackle was intentional or reckless and caused actual bodily harm.

Exam Application: Candidates analyzing ABH should:

1. Identify the Actus Reus: Determine whether there was an assault or battery resulting in actual bodily harm.

2. Assess the Mens Rea: Establish intention or recklessness regarding the assault or battery.

3. Analyze Defences: Consider the applicability of defences such as consent or self-defence.

4. Reference Case Law: Support arguments with relevant cases, demonstrating an understanding of legal precedents.

5. Evaluate Evidence: Consider the sufficiency and reliability of evidence presented.

Conclusion

Understanding that liability under s.47 can arise without the defendant foreseeing or intending the resulting harm highlights the strict nature of assault occasioning actual bodily harm. The challenge lies in the interplay between the mental and physical elements of the offence. The actus reus requires an assault or battery leading to actual bodily harm, while the mens rea pertains only to the initial assault or battery, not the harm that follows. This principle, affirmed in R v. Savage; DPP v. Parmenter, emphasizes that defendants are held accountable for the unintended consequences of their intentional or reckless actions.

Moreover, the interaction between legal principles such as consent and self-defence further illustrates the detailed application of s.47. Cases like R v. Brown and R v. Wilson demonstrate that consent may be a defence in certain contexts, but public policy considerations often limit its applicability.

In practical terms, precise knowledge of these legal requirements is essential. Effective analysis involves identifying the elements of the offence, applying relevant case law, and considering possible defences. Proficiency in these concepts is essential for addressing ABH-related questions on the SQE1 FLK2 exam and for sound legal practice.