Offences against the person - Assault occasioning actual bod...

Learning Outcomes

This article outlines assault occasioning actual bodily harm (s.47 Offences Against the Person Act 1861), including:

• Statutory framework and key case law governing s.47 ABH under the Offences Against the Person Act 1861
• Elements of actus reus and mens rea for s.47 ABH, including foundational assault or battery, causation, and the scope of "actual bodily harm"
• Distinctions between s.47 ABH, common assault, battery, and grievous bodily harm under s.20 and s.18, and the degree and type of harm required
• Psychiatric injury as ABH and its limits, with relevant legal authorities
• Role and limits of causation (factual and legal), including novus actus interveniens and foreseeability in typical ABH scenarios
• Consent and self-defence principles in relation to s.47, recognised exceptions, and public policy constraints
• Practical and problem-based application of s.47 ABH supported by accurate legal reasoning
• Sentencing options for s.47 and its position within the hierarchy of non-fatal offences against the person

SQE1 Syllabus

For SQE1, you are required to understand assault occasioning actual bodily harm (s.47 OAPA 1861), with a focus on the following syllabus points:

• The definition and elements of assault occasioning actual bodily harm (s.47 OAPA 1861).
• The distinction between assault and battery, and their relationship to s.47 ABH.
• The physical (actus reus) and mental (mens rea) elements required for s.47 ABH.
• Definition of "actual bodily harm", including both physical and psychiatric injury.
• The causation requirement – both factual (“but for”) and legal causation, including the thin skull and intervening acts principles.
• The requisite mens rea: intention or recklessness as to assault or battery, not the resulting harm.
• The operation of consent and self-defence as defences in ABH cases, including relevant public policy exceptions (e.g., sport, medical treatment, horseplay).
• Comparison of s.47 ABH with common assault/battery and more serious offences (s.20, s.18), including the application of the "charging standard".
• Practical application in police station advice, bail, charging decisions, and court proceedings.
• Sentencing range and factors relevant to ABH.
• Application of principles through realistic case scenarios and multiple-choice style questions in preparation for the SQE1.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the two essential elements of actus reus for s.47 ABH?
2. Does the defendant need to intend or foresee actual bodily harm to be guilty under s.47?
3. Can psychiatric injury amount to actual bodily harm for s.47?
4. In what circumstances, if any, is consent a defence to s.47 ABH?

Introduction

Assault occasioning actual bodily harm (ABH) under s.47 of the Offences Against the Person Act 1861 is a foundational non-fatal offence, forming an important part of the hierarchy of offences against the person in English criminal law. The statute criminalises any assault or battery which results in a harm to the victim's body that is more than "transient or trifling." Positioned between common assault/battery and the more serious offences of grievous bodily harm (GBH) under ss.20 and 18, s.47 is frequently charged where the level of injury is significant but does not rise to the threshold of "serious harm" required for GBH.

To establish s.47 ABH, prosecutors must prove a foundational assault or battery and that this caused actual bodily harm to the victim. The defendant’s state of mind must be intention or recklessness as to the foundational assault or battery: there is no need for intention or foresight as to the actual bodily harm itself. Understanding the differences in both the physical and mental elements of this offence—and how consent and self-defence interact with liability—is central to correct analysis and problem-solving in SQE1 and in legal practice.

Key Term: assault
Assault is an act by which a person, intentionally or recklessly, causes another person to apprehend the infliction of immediate, unlawful force.

Key Term: battery
Battery is the application of unlawful force to another person—either intentionally or recklessly.

Key Term: actual bodily harm (ABH)
ABH is any injury or hurt calculated to interfere with the health or comfort of the victim and which is more than transient or trifling. This includes recognised psychiatric conditions.

Actus Reus of s.47 ABH

To prove s.47 ABH, the prosecution must show:

• There was an assault or battery committed by the defendant.
• That the assault or battery "occasioned" (i.e., caused) actual bodily harm to the victim.

Both elements must be established; without proof of either the foundational assault or battery, or the resulting harm, the s.47 offence is not made out.

The Foundational Assault or Battery

The "base offence" is the common law assault or battery. Recall that assault involves causing another to apprehend immediate, unlawful force. Battery is the direct or indirect application of such force. Either can form the basis of a s.47 charge, and the same definitions from common law apply.

Often in exam questions and in practice, the assault and the battery are committed together—i.e., the victim is threatened and then struck—but liability can arise where only one is made out.

Occasioning: The Requirement of Causation

The s.47 offence is a "result" crime: the prosecution must prove that the ABH was occasioned by, or a consequence of, the assault or battery. Both factual and legal causation must be present. The “but for” test applies to determine factual causation: but for the defendant’s assault or battery, would the victim have sustained the actual bodily harm? If yes, factual causation is established. Legal causation requires that the defendant’s conduct be a substantial and operating cause of the injury, and that there is no novus actus interveniens (new intervening act) breaking the chain.

Key Term: occasioning
In s.47, this term is interpreted as simply meaning "causing". The same rules and case law as general causation apply.

Intervening Acts and Reasonable Foreseeability

Where a victim’s response is “so daft” or “unexpected” that it is unforeseeable, this may break the chain of causation. However, the law sets a high bar for novus actus interveniens, and the defendant remains liable if the victim’s reaction is a reasonably foreseeable result of the assault or battery.

Key Term: causation
The required link between the defendant's conduct and the result, covering both the factual ("but for" test) and legal (was it a substantial and operative cause, free from a novus actus interveniens) components.

What Injuries Qualify as ABH?

There is no exhaustive list, but ABH covers a range of injuries and reflects a threshold above the most minor harm or distress. The leading authority (R v Miller [1954]) defined ABH as “any hurt or injury calculated to interfere with the health or comfort of the victim” that is “more than transient or trifling”.

In practice, the following injuries commonly amount to ABH:

• Significant bruising, grazes, scratches, abrasions, cuts, or swelling.
• Loss of consciousness, even if temporary (T v DPP [2003]).
• Minor fractures.
• Damage to teeth or bone not amounting to GBH.
• Cutting or removal of a substantial amount of hair (DPP v Smith [2006]).
• Recognised psychiatric illness (e.g., clinical depression or anxiety disorder), but not mere panic, distress, or fear (R v Chan-Fook [1994], R v Ireland [1997]).

For lesser injuries such as a light slap, fleeting red mark, or momentary discomfort, the correct charge is likely common assault or battery.

ABH and Psychiatric Injury

Psychological injury can constitute ABH if it amounts to a clinically recognisable psychiatric illness, confirmed by expert medical evidence. Emotional states such as fear, panic, distress, or mere upset do not suffice—even if serious or long-lasting. For example, anxiety neurosis or reactive depression diagnosed by a practising psychiatrist may qualify (R v Chan-Fook).

Key Term: psychiatric injury
For the purposes of s.47 ABH, this refers to a recognised psychiatric condition confirmed by expert evidence, not just emotional distress or upset.

ABH: Application and Examples

• A black eye or significant bruising from a punch.
• A broken tooth or bone (but not a wound within the meaning of s.20).
• Diagnostic-level post-traumatic stress disorder (PTSD) after an assault.
• Hair being cut forcibly without consent, interfering with victim’s comfort or self-esteem.
• Loss of consciousness, even if momentary.

Worked Example 1.1

Question:
Sam pushes Lee during an argument. Lee falls, hits his head, and suffers a concussion. Sam claims he did not intend to injure Lee. Is Sam guilty of s.47 ABH?

Answer:
Yes. Sam intentionally applied unlawful force (battery). The battery caused actual bodily harm (concussion). Sam need not intend or foresee the injury—intention or recklessness as to the battery is sufficient.

Mens Rea of s.47 ABH

The mental element required for s.47 ABH is intention or recklessness as to the assault or battery. It is not necessary for the defendant to intend or foresee actual bodily harm. This is sometimes called "constructive liability"—the law constructs liability for the more serious consequence even though the mens rea is only for the base offence.

Key Term: recklessness
A person is reckless if they foresee the risk that unlawful force may be applied, and unreasonably take that risk.

This creates a diverging structure between actus reus and mens rea for s.47:

• Actus reus: assault or battery occasioning actual bodily harm;
• Mens rea: intention or recklessness as to causing the assault or battery, not as to causing ABH.

A common error is to seek to attribute intention or recklessness to the harm. However, the correct approach is that intention/recklessness relates only to the assault (making the victim apprehend immediate, unlawful force) or the infliction of a battery (the unlawful application of force).

Worked Example 1.2

Question:
Jade throws a glass of water at Pat, intending only to annoy him. The glass slips, breaks, and cuts Pat's hand. Jade says she never intended to cause injury. Is Jade guilty of s.47 ABH?

Answer:
Yes. Jade intentionally committed a battery. The resulting injury (cut) is actual bodily harm. Her lack of intention or foresight as to the injury is irrelevant for s.47.

The test for recklessness is subjective: Did the defendant foresee a risk that their actions might cause another to fear or suffer the application of unlawful force? For battery, the same standard applies.

Conditional and Transferred Malice

If the defendant intends to assault one person but accidentally strikes another (transferred malice), liability for s.47 still attaches if the actus reus and mens rea coincide.

Causation in ABH Offences

Both factual and legal causation must be proved. The ABH must be a direct consequence of the foundational assault or battery, and this consequence must not be “so daft” as to be unforeseeable. The “thin skull rule” applies: the defendant must take the victim as found, including any pre-existing weaknesses (e.g. a victim more susceptible to injury).

• If the chain of causation is broken by an unforeseeable action of a third party or a bizarre reaction of the victim, liability may not follow.
• Where the ABH results from the victim’s foreseeable attempt to escape, liability remains (R v Roberts [1972]).

Worked Example 1.3

Question:
Rob throws a bottle at Jean, missing her but causing her to run away. Jean trips and sprains her ankle. Did Rob’s actions "occasion" ABH?

Answer:
Yes, if Jean’s response was within the range of foreseeable actions—such as fleeing from apparent danger. If her method of escape was not “daft” or unexpected, causation is established and Rob may be liable for s.47 ABH.

Psychiatric Injury as ABH

As noted, psychiatric injury can amount to ABH only if it constitutes a recognised disorder. The authoritative guidance is set out in R v Chan-Fook and reinforced in R v Ireland: psychiatric harm means more than mere fright or anxiety; it must be a medically recognised illness confirmed by expert evidence.

Examples:

• Victim develops clinically diagnosed depression after an assault: likely ABH.
• Victim experiences panic and sleeps poorly for several days; not ABH unless formally diagnosed as a medical disorder.

Injury must not only be serious but must also affect health or comfort—the mere transience or triviality of the hurt is not sufficient.

Worked Example 1.4

Question:
Maya is subjected to repeated threats and develops a medically diagnosed anxiety disorder. Is this ABH?

Answer:
Yes, provided the anxiety disorder is a recognised psychiatric injury. Mere upset or fear would not be enough.

Consent and Self-Defence

Consent

Consent is generally a complete defence to common assault and battery but has strict limits in the context of s.47 ABH. Public policy does not allow a person to consent to deliberate or reckless infliction of ABH, except in certain recognised lawful activities.

Consent may be a defence to ABH only if the injury occurs in the course of:

• Lawful sporting activities (within the rules and practice of the game) where the risk of injury is present (e.g., regulated contact sports, not deliberate fouls outside the accepted rules).
• Properly conducted medical or surgical procedures.
• Reasonable and genuine horseplay.
• Lawful body modifications such as tattooing and piercing (with valid, informed consent, and subject to statutory regulation).
• Orthodox religious practices (e.g., male circumcision).

Sadomasochistic activity (e.g., R v Brown) or street fighting/assault for sexual gratification, even with consent, do not attract a consent defence for ABH or more serious injuries. The rationale is protection against the "cult of violence"—consent to serious bodily harm, including ABH, is not available as a matter of policy except for clear and justified exceptions.

Key Term: consent
Agreement to the application of force, which may make an assault or battery lawful in certain circumstances. For ABH, only effective in clearly recognised lawful contexts.

Worked Example 1.5

Question:
Mark tackles Simon in a rugby match, as part of a legitimate play within the rules. Simon suffers a broken nose. Mark is prosecuted for s.47 ABH. Is consent available as a defence?

Answer:
Yes, if the injury occurred during participation in the match and was within the accepted rules—and Mark’s conduct was not reckless or outside the scope of the sport. If Mark intended to injure Simon beyond what is permitted in the game, consent may not be a defence.

Self-Defence

Self-defence is always potentially available where the force used was reasonable and necessary to avert an imminent threat or protect oneself or another. The burden is to raise sufficient evidence, after which the prosecution must disprove self-defence beyond a reasonable doubt. The test for reasonableness is both subjective and objective: the defendant must believe (even mistakenly, if the mistake is honestly held and not due to voluntary intoxication) that force is necessary, and it must be reasonable in the circumstances as perceived.

• If force is "grossly disproportionate" (especially in householder cases), the defence will fail. Disproportionate force may be reasonable in limited householder scenarios but not in relation to ABH outside those contexts.
• Self-induced intoxication will prevent reliance on a mistaken belief in need for force.

Key Term: self-defence
The use of reasonable force to defend oneself or another, or to prevent crime. The test for reasonableness has both subjective and objective aspects.

Co-Defendants and Participation in ABH

Where several individuals act together, each who assists or encourages the base offence with the requisite mens rea may be liable for ABH as a principal or a secondary party under accessorial liability principles.

Hierarchy of Non-Fatal Offences

A clear hierarchy allows practitioners and prosecutors to differentiate charges according to the severity of harm and the defendant's mental state:

• s.47 and s.20 are both triable either way and carry the same maximum penalty, even though s.20 requires more serious harm.
• The difference in mens rea is a key point: s.20 requires intention or recklessness as to some harm, not the level of harm actually inflicted.
• Prosecutorial "charging standards" assist in choosing between s.47 and s.20, notably in light of ABH definitions and injury seriousness.

Sentencing and Procedural Context

• s.47 ABH charges may be tried in the magistrates’ court or Crown Court, with summary trial limited to 12 months' imprisonment (for two either way offences—i.e., after May 2022). On indictment, the maximum is 5 years.
• Under the current Sentencing Council guidelines, courts reflect the degree of harm, culpability, aggravated and mitigating factors, and prior convictions when selecting sentences within the prescribed range.

Factors increasing seriousness include use of weapon, previous convictions, particular vulnerability of the victim, offence motivated by hostility (e.g., racial or religious aggravation), or commission of the offence as part of a group activity. Factors reducing seriousness often include genuine remorse, good character, cooperation, early guilty plea, or strong personal mitigation such as care responsibilities or particular vulnerability.

• Where the defendant is convicted of multiple offences, the court applies the “totality principle” to ensure proportionality.
• An early guilty plea affords the greatest reduction (up to one-third off sentence) if indicated at the first hearing, sliding down for later pleas.

Disclosure and Court Procedure for ABH

• Adequate disclosure of the prosecution case (Initial Details of the Prosecution Case, or IDPC) must be provided before plea.
• Under CrimPR, disputed factual or legal issues (for example, reliance on self-defence or consent, or challenges to the scope of psychiatric harm) are identified at case management hearings.
• Defence statements are compulsory in the Crown Court when tried on indictment.
• Evidence of previous convictions may be admissible in certain cases as bad character evidence through the CJA 2003 gateways.
• Where identification is an issue (i.e., the defendant disputes being the assailant), the procedures in PACE Code D apply, including video identification and Turnbull directions in trial.

Key Point Checklist

This article has covered the following key knowledge points:

• The actus reus of s.47 ABH is an assault or battery causing actual bodily harm.
• The level of injury required is more than "transient or trifling" and includes cut or removal of hair and recognised psychiatric injury.
• The causation requirement entails both the "but for" test and legal causation, including foreseeability and the thin skull rule.
• Mens rea is satisfied by intention or subjective recklessness as to the base assault or battery—no need for intent or foresight of actual bodily harm.
• The difference in mens rea marks s.47 from s.20 and s.18—s.20 requires foresight of some harm, and s.18 requires intent to cause serious harm.
• Consent is only a defence in limited circumstances for s.47 ABH, notably sport, medical treatment, or recognised lawful activity.
• Self-defence may be available provided the force used was necessary and reasonable, as subjectively and objectively assessed.
• Psychiatric injury, if constituting a recognised disorder, can be sufficient for ABH.
• The sentencing range is up to 5 years’ imprisonment on indictment, and up to 12 months summarily (for two either way offences).
• s.47 ABH is an "either way" offence: it may be tried summarily in the magistrates’ court or on indictment.
• Charging decisions rely significantly on the seriousness and type of injury, as per applicable standards.

Key Terms and Concepts

• assault
• battery
• actual bodily harm (ABH)
• occasioning
• causation
• recklessness
• psychiatric injury
• consent
• self-defence