Assault occasioning actual bodily harm (often abbreviated to
Assault O.A.B.H. or simply
ABH) is a statutory offence of aggravated
assaultIn law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
in
England and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
,
Northern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, the
Australian Capital TerritoryThe Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
,
New South WalesNew South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
,
Hong KongHong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
and the
Solomon IslandsSolomon Islands is a sovereign state in Oceania, east of Papua New Guinea, consisting of nearly one thousand islands. It covers a land mass of . The capital, Honiara, is located on the island of Guadalcanal...
. It has been abolished in the
Republic of IrelandIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
and in
South AustraliaSouth Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
, but replaced with a similar offence.
The offence
In England and Wales, and in Northern Ireland, the offence is created by section 47 of the
Offences against the Person Act 1861The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
:
The words "at the discretion of the court" omitted in the first place, and the words "for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour" omitted in the second place, were repealed by the Statute Law Revision Act 1892.
The words from "and" to the end, omitted in the third place, were repealed for England and Wales by section 170(2) of, and Schedule 16 to, the Criminal Justice Act 1988 (subject to section 123(6) of, and paragraph 16 of Schedule 8 to, that Act).
The words "with or without hard labour" at the end were repealed for England and Wales by section 1(2) of the
Criminal Justice Act 1948The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
.
The text of this section is slightly different in Northern Ireland.
Assault
The expression assault includes "
batteryBattery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
."
Fagan v Metropolitan Police Commissioner was decided under section 51 of the
Police Act 1964The Police Act 1964 was an Act of the Parliament of the United Kingdom that updated the legislation governing police forces in England and Wales, constituted new police authorities, gave the Home Secretary new powers to supervise local constabularies, and allowed for the amalgamation of existing...
, which also used the word "assault" without further explanation and without any explicit reference to battery. James J. said:
In
R v Williams (Gladstone), the defendant was prosecuted for this offence. Lord Lane said:
In
R v Ireland, R v Burstow,
one of the defendants was prosecuted for this offence. Lord Steyn said:
The second form of assault referred to is the offence described as
common assaultCommon assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
in section 39 of the Criminal Justice Act 1988, which is also known as
psychic assaultPsychic assault is a term used by academic legal writers as a synonym for assault in order to distinguish that offence from the related crime of battery and so avoid confusion...
or simply
assaultIn law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
.
Occasioning
Blackstone's Criminal Practice, 2001, says that "occasioning" is equivalent to causing (para B2.21 at p. 172) and has a specimen form of indictment that uses the word "caused" (para B2.18 at p. 171).
In
R v Roberts (1971) 56 Cr. App. R. 95, CA, the defendant gave a lift in his car, late at night, to a girl.
The girl said that while travelling in the defendant's car he sought to make advances towards her and then tried to take her coat off. She said that this was the last straw, and although the car was travelling at some speed, she jumped out and sustained injuries. The defendant said that he had not touched the girl. He said that he had had an argument with her and that in the course of that argument she suddenly opened the door and jumped out.
Stephenson LJ. said that the test for determining whether the defendant had "occasioned" the injuries that the girl had suffered as a result of jumping out of the car was this:
This passage was set out in
R v Savage, DPP v Parmenter at page 14.
The book "Archbold" says that this test applies to any case where the injury was not the direct result of the defendant's act.
In
R v Savage, DPP v Parmenter, Savage threw beer over the victim and, in the struggle, the glass broke and cut the victim. It was held that section 47 did not require proof of recklessness in relation to the 'occasioning'. The throwing of the beer was an assault, and that "assault" had occasioned the actual bodily harm which occurred in the continuing struggle. Parmenter injured his baby by tossing him about too roughly. Even though the baby was too young to apprehend the physical contact, there was voluntary contact that caused injury, so Parmenter was liable under section 47 because the injury resulted from his intention to play with his son.
Actual bodily harm
Bodily harm and the distinction (if any) between bodily harm and actual bodily harm
In
Rex v. Donovan, Swift J., in delivering the Judgement of the
Court of Criminal AppealThe Court of Criminal Appeal is the name of existing courts of Scotland and Ireland, and an historic court in England and Wales.- Ireland :See Court of Criminal Appeal ...
, said:
This passage was cited and approved in
R v BrownR v Brown [1994] 1 AC 212 is a House of Lords judgment in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10 year period. They were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" contrary to...
(Anthony), by Lord Templeman (at p. 230) and Lord Jauncey (at p. 242).
In
R v. Miller [1954] 2 All ER 529, [1954] 2 QB 282, Lynskey J. said:
In
R v. Chan-Fook [1994] 2 All ER at 557D, Hobhouse LJ. said of the expression "actual bodily harm", in contending that it should be given its ordinary meaning:
In
R v. Morris (Clarence Barrington) [1998] Cr. App. R. 386 at 393, Potter LJ., in delivering the judgement of the Court of Appeal said (the citations that he quotes from the textbook are omitted):
In
DPP v. Smith (Michael Ross), Judge P. said:
Cutting hair
In
DPP v Smith (Michael Ross), the defendant held down his former girlfriend and cut off her ponytail with kitchen scissors a few weeks before her 21st birthday. The Magistrates acquitted him on the ground that, although there was undoubtedly an assault, it had not caused actual bodily harm, since there was no bruising or bleeding, and no evidence of any psychological or psychiatric harm. The victim’s distress did not amount to bodily harm. The Divisional Court allowed an appeal by the Director of Public Prosecutions, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done. Judge P said:
It has been accepted that actual bodily harm includes any hurt or injury that interferes with the health or comfort of the victim, and which is more than transient or trifling. To damage an important physical aspect of a person’s bodily integrity must amount to actual bodily harm, even if the element damaged is dead skin or tissue. As Creswell J. commented in his short concurring judgment:
CPS charging standards
The
Crown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
service has said that, by way of example, it considers the following injuries to be actual bodily harm and to be sufficiently serious that they could not be adequately reflected by a charge of
common assaultCommon assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
and ought normally to be prosecuted under section 47:
- The loss or breaking of a tooth or teeth
- Temporary loss of sensory function, including loss of consciousness
- Extensive or multiple bruising
A bruise, also called a contusion, is a type of relatively minor hematoma of tissue in which capillaries and sometimes venules are damaged by trauma, allowing blood to seep into the surrounding interstitial tissues. Bruises can involve capillaries at the level of skin, subcutaneous tissue, muscle,...
- A displaced broken nose
Epistaxis or a nosebleed is the relatively common occurrence of hemorrhage from the nose, usually noticed when the blood drains out through the nostrils...
- Minor fracture
A bone fracture is a medical condition in which there is a break in the continuity of the bone...
s of bones
- Minor (but not superficial) cuts requiring medical treatment
- A recognised psychiatric disorder
Causing any of these injuries (by assault or battery) would constitute the
actus reusActus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
of assault occasioning actual bodily harm. The CPS has advised its prosecutors that grazes, minor bruising, swelling, superficial cuts or a
black eyeA black eye , or or 'shiner', is bruising around the eye commonly due to an injury to the face rather than eye injury. The name is given due to the color of bruising. The so-called black eye is caused by bleeding beneath the skin and around the eye...
should normally be prosecuted as common assault.
Mens rea
The
mens reaMens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
of this offence is identical to that of assault or battery (depending on the mode by which the offence is committed). Accordingly, it does not correspond with the
actus reusActus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
. Academic writers have termed this feature of the offence
half mens rea and
constructive liability.
The mens rea for this crime may be one of recklessness rather than intention as to the commission of an assault or battery, and it is considered to be a crime of basic intent.
The court in
DPP v Parmenter ruled that, for this offence,
Mode of trial
In England and Wales, assault occasioning actual bodily harm is
triable either wayA hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment...
.
Sentence
In England and Wales, a person guilty of assault occasioning actual bodily harm is liable, on conviction on indictment, to imprisonment for a term not exceeding five years, or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the
prescribed sumThe prescribed sum is the maximum fine that may be imposed on summary conviction of certain offences in the United Kingdom. In England and Wales and Northern Ireland, it is now equivalent to level 5 on the standard scale, which it predates...
, or to both.
Where a person is convicted on indictment of assault occasioning actual bodily harm, other than an offence for which the sentence falls to be imposed under section 227 or 228 of the
Criminal Justice Act 2003The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
, the court, if not precluded from sentencing an offender by its exercise of some other power, may impose a fine instead of or in addition to dealing with him in any other way in which the court has power to deal with him, subject however to any enactment requiring the offender to be dealt with in a particular way.
Assault occasioning actual bodily harm is a specified offence for the purposes of chapter 5 of the
Criminal Justice Act 2003The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
because it is a specified violent offence. It is not a serious offence for the purposes of that Chapter because it is not, apart from section 225, punishable in the case of a person aged 18 or over by imprisonment for life, or by imprisonment for a determinate period of ten years or more. This means that sections 227 and 228 of the
Criminal Justice Act 2003The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
(which relate to extended sentences) apply where a person is convicted of assault occasioning actual bodily harm, committed after the commencement of section 227 or 228 (as the case may be) and the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.
See
Crown Prosecution Service Sentencing Manual for case law on sentencing. Relevant cases are:
- R v Smith (1988) 10 Cr App R (S) 434
- R v Davies (1990) 12 Cr App R (S) 308
- R v Hayes (1992) 13 Cr App R (S) 722
- R v Charlton (1995) 16 Cr App R (S) 703
- R v. Sharpe [1999] EWCA Crim 964 (13 April 1999), [2000] 1 Cr App R (S) 1
- R v. Byrne [1999] EWCA Crim 1892 (29 June 1999), [2000] 1 Cr App R (S) 282
- R v McNally [2000] 1 Cr App R (S) 535
- Emms [2008] EWCA Crim 967
- Nawaz [2008] EWCA Crim 1454
- McDonald [2008] EWCA Crim 1499
- Morgan [2009] EWCA Crim 659
- R v Pavia [2009] EWCA Crim 1858
- Ravenhill [2009] 2 Cr App R (S) 19
- Parker [2010] 1 Cr App R (S) 32
- Abbas [2010] 1 Cr App R (S) 47
It is inappropriate for the court to sentence an offender on the basis of racial aggravation where he has been convicted of this offence, but not the racially aggravated offence: R v. McGilliviray; R v. Kentsch.
In Northern Ireland, a person guilty of assault occasioning actual bodily harm is liable, on conviction on indictment, to imprisonment for a term not exceeding seven years, or on summary conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the prescribed sum, or to both.
Racially or religiously aggravated offence
In England and Wales, section 29(1)(b) of the
Crime and Disorder Act 1998The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998...
(c.37) creates the distinct offence of racially or religiously aggravated assault occasioning actual bodily harm.
Visiting Forces
In England and Wales and Northern Ireland, assault occasioning actual bodily harm is an
offence against the personIn criminal law, an offence against the person usually refers to a crime which is committed by direct physical harm or force being applied to another person.They are usually analysed by division into the following categories:*Fatal offences*Sexual offences...
for the purposes of section 3 of the
Visiting Forces Act 1952The Visiting Forces Act 1952 is an Act of the Parliament of the United Kingdom. provides immunity against prosecution for certain offences in the courts of United Kingdom by members of visiting forces and, by virtue of the 1964 Act, international headquarters...
.
Australia
Australian Capital Territory
The offence is created by section 24(1) of the Crimes Act 1900.
http://www.austlii.edu.au/au/legis/act/consol_act/ca190082/s24.html http://www.legislation.act.gov.au/a/1900-40/current/pdf/1900-40.pdf
New South Wales
The offence is created by section 59(1) of the
Crimes Act 1900The Crimes Act 1900 is a New South Wales statute that codifies the common law crimes for the state of New South Wales in Australia. Along with the Crimes Act 1914 and the Federal Criminal Code Act 1995 , these two pieces of legislation form the majority of criminal law for New South Wales.As it is...
(a different statute of the same name).
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s59.html
South Australia
Assault occasioning actual bodily harm was formerly an offence under section 40 of the Criminal Law Consolidation Act 1935, but has been abolished and replaced with a similar offence (see below).
http://www.legislation.sa.gov.au/LZ/C/A/CRIMINAL%20LAW%20CONSOLIDATION%20ACT%201935/CURRENT/1935.2252.UN.PDF
Hong Kong
The offence is created by
section 39 of the Offences against the Person Ordinance. It is triable on
indictmentAn indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
and a person guilty of it is liable to imprisonment for three years.
Pacific Islands
Solomon Islands
The offence is created by section 245 of the Penal Code (Ch.26).
http://www3.paclii.org/sb/legis/consol_act/pc66/
Republic of Ireland
The common law offence of assault occasioning actual bodily harm was abolished, and section 47 of the
Offences against the Person Act 1861The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
was repealed, on a date three months after 19 May 1997.
Derivative offences
In a number of jurisdictions this offence has been replaced by an offence which is very similar.
Canada
Section 267(b) of the Canadian Criminal Code creates the offence of
assault causing bodily harmAssault causing bodily harm is a statutory offence of aggravated assault in Canada. It is committed by anyone who, in committing an assault, causes bodily harm to the complainant...
.
Republic of Ireland
Section 3 of the
Non-Fatal Offences Against the Person Act 1997The Non-Fatal Offences Against the Person Act 1997 is an Act of the Oireachtas which virtually codified the criminal law on offences against the person in the Republic of Ireland...
(No.26) creates the offence of assault causing harm.
South Australia
Section 20(4) of the Criminal Law Consolidation Act 1935 creates the offence of assault causing harm.
External links