Actual bodily harm
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Actual Bodily Harm (often abbreviated to ABH) is a type of criminal assault defined under English law. It encompasses those assaults which result in injuries, typically requiring a degree of medical treatment of the victim. The offence is defined in S-47 Offences Against The Person Act 1861 and it is a hybrid offence, i.e. it can be tried in either the Magistrates' Court or Crown Court. There is a maximum sentence of 5 years imprisonment (or 7 years if it is racially motivated).
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[edit] The offence
In English law, there is a range of non-fatal offences of varying degrees of severity beginning with 'common assault' (the least serious), 'assault occasioning actual bodily harm' (ABH), and the most serious assaults resulting in grievous bodily harm' (GBH).
[edit] Assault
For there to be an assault, the victim must either "apprehend" the application of physical force, i.e. anticipate that a battery is about to occur, or experience a battery without warning. In Fagan v MPC [1969] 1 QB 439 a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman’s foot and, when asked to remove the car, said "Fuck you, you can wait" and turned off the ignition. Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault. Albeit accidentally, the driver had caused the car to rest on the foot. This actus reus was a continuing state of affairs and the mens rea was formed during the relevant time (see concurrence). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete.
[edit] Occasioning
This is usually taken to mean the same as "causing" i.e. it includes both acts and omissions. In R v Roberts (1971) 56 Cr. App. R. 95 while giving a lift in his car, late at night to a girl, the defendant made unwanted sexual advances. She feared that he intended to rape her so, even though the car was moving, she opened the door, jumped out, and suffered grazes and concussion. Stephenson LJ. stated that the test for causation was whether the result was a reasonably foreseeable consequence of what the defendant was saying or doing. In R v Savage; DPP v Parmenter (1991) 4 All ER 698 Savage threw beer over the victim and, in the struggle, the glass broke and cut the victim. It was held that s47 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 s47 because the injury resulted from his intention to play with his son.
[edit] Bodily harm
The Crown Prosecution Service states that "bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling". Examples of injures that would be considered ABH include:
- Loss or breaking of teeth;
- Temporary loss of sensory function, including loss of consciousness;
- Extensive or multiple bruising;
- Displaced broken nose;
- Minor fractures of bones;
- Minor cuts requiring medical treatment.
Causing any of these injuries would constitute the "actus reus" (Latin for the "guilty act") of ABH. Grazes, minor bruising, swelling, superficial cuts or a black eye would probably be regarded as common assault. The concept of ABH was considered by the Divisional Court in DPP v Smith (Michael Ross) (2006) EWHC 94 (Admin). 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 ABH, 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 DPP, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done. Judge P said:
- "In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim."
It has long been accepted that ABH 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 ABH, even if the element damaged is dead skin or tissue. As Creswell J. commented in his short concurring judgment:
- "To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm."
[edit] Non-physical injury
Non-physical or psychiatric injury can be considered ABH, although there must be medical evidence of the injury. The original legislative intent was probably restricted to physical injury because Parliament required "bodily" rather than "mental" or "emotional" harm. Hence, in R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. The court was reluctant to consider this an injury within the meaning of the Act. But, in modern times, R v Chan Fook (1994) 1 WLR 689 accepted hysteria as an injury when the defendant locked up a shoplifter who became very upset (i.e. there was some "harm"). This was followed by the Court of Appeal in R v Constanza (1997) 2 Cr. App. R. 492, and the House of Lords which confirmed the principle in R v Burstow, R v Ireland (1998) AC 147. These were a pair of cases on harassment situations before the Protection from the Harassment Act 1997 came into force. During a three month period, Ireland, who had a substantial record of making offensive telephone calls to women, harassed three women by making repeated silent or heavy breathing telephone calls to them at night. This caused his victims to suffer psychiatric illness. Similarly, Burstow could not accept the decision of a woman to terminate a relationship, so he harassed her over an eight month period by making silent and abusive telephone calls, distributed offensive cards in the street where she lived, appeared unnecessarily at her home and place of work, took surreptitious photographs of the victim and her family, and sent her a menacing letter. The victim was fearful of personal violence and was diagnosed as suffering from a severe depressive illness. The best medical practice today accepts a link between the body and psychiatric injury, so the words "bodily harm" in ss20 and 47 were capable of covering recognised psychiatric illnesses, such as an anxiety or a depressive disorder, which affect the central nervous system of the body. However, to qualify, those neuroses must be more than simple states of fear, or problems in coping with everyday life, which do not amount to psychiatric illnesses.
[edit] Mens rea
In committing an act of ABH, the "mens rea" (Latin for "guilty mind") may be one of recklessness rather than intention. The court in DPP v Parmenter ruled that, for ABH, “...it is not necessary to show that Parmenter intended bodily harm; if he intended or was reckless as to the assault, and the actual bodily harm was a reasonably foreseeable result (whether or not it was or should have been foreseen by Parmenter himself), that is sufficient.”
[edit] Distinction between ABH and GBH
ABH is distinguished from the more serious charge of grievous bodily harm both on the level of intent required, and on the severity of the injury (self-evidently, the severity may provide evidence of the intent). The Crown Prosecution Service provide examples of factors which may indicate intent; for example: "a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; and using an offensive weapon against, or kicking the victim's head". All these examples would distinguish the crime as GBH, rather than ABH.
