S.47 of the Offences Against Person Act (1861) reads as follows:-
“ Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . . . (to imprisonment for a term not exceeding 7 years) . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding (two years).”
Actual bodily harm per se is defined as minor injuries including cuts, bruises, lacerations, or any other harmful act that causes the victim to suffer from some form of injury and it does not only include physical injury but also includes psychiatric injury see R v Burstow (1997) and R v Ireland (1998)
Assault is a prerequisite to obtaining a s47 conviction. Assault is defined as the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be committed without giving due thought to the impact that it would have on the victim.
In order to convict for assault the prosecution does not have to proof or establish physical injury and therefore it stands to reason that in order to obtain a conviction under s.47 of the Offences Against the Person Act (1861) the prosecution does not need to proof or establish physical injury either and it gives the prosecution some scope to convict defendants for causing or precipitating psychiatric illnesses.
A conviction under s47 of the Offences Against Person Act (1861) is more serious that a conviction for assault (assault is a summary offence). The maximum sentence for a s.47 conviction is 7 years whereas the maximum sentence for an assault is only 6 months.
However a s.47 offence is considered a less serious offence when compared to a s18 or a s20 offence of the Offences Against Person Act (1861). Whether an act will amount to an assault or otherwise depends on the facts see R v Wilson (1955).
It is also possible to substitute a s.20 conviction of the Offences Against Person Act 1861 with a s.47 conviction see R v Bollom (2004).
The mens rea (mental element) for a s.47 offence is either –
The test to determine whether the defendant intended to cause the victim some harm or was reckless as to whether some harm was caused or not is objective and the defendant need not foresee the consequences of his actions. It suffices that the injuries that resulted were a natural and probable consequence of the defendant’s actions.
In R v Roberts (1971) the defendant and the victim met at a party. Once the party was over the defendant offered to give the victim a lift in his car which the victim accepted and while they were on the road the defendant made sexual advances at the victim which the victim spurned or rejected. When the defendant did not stop the victim jumped out of the moving car and sustained cuts, bruisers, and other minor injuries. The defendant was charged with assault occasioning actual bodily harm and sexual assault. He was convicted for assault occasioning actual bodily harm and found not guilty of sexual assault. The defendant appealed on the grounds that he did not foresee or could not foresee the consequences of his actions or the victim’s reaction.
It was held that foresight of consequences is not a prerequisite to obtaining a conviction for a s.47 offence. It suffices that the victim’s reaction was a natural and probable consequence of the defendant’s actions.
In R v Venna (1975) the defendant and his friends were causing a ruckus, shouting, yelling, and banging trashcan lids together at 3 am in the morning. Their conduct caught the attention of a police officer who ordered them to stop but they refused. The police officer then proceeded to arrest them, but the defendant resisted, and the police officer called for backup. The defendant continued to resist arrest, and it eventually took three police officers to restrain the defendant who was pulling away, lashing out with his hands, and kicking wildly.
While arresting the defendant one of the police officers was injured as a result of the defendant’s actions and a bone in his hand was fractured. The defendant was charged and convicted.
The defendant appealed on the grounds that recklessness in itself was not sufficient for a conviction and the prosecution must establish intention i.e. a deliberate act that was done to injure the police officer citing R v Lamb (1967), where two boys got their hands on a revolver and one boy pointed the revolver at the other not realizing that there was a bullet in the chamber and pulled the trigger. The boy was tried for unlawful act manslaughter and the court held that there was no unlawful act.
The facts of R v Lamb (1967) can be distinguished from the facts in R v Venna (1975). In R v Lamb (1967) both the defendant and the victim were minors and in R v Venna (1975) both the defendant and the victim were adults. Some exceptions may be made for minors.
Secondly the boys were clearly fooling around, and their actions can be construed as frivolous or horseplay, though that in itself is not a defense on a charge of involuntary manslaughter, where the defendant points the gun and pulls the trigger see R v Jones (1874).
However, as a general rule in order to convict for unlawful act manslaughter the act must be above something that is construed as frivolous or horseplay see R v Church (1965).
In R v Venna (1975) it is clear that the defendant was not fooling around, and he did intent to resist arrest and did so by pulling away, lashing out with his hands and kicking and while doing so or while trying to resist arrest he injured a police officer.
The conviction was upheld, and it was decided that the defendant need not intend to harm the victim or cause him or her some form of injury. It sufficed that the injury was a likely and probable consequence of the defendant’s actions.
In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH) as per s47 of the Offences Against Person Act (1861). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence.
On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed, and the judge decided that in order to convict for Caldwell recklessness the accused must have some appreciation of the risk.
It is clear that the Caldwell test is too broad and widens the scope of liability and the judge in R v Spratt (1990) recognizing the dangers of the Caldwell test has tried to limit or restrict its scope by looking at the accused’s state of mind at the time he committed the act.
The actus reus (physical element) that needs to be established to obtain a conviction for a s47 offence is usually assault and battery but assault per se would suffice as long as it was done repeatedly and done with the intention to intimidate the victim see R v Burstow (1997) and R v Ireland (1998).
Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence.
Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: –
“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”.
However in order for the defendant to be guilty of battery the act must be unlawful. A defendant has a valid excuse to use force:-
When he or she is trying to defend himself or herself. At common law anyone is allowed to use reasonable force to protect himself or herself.
When the defendant is trying to prevent a crime as per s.3 (1) of the Criminal Law Act 1967. The act reads as follows:-
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.
What amounts to reasonable force is a question of fact and it is for a court or a jury to decide.
While the victim can be found guilty of causing or precipitating a psychiatric illness under s47 of the Offences Against Person Act (1861) see R v Burstow (1997) and R v Ireland (1998) he or she cannot be found guilty under s47 of the Offences Against Person Act (1861) for causing nervous shock for example in situations like that of Bourhill v Young (1943).
In R v Chan Fook (1994) the defendant had accused the victim of stealing his fiancé’s ring. The defendant after striking the victim several times, locked him in a second-floor room. The victim fearing that the defendant might return and hit him again, tried to escape through a window and as a result sustained injury. The defendant was charged under s47 of the Offences Against Person Act (1861) for causing him fear and panic. According to the direction given by the trail judge (first instance) to the jury, ABH or actual bodily harm includes inducing panic and hysteria. The defendant was convicted and appealed the conviction.
On appeal in was decided that panic and hysteria or inducing or, precipitating a situation that sends the victim into panic and shock, for example where the victim suffers from shock after witnessing a terrible accident, do not fall under s47 of the Offences Against Person Act.
Psychiatric illness is different from nervous shock in that the victim succumbs to a psychiatric illness after being constantly and repeatedly harassed by the defendant whereas with nervous shock there is no harassment involved and the victim succumbs to nervous shock after witnessing what is often a horrible and terrible accident, and it normally occurs on the spot or just after the mishap see Alcock v Chief Constable of South Yorkshire (1992) and White v Chief Constable of South Yorkshire (1998).
For the purposes of s47 of the Offences Against the Person Act (1861) actual bodily harm is defined as any act that causes a break in the continuity of the skin see JJC v Eisenhower (1984), any acts that precipitate or induce a psychiatric illness see R v Burstow (1997) and R v Ireland (1998) and it also includes any act that falls within the ordinary meaning of the term “actual bodily harm” which includes causing cuts, bruises, lacerations etc. to another.
It also includes acts that may seem trivial to others but impacts the victim’s emotional well-being for example the cutting-off of the victim’s hair without the consent of the victim.
In DPP v Smith (2006) the defendant went over to his ex-girlfriend’s house and cut off her pony tail with a pair of kitchen scissors and while there was no physical injury or there was no break in the continuity of the skin, the victim was distressed, and the defendant was charged with occasioning actual bodily harm. At first instance the magistrate concluded that there was no actual bodily harm (ABH) and the DPP appealed.
On appeal it was decided that the cutting-off of another’s hair, without the person’s consent, does constitute an offence that falls under s47 of the Offences Against the Person Act (1861).
As long as it is regarded or considered to be part of the body regardless of whether it is on the surface of the skin or beneath the surface of the skin, on the head or on the scalp, regardless of whether the tissue is alive or dead, any damage to it will fall under s47 of the Offences Against the Person Act (1861).
Furthermore, a person’s hair is regarded as an integral part of a person’s identity and it is intrinsic to who the person is and how that person wants to be perceived by others and to cause damage to it (the hair) is to cause damage to not only the person but also to the person’s identity.
Copyright © 2019 by Dyarne Jessica Ward