• [43] This means that sections 227 and 228 of the Criminal Justice Act 2003 (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.

• And in reference to vulnerable victims such as children: There may be exceptional cases where the injuries suffered by a victim are not serious and would usually amount to
  Common Assault but due to the presence of significant aggravating features (alone or in combination), they could more appropriately be charged as ABH contrary to section 47 of the Offences Against the Person Act 1861.

• ABH should generally be charged where the injuries and overall circumstances indicate that the offence merits clearly more than six months; imprisonment and where the prosecution
  intend to represent that the case is not suitable for summary trial.”

• [9] Ireland The common law offence of assault occasioning actual bodily harm was abolished,[10] and section 47 of the Offences against the Person Act 1861 was repealed,[11]
  on a date three months after 19 May 1997.

• [40] 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 2003, 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.

• [7] South Australia[edit] 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).

• [37] 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.

• [41] Assault occasioning actual bodily harm is a specified offence for the purposes of chapter 5 of the Criminal Justice Act 2003 because it is a specified violent offence.

• Although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term “battery” and is a term
  used to mean the actual intended use of unlawful force to another person without his consent.

• at para 19-197: “Bodily harm has it ordinary meaning and includes any hurt (our emphasis) or injury calculated to interfere with the health or comfort of the victim: such
  hurt or injury need not be permanent, but must be more than merely transient or trifling … Actual bodily harm is capable of including psychiatric injury but it does not include mere emotion, such as fear, distress or panic …” In DPP v.
  Smith (Michael Ross),[32] Judge P. said: “Actual”, as defined in the authorities, means that the bodily harm must not be so trivial or trifling as to be effectively without significance.

• The second form of assault referred to is the offence described as common assault in section 39 of the Criminal Justice Act 1988, which is also known as psychic assault or
  simply assault.

• Actual bodily harm[edit] Main article: Bodily harm In Rex v. Donovan,[25] Swift J., in delivering the Judgement of the Court of Criminal Appeal, said: For this purpose, we
  think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor.

• It is necessary to consider the two forms which an assault may take.

• R v Chan-Fook also followed the case of R v Metharam,[30] in which Ashworth J had said: It is a misdirection to adopt the old formula and invite a jury to find a man accused
  of wounding with intent to do grievous bodily harm guilty if the only intent established is one to interfere seriously with the health or comfort.

• In R v. Miller [1954] 2 All ER 529, [1954] 2 QB 282, Lynskey J. said: According to Archbold’s Criminal Pleading, Evidence and Practice, 32nd ed, p 959: “Actual bodily harm
  includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor…” However the House of Lords rejected this definition in DPP v. Smith,[28] a case of grievous bodily harm in which the trial judge had described
  grievous bodily harm as “some harm which will seriously interfere for a time with health or comfort.”

• He went on to say: The danger of any elaboration of the words of the statute is that it may have the effect, as was pointed out by the House of Lords, of altering, or at the
  least distracting the Jury from, the ordinary meaning of the words.

• This would only be where a sentence clearly in excess of six months’ imprisonment ought to be available, having regard to the significant aggravating features.

• The CPS also previously said that, by way of example, it considered 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 assault and ought normally to be prosecuted under section 47: • The loss or breaking of a tooth or teeth • Extensive or multiple bruising • A displaced broken nose • Minor fractures 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 reus of assault occasioning actual bodily harm.

• said of the expression “actual bodily harm”, in contending that it should be given its ordinary meaning: We consider that the same is true of the phrase “actual bodily harm”.

• 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.

• Republic of Ireland[edit] Section 3 of the Non-Fatal Offences against the Person Act 1997 (No.26) creates the offence of assault causing harm.

• [20] 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: Was it [the action of the victim which resulted in actual bodily harm] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence
  of what he was saying or doing?

• As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so “daft” in the words of the appellant in this case,
  or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned
  by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.

• 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.

• CPS charging standards[edit] The Crown Prosecution Service has revised the guidance in its publication “Offences Against the Person, Incorporating the Charging Standard” due
  to the enactment of section 58 of the Children Act 2004 which provides that reasonable chastisement is not a defence to the offence of assault occasioning actual bodily harm.

• Assertions at that time that minor injuries to children could be charged as actual bodily harm were withdrawn in 2011.

• Lord Lane said: “Assault” in the context of this case, that is to say using the word as a convenient abbreviation for assault and battery, is an act by which the defendant,
  intentionally or recklessly, applies unlawful force to the complainant.

• It was held that section 47 did not require proof of recklessness in relation to the “occasioning”.

• [42] 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.

• The CPS previously advised that an assault which resulted in nothing more than grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin, superficial
  cuts or a black eye should be prosecuted as a common assault in the absence of aggravating factors other than injury.

• Visiting Forces[edit] In England and Wales and Northern Ireland, assault occasioning actual bodily harm is an offence against the person for the purposes of section 3 of the
  Visiting Forces Act 1952.

• 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.

• [5][6] New South Wales[edit] The offence is created by section 59(1) of the Crimes Act 1900 (a different statute of the same name).

• The second form of assault is an act causing the victim to apprehend an imminent application of force upon her: see Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B.

• There will be a risk that language will be used which suggests to the Jury that it is sufficient that the assault has interfered with the heath or comfort of the victim, whether
  or not any injury or hurt has been caused.

• The court in DPP v Parmenter ruled that, for this offence, …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.

• [14] Fagan v Metropolitan Police Commissioner was decided under section 51 of the Police Act 1964, which also used the word “assault” without further explanation and without
  any explicit reference to battery.

• Australia[edit] South Australia’s section 20(4) of the Criminal Law Consolidation Act 1935 creates the offence of assault causing harm.

• Further, as can be seen from the summing-up in the present case, there may be an elision of the need to show some harm or injury.

• James J. said: An assault is any act which intentionally—or possibly recklessly—causes another person to apprehend immediate and unlawful personal violence.

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

• Canada[edit] Section 267(b) of the Canadian Criminal Code creates the offence of assault causing bodily harm.

• [22] The book “Archbold” says that this test applies to any case where the injury was not the direct result of the defendant’s act.

• 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.

• 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 1948.

• Australia Anything interfering with the health or comfort of victim which is more than merely transient or trifling has been held by Australian courts to be “actual bodily
  harm”.

• [3][4] Australian Capital Territory[edit] The offence is created by section 24(1) of the Crimes Act 1900.

 

Works Cited

[‘R v Harrow JJ. ex p. Osaseri [1986] QB 589, 81 Cr App R 306, [1985] 3 WLR 819, [1985] 3 All ER 185, [1985] Crim LR 784, DC
2. ^ Richard Card said this is a form of aggravated assault; see Card, Cross and Jones: Criminal Law, 12th ed, 1992, paragraph
10.17 at page 182.
3. ^ R v Donovan [1934] 2 KB 498; (1934) 5 New Zealand Police Law Reports 247
4. ^ R v McIntyre [2009] NSWCCA 305, Court of Criminal Appeal (NSW, Australia).
5. ^ Crimes Act 1900 (ACT) s 24 Assault occasioning actual bodily
harm.
6. ^ ACT Parliamentary Counsel (1 September 2016). Crimes Act 1900 A1900-40 Republication No 107 (PDF). Australian Capital Territory.
7. ^ Crimes Act 1900 (NSW) s 59 Assault occasioning actual bodily harm.
8. ^ “South Australia Criminal
Law Consolidation Act 1935” (PDF). www.legislation.sa.gov.au. Archived from the original (PDF) on 2008-08-09.
9. ^ Offences against the Person Ordinance section 39
10. ^ The Non-Fatal Offences against the Person Act 1997, section 28(1)(b) [1]
11. ^
The Non-Fatal Offences against the Person Act 1997, section 31 [2] and Schedule [3]
12. ^ The Non-Fatal Offences against the Person Act 1997, section 32(2)
13. ^ “Penal Code”.
14. ^ Archbold Criminal Pleading, Evidence and Practice, 2009 edition,
at paragraph 19-195. Thomson/Sweet & Maxwell, London, 2009
15. ^ Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 at 444D to E, [1968] 3 All ER 442 at 445
16. ^ R v Williams (Gladstone), (1983) 78 Cr App R 276, [1984] Crim LR 163, CA (28
November 1983)
17. ^ R v Williams (Gladstone), (1983) 78 Cr App R 276 at 279, CA (28 November 1983)
18. ^ R v Ireland, R v Burstow [1998] 1 Cr App Rep 177, [1997] 3 WLR 534, [1998] AC 147, [1997] 4 All ER 225, The Times (1997) 25 July 1997, HL
19. ^
R v Roberts (1971) 56 Cr. App. R. 95, CA
20. ^ This is how the facts are described in R v Savage
21. ^ R v Roberts (1971) 56 Cr. App. R. 95 at 102, CA
22. ^ R v Savage, DPP v Parmenter, p. 14
23. ^ Archbold Criminal Pleading, Evidence and
Practice, 1999, paragraph 19-195 at page 1612
24. ^ R v Savage, DPP v Parmenter [1992] 1 AC 699, [1991] 3 WLR 914, [1991] 4 All ER 698, (1991) 94 Cr App R 193, [1992] Crim LR 288, HL
25. ^ Rex v. Donovan [1934] 2 KB 498, 25 Cr App R 1, 30 Cox
187, 50 TLR 566, CCA
26. ^ Rex v. Donovan [1934] 2 KB 498 at 509, CCA
27. ^ R v. Brown (Anthony) [1994] 1 AC 212
28. ^ DPP v. Smith [1961] AC 290
29. ^ R v. Chan-Fook [1994] 2 All ER at 557D
30. ^ R v Metharam 45 Cr App R 304
31. ^ R v.
Morris (Clarence Barrington) [1998] Cr. App. R. 386 at 393
32. ^ DPP v. Smith (Michael Ross) [2006] EWHC 94 (Admin), [2006] 2 Cr App R. 2, DC
33. ^ DPP v Smith (Michael Ross) [2006] 2 Cr App R 2 at paragraph 17, DC
34. ^ Glanville Williams.
Textbook of Criminal Law. First Edition. Stevens & Sons. London. 1978. Page 154. Google Books.
35. ^ Ormerod, D. Smith and Hogan’s Criminal Law. Thirteenth Edition. Oxford University Press. 2011. Page 620. The guidance was located at www.cps.gov.uk/legal/l_to_o/offences_against_the_person/#P48_1458.
36. ^
Glanville Williams, Textbook of the Criminal Law, 2 ed., 1983 p.192
37. ^ Smith&Hogan (2008). Criminal law text and materials (3rd ed.). OUP, New York, p.608
38. ^ The Magistrates’ Courts Act 1980 (c.43), section 17(1) and Schedule 1, paragraph
5(h)
39. ^ The Offences against the Person Act 1861 (24 & 25 Vict. c.100), section 47; the Penal Servitude Act 1891 (54 & 55 Vict. c.69), section 1(1); the Criminal Justice Act 1948 (11 & 12 Geo.6 c.58), section 1(1)
40. ^ The Magistrates’ Courts
Act 1980 (c.43), section 32(1)
41. ^ The Criminal Justice Act 2003, section 163; this power was previously created by section 30(1) of the Powers of Criminal Courts Act 1973 and then by section 127 of the Powers of Criminal Courts (Sentencing) Act
2000
42. ^ The Criminal Justice Act 2003, section 224(1) as read with section 224(3) and paragraph 20 Part 1 of Schedule 15
43. ^ The Criminal Justice Act 2003, section 224(2)
44. ^ The Criminal Justice Act 2003, sections 227(1) and 228(1)(a)
and (b)(i)
45. ^ Crown Prosecution Service Sentencing Manual Archived 2010-02-09 at the Wayback Machine
46. ^ R v. Sharpe [1999] EWCA Crim 964 (13 April 1999), [2000] 1 Cr App R (S) 1
47. ^ R v. Byrne [1999] EWCA Crim 1892 (29 June 1999), [2000]
1 Cr App R (S) 282
48. ^ The Offences against the Person Act 1861 (24 & 25 Vict. c.100), section 47; as amended by the Criminal Justice (No.2) (Northern Ireland) Order 2004 (SI 2004/1991 (N.I.15)), article 4(2)(a)
49. ^ The Magistrates’ Courts
(Northern Ireland) Order 1981 (No.1675 (N.I.26)), article 46(4)
50. ^ The Visiting Forces Act 1952, section 3(6) and Schedule, paragraph 1(b)(i)
Photo credit: https://www.flickr.com/photos/13020283@N03/7166554924/’]