Assault occasioning actual bodily harm (often abbreviated to Assault OABH, AOABH or simply ABH) is a statutoryR v Harrow JJ. ex p. Osaseri QB 589, 81 Cr App R 306, 3 WLR 819, 3 All ER 185, Crim LR 784, DC offence of aggravated assaultRichard 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. in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in Ireland and South Australia, but replaced with a similar offence.
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".R v Donovan 2 KB 498; (1934) 5 New Zealand Police Law Reports 247.
Australian Capital Territory
The offence is created by section 24(1) of the Crimes Act 1900. Assault occasioning actual bodily harm.
New South Wales
The offence is created by section 59(1) of the Crimes Act 1900 (a different statute of the same name). Assault occasioning actual bodily harm.
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).
Hong Kong The offence is created by section 39 of the Offences against the Person Ordinance. It is triable on indictment and a person guilty of it is liable to imprisonment for three years.Offences against the Person Ordinance section 39
Ireland
The common law offence of assault occasioning actual bodily harm was abolished,The Non-Fatal Offences against the Person Act 1997, section 28(1)(b) and section 47 of the Offences against the Person Act 1861 was repealed,The Non-Fatal Offences against the Person Act 1997, section 31 and Schedule on a date three months after 19 May 1997.The Non-Fatal Offences against the Person Act 1997, section 32(2) The modern offences of assault, assault causing harm, and causing serious harm were created by that Act.The Non-Fatal Offences against the Person Act 1997, sections 2-4
Solomon Islands
The offence is created by section 245 of the Penal Code (Ch.26).
United Kingdom
The offence
In England and Wales, and in Northern Ireland, the offence is created by section 47 of the Offences against the Person Act 1861:
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 1948.
The text of this section is slightly different in Northern Ireland.
Assault The expression assault includes "battery".Archbold Criminal Pleading, Evidence and Practice, 2009 edition, at paragraph 19-195. Thomson/Sweet & Maxwell, London, 2009
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. James J. said:
In R v Williams (Gladstone),R v Williams (Gladstone), (1983) 78 Cr App R 276, Crim LR 163, CA (28 November 1983) the defendant was prosecuted for this offence. Lord Lane said:
In R v Burstow, R v Ireland,R v Ireland, R v Burstow 1 Cr App Rep 177, 3 WLR 534, AC 147, 4 All ER 225, The Times (1997) 25 July 1997, HL 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 assault in section 39 of the Criminal Justice Act 1988, which is also known as psychic assault or simply assault.
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,R v Roberts (1971) 56 Cr. App. R. 95, CA the defendant gave a lift in his car, late at night, to a woman.
The woman 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 woman. 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.This is how the facts are described in R v Savage
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.R v Roberts (1971) 56 Cr. App. R. 95 at 102, CA
This passage was set out in R v Savage, DPP v Parmenter at page 14.R v Savage, DPP v Parmenter, p. 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.Archbold Criminal Pleading, Evidence and Practice, 1999, paragraph 19-195 at page 1612
In R v Savage, DPP v Parmenter,R v Savage, DPP v Parmenter 1 AC 699, 3 WLR 914, 4 All ER 698, (1991) 94 Cr App R 193, Crim LR 288, HL 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
In Rex v. Donovan,Rex v. Donovan 2 KB 498, 25 Cr App R 1, 30 Cox 187, 50 TLR 566, CCA Swift J., in delivering the Judgement of the Court of Criminal Appeal, said:
This passage was cited and approved in R v Brown (Anthony),R v. Brown (Anthony) 1 AC 212 by Lord Templeman (at p. 230) and Lord Jauncey (at p. 242).
In R v. Miller 2 All ER 529, 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,DPP v. Smith AC 290 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." The Lord Chancellor, Viscount Kilmuir QC, held:
DPP v. Smith was followed in R v. Chan-Fook.R v. Chan-Fook 2 All ER at 557D Hobhouse LJ. said of the expression "actual bodily harm", in contending that it should be given its ordinary meaning:
He went on to say:
R v Chan-Fook also followed the case of R v Metharam,R v Metharam 45 Cr App R 304 in which Ashworth J had said:
In R v. Morris (Clarence Barrington),R v. Morris (Clarence Barrington) 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):
What constitutes "actual bodily harm" for the purposes of section 47 of the 1861 Act is succinctly and accurately set out in Archbold (1997 ed.) 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),DPP v. Smith (Michael Ross) EWHC 94 (Admin), 2 Cr App R. 2, DC Judge P. said:
Glanville Williams said that actual bodily harm is a silly expression because it suggests that there is some form of bodily harm that is not actual.Glanville Williams. Textbook of Criminal Law. First Edition. Stevens & Sons. London. 1978. Page 154. Google Books.
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 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.
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.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.
The charging standard states: "The offence of Common Assault carries a maximum penalty of six months' imprisonment. This will provide the court with adequate sentencing powers in most cases. 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."