Phoney tales?

A recent Administrative Court case, DPP v Smith [2006] EWHC 94, has developed, albeit incrementally, and probably not very helpfully, the meaning of the term 'actual bodily harm' (ABH). But the case brings together several developments on the subject, and given the frequency with which the offence of assault occasioning ABH (s 47, Offence Against the Person Act 1861) falls to the average criminal solicitor to deal with, it is one that could usefully be highlighted. It is also serves as a useful reminder to CPS staff to have due regard to their own charging standards when considering the appropriate offence with which to charge a suspect.

A stock-take of the law pre-Smith

In a case of the same name, DPP v Smith [1961] AC 290, the House of Lords took the view that the term 'bodily harm' needed no explanation. Other courts have been more helpful. The combined effect of Donovan [1934] 2 KB 498 and Miller [1954] 2 QB 282 is that ''bodily harm' includes any hurt or injury calculated to interfere with the health or comfort of the [victim]' and 'such hurt or injury need not be permanent but must'¦ be more than transient and trifling'.

In Chan-Fook [1994] 1 WLR 689, the Court of Appeal stated that 'harm is a synonym for injury' (Hobhouse LJ at 694 C). Consequently, any interference with health or comfort that resulted other than from an injury would not amount to this offence. This case also made clear that the term included psychiatric injury (affirmed by the House of Lords in Ireland [1998] AC 147), although such injury must be a recognised clinical condition, and so something beyond fear, distress or panic. If psychiatric injury is alleged, it must be supported by expert evidence.

DPP v Smith [2006] EWHC 94

The victim (V) and Smith (S) had formerly been a couple. Following their estrangement, V gained access to S's bedroom where she woke him from his sleep. His response was not a measured one. Having pinned V to the bed, he then produced a pair of scissors and cut off her ponytail.

On these facts there was clearly an assault and battery, but the CPS elected to charge S with the s 47 offence. The prosecution did not suggest any psychiatric injury, for which they would have had to call expert evidence, and although the incident would have been very frightening and distressing, separately or together that does not amount to ABH. There was no evidence of any cuts or bruising. The prosecution's case in relation to the ABH suffered, therefore, had to depend simply upon the cutting of the hair. Following a successful submission of no case to answer in the magistrates' court, the Administrative Court had to decide whether this amounted to ABH.

The case raised two interesting questions. Hair is attached to the body, but is it part of it? The court took the view that 'whether it is alive beneath the surface of the skin or dead tissue above'¦ the hair is an attribute and part of the human body' (Judge P, para 18), and so the answer is, 'yes'.

Secondly, hair may be attached to the body but it is dead tissue. If you cut it, it neither bleeds nor bruises. What harm in the sense of hurt or injury (Donovan, Miller) could there have been? At this point the court took the law forward a step. The court held that in ordinary language, 'harm' is not limited to 'injury', and according to the Concise Oxford English Dictionary extends to 'hurt' or 'damage'. The court adopted this definition, therefore, adding 'damage' to the established 'hurt' or 'injury' (a nuanced difference, but still a difference. That which is animate would be hurt or injured, that which is inanimate would be damaged).

A welcome development?

There seem to be two problems with the decision. Firstly, it is in conflict with the Court of Appeal dicta in Chan-Fook that there has to be an injury. Secondly, the definition of actual bodily harm, as it stood, already set a low threshold for an offence that carries a five-year maximum prison sentence. This case sets it even lower. Will the student prank of shaving an eyebrow off a sleeping house mate now amount to a s 47 offence?

What is surprising about this case is that it ever came to be charged as a s 47 offence. In an attempt to establish consistency in the application of prosecutorial discretion, the CPS introduced charging standards. These suggest that s 47 is appropriate, for example, for loss of a tooth, temporary loss of sensory functions, extensive or multiple bruising, displaced broken nose and minor fractures. Was loss of a pony tail really a comparable injury? Did the CPS really believe that the court would have sentenced differently, had this offence been charged as a battery (s 39, CJA 1988)? Had he been found guilty, the maximum sentence of six months was surely very much more than the court would have needed to deal adequately with this offence. The loss of a conviction, the cost of an appeal and an arguably unwelcome development in the law could all have been avoided if the CPS had paid more careful regard to its own Charging Standards and the practicalities of the case.

Impact on consent

The law on consent in relation to common assault is that consent to being touched renders non-criminal that which would otherwise be an assault (a welcome kiss from a loved one is lawful, an uninvited kiss from a passing drunk is not). However, as a general principle, consent cannot make lawful the infliction of actual bodily harm unless that harm, or the risk of it, falls within one of a number of recognised exceptions (surgery; lawfully organised sports, games and exhibitions; vigorous horseplay; religious mortification; tattooing, ritual circumcision of males, and ear piercing).

While the Administrative Court did not mention it, it must follow that to that list must now be added the cutting of hair, thereby leaving lawful the extensive and socially useful business of hairdressing.