1B.3.2 s47 OAPA 1861

Question 1

s47 OAPA 1861

Answer 1

Assault Occasioning ABH

Question 2

What type of offence is s47 OAPA 1861?

Answer 2

Triable-either-way

Question 3

Maximum sentence for s47 OAPA 1861

Answer 3

Five years imprisonment

Question 4

Three elements of the actus reus of s47 OAPA 1861

Answer 4

• Assault
• Occasioning
• Actual bodily harm

Question 5

Unlawful force

Answer 5

The force must be unlawful. This means that the defences of consent or self-defence are particularly appropriate.

However, in Brown (1994) it was stated that in the absence of good reason, the victim’s consent is no defence to a charge under OAPA 1861 – this applies to s47, s20 and s18).

• Surgery involves intentional violence resulting in actual (or sometimes serious) bodily harm, but surgery is a lawful activity.
• Tattooing, ear-piercing and violent sports including boxing are lawful although they involve actual bodily harm activities.
• Other activities are not lawful and cannot be consented to, such as female genital mutilation.
• Some activities are considered unacceptable as a matter of public policy, which may also be considered in the relationship of law and morality.

Question 6

Brown (1994)

Answer 6

The defendants were convicted of s47 and s20, after having performed consensual acts of sado-masochism on each other and inflicted non-permanent physical injuries to each other. They had pleaded guilty after a ruling that the prosecution had not needed to prove the absence of consent.
The court stated it was not in the public interest that injuries should be allowed to be inflicted on others without good reason. Sado-masochism was not a good reason.

Question 7

Meaning of ‘assault’ in s47

Answer 7

Assault means common assault so it could be an assault or a battery. All the elements of the actus reus and mens rea of the assault or battery must be proved.

Question 8

Meaning of ‘occassioning’ in s47

Answer 8

Occasioning means causing.

It is necessary to prove that there was an assault or battery and that this caused actual bodily harm. The normal principles of causation are applied.

Question 9

Definition of Actual Bodily Harm (ABH)

Answer 9

“Any hurt or injury calculated to interfere with the health or comfort of the victim.” Miller (1954)

• ABH is the lowest level of injury.

Question 10

T v DPP (2003)

Answer 10

Loss of consciousness, even momentarily, was held to be ABH.

Question 11

What injury is needed for s47?

Answer 11

Any injury. Eg. Bruising, grazes and sczratching.

Question 12

DPP v Smith (Michael) (2006)

Answer 12

The defendant had an argument with his girlfriend. He cut off her ponytail and some hair from the top of her head without consent. He was charged with an offence under s47 of the OAPA 1861. Held: cutting the victim’s hair can amount to actual bodily harm.

• It was also held: Physical pain was not a necessary ingredient of actual bodily harm.
• A substantial amount of hair has to be cut for the harm to be “actual” as opposed to “trivial” or “insignificant” harm.

Question 13

Cases for ABH

Answer 13

T v DPP (2003) - loss of consciousness is ABH
DPP v Smith (Michael) (2006) - cutting hair is ABH
R v Chan Fook (1994) - psychiatric injury is ABH

Question 14

R v Chan Fook (1994)

Answer 14

Held: Psychiatric injury is ABH

Question 15

Psychiatric injury as ABH

Answer 15

An assault In the case of R v Chan Fook (1994), it was held psychiatric injury is ‘actual bodily harm’.

However, the Court of Appeal held that actual bodily harm does not include “mere emotions such as fear, distress or panic”.
causes ABH

Question 16

Mens rea of s47

Answer 16

• s47 makes no reference to mens rea but the courts have held that the mens rea for assault and battery is sufficient for the mens rea of a s47 offence.

Therefore the defendant must intend or be subjectively reckless as to whether the victim fears or is subjected to unlawful force.

Question 17

R v Roberts (1971)

Answer 17

D was driving a car and made advances to the girl in the passenger seat – trying to take her coat off. She feared that he was going to commit a more serious assault and jumped from the car whilst it was still moving, at around 30mph. She was injured. D was found guilty of assault occasioning ABH (s47).

Even though he had not intended any injury or realised there was a risk of injury. He intended to apply unlawful force when he touched her, as he tried to take her coat off. This satisfied them mens rea for common assault and so was found guilty under s47.

Question 18

R v Savage and Parmenter (1991)

Answer 18

D threw beer over another woman in a pub. The glass slipped from D’s hand and the victim’s hand was cut by the glass. D said she only intended the throw beer over the woman.

• D had not intended her to be injured, not had she realised that there was a risk of injury. Convicted of s47.
• The fact that she intended to throw the beer over the other woman meant she had the intention to apply unlawful force = sufficient for the mens rea of the s47 offence.