1B.3.2 s47 OAPA 1861 Flashcards
s47 OAPA 1861
Assault Occasioning ABH
What type of offence is s47 OAPA 1861?
Triable-either-way
Maximum sentence for s47 OAPA 1861
Five years imprisonment
Three elements of the actus reus of s47 OAPA 1861
- Assault
- Occasioning
- Actual bodily harm
Unlawful force
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.
Brown (1994)
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.
Meaning of ‘assault’ in s47
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.
Meaning of ‘occassioning’ in s47
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.
Definition of Actual Bodily Harm (ABH)
“Any hurt or injury calculated to interfere with the health or comfort of the victim.” Miller (1954)
- ABH is the lowest level of injury.
T v DPP (2003)
Loss of consciousness, even momentarily, was held to be ABH.
What injury is needed for s47?
Any injury. Eg. Bruising, grazes and sczratching.
DPP v Smith (Michael) (2006)
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.
Cases for ABH
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
R v Chan Fook (1994)
Held: Psychiatric injury is ABH
Psychiatric injury as ABH
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
Mens rea of s47
- 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.
R v Roberts (1971)
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.
R v Savage and Parmenter (1991)
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.
