Assault and Battery

Assault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the United States, England and Wales, assault refers only to the threat of violence caused by an immediate show of force. The actual violence is battery, though this charge doesn't exist in all states and provinces. Simple assaults that do not involve any aggravation such as use of a deadly weapon are distinguished from aggravated assaults.

Assault is often defined to include not only violence, but any physical contact with another person without their consent. When assault is defined like this, exceptions are provided to cover such things as normal social behavior (for example, patting someone on the back).^{[citation needed]}

English law makes distinctions based on the degree of injury, between:

• common assault (which includes even the most minor assault)
• assault occasioning actual bodily harm (ABH)
• assault occasioning grievous bodily harm (GBH)

In most jurisdictions, an assault occasioning grievous bodily harm (or its equivalent) may amount to murder in certain circumstances.

American jurisprudence

American common law has traditionally defined assault as an attempt to commit a battery.

Assault is typically treated as a misdemeanor and not as a felony (unless it involves a law enforcement officer). The more serious crime of aggravated assault is treated as a felony.

Four elements were required at common law:

1. The apparent, present ability to carry out;
2. An unlawful attempt;
3. To commit a violent injury;
4. Upon another.

As the criminal law evolved, element 1 was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states.

Modern American statutes define assault as:

1. an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or,
2. negligently causing bodily injury to another with a deadly weapon.

Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.

States vary whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.

In some states, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor.

Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See H.R. 1997 / P.L. 108-212

Example

Two men wave metal pipes threateningly at each other in an alley. They are ten feet away from each other. When one man advances, the other retreats, maintaining the distance between them. The police come and break up the disturbance. They charge each man with assault.

The men would probably not be found guilty in an American common law jurisdiction. Being ten feet away does not make it likely or apparent that he would have the present ability to carry out an unlawful act.

However, they may be found guilty in a modern American jurisdiction. Each man is trying to cause bodily injury to another and the fear of bodily injury is reasonable.

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Some possible examples of defenses, mitigating circumstances, or failures of proof are:

• A defendant could argue that since he was drunk, he could not form the specific intent to commit assault. This defense would most likely fail since only involuntary intoxication is accepted as a defense in most American jurisdictions.
• The defendants could also argue that they were engaged in mutually consensual behavior.

Aggravated assault

Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person:

• attempts to cause serious bodily injury to another person; or
• causes such injury purposely, knowingly, or recklessly in circumstances where the person has exhibited indifference to human life; or
• attempts or causes bodily injury to another person with a deadly weapon.

Aggravated assault is usually differentiated from simple assault by the offender's intent (i.e., to murder, to rape etc.), the extent of the injury to the victim, or the use of a deadly weapon, although legal definitions vary between jurisdictions. Sentences for aggravated assault are generally more severe, reflecting the greater degree of harm or malice intended by the perpetrator.

General defenses to assaults

Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:

Consent

Consent may be a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe, as long as there is no legally recognised good reason for the assault.. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognised good reasons for consent include; surgery, activities within the rules of a game (Burnes), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognised as a defence of consent.

Arrest and other official acts

Police officers and court officials have a general power to use force for the purpose of effecting an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary. However in Scottish Law, consent is not a defense for assault.

Punishment

In some jurisdictions, caning and other forms of corporal punishment are a part of the culture. Evidently, if it is a state-administered punishment, e.g. as in Singapore, the officers who physically administer the punishment have immunity. Some states also permit the use of less severe punishment for children in school and at home by parents. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.

Self-defense

Self defense and defense of others may be defenses to liability. They usually require that force was necessary and the degree of force was reasonable.

Prevention of crime

This may or may not involve self defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.

Defense of property

Some states allow force to be used in defense of property, to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help.

See also

• Affray
• Battery (crime)
• Assault (tort)
• Street fighting
• Domestic violence
• Gay-bashing
• Hate crime
• Mayhem
• Misdemeanor
• Offences Against The Person Act 1861
• Terroristic Threats

External links

• Crime prevention: theory & practice
• H.R. 1997 / P.L. 108-212 Unborn Victims of Violence Act of 2004

Tort is a legal term that means a civil wrong, as opposed to a criminal wrong, that is recognized by law as grounds for a lawsuit. Unlike voluntarily assumed obligations on the parties created through a contract, the duties imposed under tort law are mandatory for all citizens in that jurisdiction. Somebody behaves 'tortiously' when they harm other people's bodies, property, or legal rights, or breach a duty owed under statutory law.

Categories of torts

The dominant action in tort is negligence, which is used to protect people's bodies and property, including non tangible economic interests. There are certain torts that specially protect land, such as nuisance, which is strict liability for neighbours who interfere with another's enjoyment of their property. Trespass allows owners to sue for intentional incursions by people on their land. There is a tort for false imprisonment, and a tort for defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another. There are statutory torts, creating product liability and sanctions against anti-competitive companies. The foundation of labour law in the modern welfare state also begins with tort, as a means to mitigate conflictual relations between unions and employers. And now the scope of tort law's application spreads every day. As Lord MacMillan said, in tort's most famous case, "the categories of negligence are never closed".

Negligence

A decomposed snail in Scotland was the humble beginning of the modern law of negligence

Negligence is a tort which targets a breach of duty by one person to another. One well-known case is Donoghue v. Stevenson where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, United Kingdom. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. As such neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. The manufacturer was Mr. Stevenson, whose ginger beer business Mrs. Donoghue sued for her consequent illness. The members of the House of Lords agreed that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan, as above, thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbour. He quoted the Bible in support of his argument, specifically the general principle that "thou shalt love thy neighbour." Thus, in the world of law, he created the doctrine that we should not harm our neighbours. The elements of negligence are:

• A duty of care
• Breach of that duty
• Breach causing harm in fact
• Breach being a proximate or not too remote a cause, in law

Statutory torts

A statutory tort is like any other, by imposing duties on private parties, except that they are created by the legislature, not the courts. One example is in consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the 'cheapest cost avoiders', because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects.

Another example is the Occupiers' Liability Acts in the UK whereby a person, such as a shopowner, who invites others onto land, or has trespassers, owes a minimum duty of care for people's safety. One early case was Cooke v Midland Great Western Railway of Ireland, where Lord MacNaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity. Statutory torts also spread across workplace health and safety laws and health and safety in food produce.

Nuisance

The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell (1629). A brewery made stinking vapors waft to neighbours' property, damaging his papers. Because he was a landowner, the neighbour sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbour's documents were risked. He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor." Nowadays, interfering with neighbours' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property.

A subset of nuisance is known as the rule in Rylands v. Fletcher where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's reservoirs.

Defamation

File:Big mcspotlaunch.jpg

The "McLibel" two were involved in the longest running case in UK history for publishing a pamphlet criticising McDonald's restaurants

Defamation means tarnishing the reputation of someone. It is divided into two parts, slander and libel. Slander is spoken defamation and libel is defaming somebody through print (or broadcasting). Both share the same features. To defame someone, you must (a) make a factual assertion (b) for which you cannot provide evidence of its truth. Defamation does not affect the voicing of opinions, but comes into the same fields as rights to free speech in the United States Constitution's First Amendment, or the European Convention's Article 10. Related to defamation in the US are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.

Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion.

Economic torts

Strikers gathering in Tyldesley in the 1926 General Strike in the U.K.

Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon."

Two cases demonstrated economic tort's affinity to competition and labour law. In Mogul Steamship Co. Ltd. the plaintiffs argued they had been driven from the Chinese tea market by a 'shipping conference', that had acted together to underprice them. But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade." Nowadays, this would be considered a criminal cartel. In labour law the most notable case is Taff Vale Railway v. Amalgamated Society of Railway Servants. The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906 Further torts used against unions include conspiracy, interference with a commercial contract or intimidation.

Through a recent development in common law, beginning with Hedley Byrne v Heller in 1964, and further through the Misrepresentations Act 1967, a victim of the tort of misrepresentation will be compensated for purely economic loss due to the misconception of the terms of the contract.

Competition law

Modern competition law is an important method for regulating the conduct of businesses in a market economy. A major subset of statutory torts, it is also called 'anti-trust' law, especially in the US Articles 81 and 82 of the Treaty of the European Union, as well as the Clayton and Sherman Acts in the U.S. create duties for undertakings, corporations, businesses, to not distort competition on the market. Cartels are forbidden on both sides of the Atlantic. So is the abuse of market power by monopolists, or the substantial lessening of competition through a merger, acquisition, or concentration of enterprises. A huge issue in the E.U. is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct.

Liability, defenses, and remedies

Vicarious liability

The word 'vicarious' derives from the Latin for 'change' or 'alternation' or 'stead' and in tort law refers to the idea of one person being liable for the harm caused by another, because of some legally relevant relationship. An example might be a parent and a child, or an employer and an employee. You can sue an employer for the damage to you by their employee, which was caused 'in the course of employment'. For example, if a shop employee spilled cleaning liquid on the supermarket floor, one could sue the employee who actually spilled the liquid, or sue the employers. In the aforementioned case, the later option is more practical as they are more likely to have more money. The law replies "since your employee harmed the claimant in the course of his employment, you bear responsibility for it, because you have the control to hire and fire him, and reduce the risk of it happening again." There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation.

Defences

Finding a successful defence absolves the defendant from full or partial liability for damages, which makes them valuable commodities in the court. There are three main defences to tortious liability.

Volenti non fit injuria

This is Latin for "to the willing, no injury is done". It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a regular spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. A slightly more limited defense may arise where the defendant has given a warning, whether expressly to the plaintiff/claimant or by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. This is an issue of policy as to whether defendants should not only warn of a known danger, but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.

Contributory negligence

This is either a mitigatory defence or, in the United States, it may be an absolute defence. When used as a mitigatory defence, it is often known in the US as comparative negligence. Under comparative negligence a plaintiff/claimant's award is reduced by the percentage of contribution made by the plaintiff to the loss or damage suffered. Thus, in evaluating a collision between two vehicles, the court must not only make a finding that both drivers were negligent, but it must also apportion the contribution made by each driver as a percentage, e.g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80% to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then reduce the amount paid to the plaintiff/claimant by 20%. In all but four states in the US, if the defendant proves both that the plaintiff/claimant also acted negligently and that this negligence contributed to the loss or damage suffered, this is a complete defence.

This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing from a more egregiously irresponsible defendant. In all but four US states, it has been replaced judicially or legislatively by the doctrine of comparative negligence. Comparative negligence has also been criticized, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant, and often more when a jury is feeling sympathetic. Economists have further criticized comparative negligence, since under the Learned Hand Test it will not yield optimal precaution levels.

Illegality

Ex turpi causa non oritur actio is the illegality defence, the Latin for "no right of action arises from a despicable cause". If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention.

Remedies

The main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions will not impose positive obligations on tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.

Theory and reform

In The Aims of the Law of Tort (1951), Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation. The differences in types of available damages represents some of the conflicting aims that scholars and lawyers wish to hoist onto tool of tort. From the late 1950s there grew a school of economists-cum-lawyers who emphasized incentives and deterrence, the aim of tort being an efficient distribution of risks in the law. Ronald Coase thought, in his article 'Problem of Social Cost' (1961), that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized. Calls for reform come from different directions, according to the purposes people think tort should have.

In New Zealand, the government in the 1960s established a no-fault system of state compensation for accidents. Proposals have been the subject of Command Papers in the UK and all the academic interest that would be expected. There is also an important question surrounding pure economic loss and public body liability, what is the right balance between fault and policy. Because of all people who have accidents, only some can find solvent defendants in tort accidents, P.S. Atiyah has called the situation a Damages Lottery. In the U.S. calls for reform have tended to be for drastic limitation on the scope of tort law, a minimisation process on the lines of economic analysis. Anti-trust damages have come into special scrutiny, and many people believe the availability of punitive damages generally are a strain on the legal system. Furthermore, the 'right to a jury' in the U.S. is believed to have fostered a litigation culture, increasing the cost and length of trials.

Tort and criminal law

There is some overlap between crime and tort, since tort, a private action, used to be used more than criminal laws in centuries gone. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person — although often criminal courts do have power to grant such remedies — but to remove their liberty on the state's behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.

Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with actually criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element — for example, public nuisance — and sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim. See also Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 Tenn. L. Rev. 177 (2006).

Tort by legal jurisdiction

Legal jurisdictions whose legal system developed from the English common law have the concept of tortious liability. There are technical differences from one jurisdiction to the next in proving the various torts. For the issue of foreign elements in tort see Tort and Conflict of Laws.

• Australian tort law
• Canadian tort law
• English tort law
• Scots tort law
• United States tort law

Etymology

Middle English, "injury", from Anglo-French, from Medieval Latin tortum, from Latin, neuter of tortus "twisted", from past participle of torquēre.

See also

• List of tort topics
• List of tort cases
• Tort reform

Further reading

• Simon Deakin, Angus Johnston and Basil Markesinis, Tort Law (2003) 5th Ed. Oxford University Press, ISBN 0-19-925711-6
• Mark Lunney, Ken Oliphant, Tort Law - Texts, Cases (2003) 2nd Ed. Oxford University Press, ISBN 0-19-926055-9

External links

• UK Tort Law Cases
• UK Tort Law Study Guide

In many common law jurisdictions, the crime of battery involves an injury or other contact upon the person of another in a manner likely to cause bodily harm.

Battery is often broken down into gradations for the purposes of determining the severity of punishment. For example:

• Simple battery may include any form of non-consensual, harmful or insulting contact, regardless of the injury caused. Criminal battery requires an intent to inflict an injury on another, as distinguished from a tortious battery.
• Sexual battery may be defined as non-consensual touching of the intimate parts of another.
• Family violence battery may be limited in its scope between persons within a certain degree of relationship: statutes with respect to this offense have been enacted in response to increasing awareness of the problem of domestic violence.
• Aggravated battery is generally regarded as a serious offense of felony grade, involving the loss of the victim's limb or some other type of permanent disfigurement of the victim. As successor to the common law crime of mayhem, this is sometimes subsumed in the definition of aggravated assault.

In some jurisdictions, battery has recently been constructed to include directing bodily secretions at another person without their permission. In some jurisdictions this automatically is considered aggravated battery.

As a first approximation to the distinction between battery and assault:

• the overt behavior of an assault might be A advancing upon B by chasing after him and swinging a fist at his head, while
• that of an act of battery might be A actually striking B.

Within United States law, in most jurisdictions, the charge of criminal battery requires evidence of a mental state (mens rea). This charge, is non-existent in some states though.

England and Wales

Under the Criminal Justice Act (1988), a battery is defined as "the unlawful application, intentionally or recklessly of unlawful force", where:-

• "intentional" = The culprit foresaw the outcome and wanted that to happen.
• "recklessly" = The culprit knew that by doing something there could be a certain outcome and went on to do that act regardless (The conscious taking of an unjustified risk).
• "inflicts" = The act is completed.
• "unlawful" = The culprit had no right in law to do the act.
• "personal" = The victim was a human (not an animal).
• "violence" = The complainant has to perceive that this is violence not mere touching.

This can range from gentle touches which can be construed as being threatening or sexual to punches or kicks and can include indirect actions such as leaving traps.

See also

• Actual bodily harm
• Battery (tort)
• Grievous bodily harm
• Beating up

Actual Bodily Harm (often abbreviated to ABH) is a type of criminal assault defined under English law. It encompasses those assaults which result in injuries, typically requiring a degree of medical treatment of the victim. The offence is defined in S-47 Offences Against The Person Act 1861 and it is a hybrid offence, i.e. it can be tried in either the Magistrates' Court or Crown Court. There is a maximum sentence of 5 years imprisonment (or 7 years if it is racially motivated).

The offence

In English law, there is a range of non-fatal offences of varying degrees of severity beginning with 'common assault' (the least serious), 'assault occasioning actual bodily harm' (ABH), and the most serious assaults resulting in grievous bodily harm' (GBH).

Assault

For there to be an assault, the victim must either "apprehend" the application of physical force, i.e. anticipate that a battery is about to occur, or experience a battery without warning. In Fagan v MPC [1969] 1 QB 439 a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman’s foot and, when asked to remove the car, said "Fuck you, you can wait" and turned off the ignition. Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault. Albeit accidentally, the driver had caused the car to rest on the foot. This actus reus was a continuing state of affairs and the mens rea was formed during the relevant time (see concurrence). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete.

Occasioning

This is usually taken to mean the same as "causing" i.e. it includes both acts and omissions. In R v Roberts (1971) 56 Cr. App. R. 95 while giving a lift in his car, late at night to a girl, the defendant made unwanted sexual advances. She feared that he intended to rape her so, even though the car was moving, she opened the door, jumped out, and suffered grazes and concussion. Stephenson LJ. stated that the test for causation was whether the result was a reasonably foreseeable consequence of what the defendant was saying or doing. In R v Savage; DPP v Parmenter (1991) 4 All ER 698 Savage threw beer over the victim and, in the struggle, the glass broke and cut the victim. It was held that s47 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 s47 because the injury resulted from his intention to play with his son.

Bodily harm

The Crown Prosecution Service states that "bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling". Examples of injures that would be considered ABH include:

• Loss or breaking of teeth;
• Temporary loss of sensory function, including loss of consciousness;
• Extensive or multiple bruising;
• Displaced broken nose;
• Minor fractures of bones;
• Minor cuts requiring medical treatment.

Causing any of these injuries would constitute the "actus reus" (Latin for the "guilty act") of ABH. Grazes, minor bruising, swelling, superficial cuts or a black eye would probably be regarded as common assault. The concept of ABH was considered by the Divisional Court in DPP v Smith (Michael Ross) (2006) EWHC 94 (Admin). 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 ABH, 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 DPP, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done. Judge P said:

"In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim."

It has long been accepted that ABH 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 ABH, even if the element damaged is dead skin or tissue. As Creswell J. commented in his short concurring judgment:

"To a woman her hair is a vitally important part of her body. 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."

Non-physical injury

Non-physical or psychiatric injury can be considered ABH, although there must be medical evidence of the injury. The original legislative intent was probably restricted to physical injury because Parliament required "bodily" rather than "mental" or "emotional" harm. Hence, in R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. The court was reluctant to consider this an injury within the meaning of the Act. But, in modern times, R v Chan Fook (1994) 1 WLR 689 accepted hysteria as an injury when the defendant locked up a shoplifter who became very upset (i.e. there was some "harm"). This was followed by the Court of Appeal in R v Constanza (1997) 2 Cr. App. R. 492, and the House of Lords which confirmed the principle in R v Burstow, R v Ireland (1998) AC 147. These were a pair of cases on harassment situations before the Protection from the Harassment Act 1997 came into force. During a three month period, Ireland, who had a substantial record of making offensive telephone calls to women, harassed three women by making repeated silent or heavy breathing telephone calls to them at night. This caused his victims to suffer psychiatric illness. Similarly, Burstow could not accept the decision of a woman to terminate a relationship, so he harassed her over an eight month period by making silent and abusive telephone calls, distributed offensive cards in the street where she lived, appeared unnecessarily at her home and place of work, took surreptitious photographs of the victim and her family, and sent her a menacing letter. The victim was fearful of personal violence and was diagnosed as suffering from a severe depressive illness. The best medical practice today accepts a link between the body and psychiatric injury, so the words "bodily harm" in ss20 and 47 were capable of covering recognised psychiatric illnesses, such as an anxiety or a depressive disorder, which affect the central nervous system of the body. However, to qualify, those neuroses must be more than simple states of fear, or problems in coping with everyday life, which do not amount to psychiatric illnesses.

Mens rea

In committing an act of ABH, the "mens rea" (Latin for "guilty mind") may be one of recklessness rather than intention. The court in DPP v Parmenter ruled that, for ABH, “...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.”

Distinction between ABH and GBH

ABH is distinguished from the more serious charge of grievous bodily harm both on the level of intent required, and on the severity of the injury (self-evidently, the severity may provide evidence of the intent). The Crown Prosecution Service provide examples of factors which may indicate intent; for example: "a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; and using an offensive weapon against, or kicking the victim's head". All these examples would distinguish the crime as GBH, rather than ABH.

External links

• Crown prosecution Service

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