ⓘ Assault occasioning actual bodily harm

                                     

ⓘ Assault occasioning actual bodily harm

Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.

                                     

1. 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".

Australian Capital Territory

The offence is created by section 241 of the Crimes Act 1900.

New South Wales

The offence is created by section 591 of the Crimes Act 1900 a different statute of the same name.

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.

                                     

2. 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.

                                     

3. Ireland

The common law offence of assault occasioning actual bodily harm was abolished, and section 47 of the Offences against the Person Act 1861 was repealed, on a date three months after 19 May 1997.

                                     

4. United Kingdom

Visiting Forces

In England and Wales and Northern Ireland, assault occasioning actual bodily harm is an offence against the person for the purposes of section 3 of the Visiting Forces Act 1952.

                                     

4.1. 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to be imprisoned for any term not exceeding two years, with or without hard labour" omitted in the second place, were repealed by the Statute Law Revision Act 1892.

The words from "and" to the end, omitted in the third place, were repealed for England and Wales by section 1702 of, and Schedule 16 to, the Criminal Justice Act 1988 subject to section 1236 of, and paragraph 16 of Schedule 8 to, that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 12 of the Criminal Justice Act 1948.

The text of this section is slightly different in Northern Ireland.

                                     

4.2. United Kingdom Assault

The expression assault includes "battery".

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:

An assault is any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence. Although "assault" is an independent crime and is to be treated as such, for practical purposes today "assault" is generally synonymous with the term "battery" and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case the "assault" alleged involved a "battery."

In R v Williams Gladstone, the defendant was prosecuted for this offence. Lord Lane said:

"Assault" in the context of this case, that is to say using the word as a convenient abbreviation for assault and battery, is an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant.

In R v Burstow, R v Ireland, one of the defendants was prosecuted for this offence. Lord Steyn said:

The starting point must be that an assault is an ingredient of the offence under section 47. It is necessary to consider the two forms which an assault may take. The first is battery, which involves the unlawful application of force by the defendant upon the victim. Usually, section 47 is used to prosecute in cases of this kind. The second form of assault is an act causing the victim to apprehend an imminent application of force upon her: see Fagan v. Metropolitan Police Commissioner 1 Cr App R S 47

It is inappropriate for the court to sentence an offender on the basis of racial aggravation where he has been convicted of this offence, but not the racially aggravated offence: R v. McGilliviray ; R v. Kentsch.

In Northern Ireland, a person guilty of assault occasioning actual bodily harm is liable, on conviction on indictment, to imprisonment for a term not exceeding seven years, or on summary conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the prescribed sum, or to both.



                                     

4.3. United Kingdom Racially or religiously aggravated offence

In England and Wales, section 291b of the Crime and Disorder Act 1998 c.37 creates the distinct offence of racially or religiously aggravated assault occasioning actual bodily harm.

                                     

5. Derivative offences

In a number of jurisdictions this offence has been replaced by an offence which is very similar.

Australia

South Australias section 204 of the Criminal Law Consolidation Act 1935 creates the offence of assault causing harm.

Canada

Section 267b of the Canadian Criminal Code creates the offence of assault causing bodily harm.

Republic of Ireland

Section 3 of the Non-Fatal Offences against the Person Act 1997 No.26 creates the offence of assault causing harm.