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Chapter 32: Bodily Harm

Table Of Contents 

[32.0] Introduction 

This chapter will examine the offence of 'Assault Causing Actual Bodily Harm', as provided for by section 245 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Offences Against The Person Act 1861 (UK), section 47.

[32.1] Offence 

Section 245 of the Penal Code (Ch. 26) states: 

'Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and shall be liable to imprisonment for five years.'

[32.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did unlawfully assault a person namely [specify the name of the complainant] and in doing so did cause [him/her] actual bodily harm to wit [specify the harm caused to the complainant].' 

[32.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Assault 

F. Complainant 

G. Bodily Harm

[32.4] Unlawfully

[32.4.1] Introduction 

An act or omission is 'unlawful' unless it is authorised, justified or excused by law. 

The prosecution has the burden of proving the 'unlawfulness' of the defendant's actions, see R v Williams (1984) 78 CrAppR 276 [[1984] CrimLR 163] at page 281 & R v May (1912) 8 CrAppR 63; [1912] 3 KB 572, per Lord Alverstone CJ at page 575. 

Section 235 of the Penal Code (Ch. 26) states: 

'Any person authorised by law or by the consent of the person injured to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.' 

See also: section 234 of the Penal Code (Ch. 26) – 'Surgical Operations'. 

If a complainant in trying to escape from the defendant as a consequence of what he/she said and / or did suffers injuries amounting to bodily harm, then the defendant may be guilty of an offence under section 245 of the Penal Code (Ch. 26). 

In R v Roberts (1972) 56 CrAppR 95 the Court held at page 102: 

'The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?' 

In R v Mackie (1973) 57 CrAppR 453 [[1973] CrimLR 438] Stephenson LJ, delivering the judgment of the Court, stated at page 459: 

'Where the injuries are not fatal, the attempt to escape must be the natural consequence of the assault charged, not something which could not be expected, but something which any reasonable and responsible man in the assailant's shoes would have foreseen.' (emphasis added) 

See also: Director of Public Prosecutions v Daley [1979] 2 WLR 239. 

The courts have consistently held that the mens rea of every type of offence against the person covers both actual intent and recklessness, in the sense of taking the risk of harm ensuing with foresight that it might happen, see R v Spratt (1990) 91 CrAppR 362; [1991] 2 AllER 210; [1990] 1 WLR 1073; [1990] CrimLR 797. 

The question is therefore whether the defendant considered the possibility that the complainant might have been hurt by his/her actions.

[32.4.2] Consent 

Section 235 of the Penal Code (Ch. 26) states: 

'Any person authorised by law or by the consent of the person injured to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.' 

See also: section 234 of the Penal Code (Ch. 26) – 'Surgical Operations'. 

When a complainant suffers actual bodily harm consent is no defence, unless there was a good reason for such an assault, see R v Brown (A.) [1994] 1 AC 212; [1993] 2 WLR 556; [1993] 2 AllER 75; (1993) 97 CrAppR 447. 

In Attorney – General's Reference No. 6 of 1980 (1981) 73 CrAppR 63 [[1981] QB 715; [1981] 2 AllER 1057; [1981] 3 WLR 125; [1981] CrimLR 533] Lord Widgery CJ, delivering the judgment of the Court, stated at page 66: 

'The answer to the question [, "Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?,] in our judgment, is that it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. 

Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.' [words in brackets added]

In R v Jones (T.) 83 CrAppR 375 [[1987] CrimLR 123] McCowan J, delivering the judgment of the Court, stated at page 378: 

'[C]onsent to "rough and undisciplined play" where there is no intention to cause injury, must be a defence. Secondly, […] even if consent is in fact absent, genuine belief by a defendant that consent was present would be a defence. Thirdly, […] if the belief is genuinely held, it is irrelevant whether it is reasonably held or not. Those propositions […], are, in our judgment correct.'

[32.4.3] Defence Of Person Or Property 

The law relating to the 'Defence Of Person Or Property' is examined commencing on page 451.

[32.4.4] Corporal Punishment 

In R v Rose [1987] SILR 45 Ward CJ stated at pages 50 – 51: 

'[W]hen this defence is raised, the Court must consider, on the facts, whether the punishment is reasonable and the question of whether it offends section 7 of the Constitution should be borne in mind as part of that assessment. Any infliction of corporal punishment on a child that was inhuman or degrading must, in the light of that provision, be unreasonable punishment. 

[…] 

In determining whether the conduct was degrading, the section should be interpreted in the light of present day conditions and the commonly accepted standards in this country at this time. Whilst the very old cases established the defence of reasonable correction, the generally accepted standard of what is reasonable has changed radically since then. If the manner of inflicting corporal punishment is outside the standards normally accepted and expected today, the possibility that the victim will feel humiliated is increased.' 

Section 233(4) of the Penal Code (Ch. 26) states: 

'Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person, having the lawful control of a child or young person to administer reasonable punishment to him.'

[32.5] Assault 

The element 'Assault' is examined commencing on page 564.

[32.6] Bodily Harm 

The term 'Harm' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'any bodily hurt, disease or disorder whether permanent or temporary'.

In R v Clarence Barrington Morris [1998] 1 CrAppR 386 Potter LJ delivering the judgment of the Court of Appeal stated at page 393: 

'What constitutes "actual bodily harm" for the purposes of section 47 of the 1861 Act is succinctly and accurately set out in Archbold (1997 ed.) at para. 19-197 as follows: 

"Bodily harm has its ordinary meaning and includes any hurt (our emphasis) or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling: Donovan [1934] 25 CrAppR 1, cited with approval … in R v Brown (Anthony) [1994] 1 AC 212 at pp. 230 and 242 respectively. 

Actual bodily harm is capable of including psychiatric injury but it does not include mere emotion, such as fear, distress or panic … Chan – Fook (1994) 99 CrAppR 147."' 

In R v Ireland; R v Burstow [1998] 1 CrAppR 177 [[1998] AC 147] Lord Slynn of Hadley, with the other members of the House of Lords concurred, stated at pages 185 – 186: 

'[I]n Chan – Fook (1994) 99 CrAppR 147; [1994] 1 WLR 689 the Court of Appeal squarely addressed the question whether psychiatric injury may amount to bodily harm under section 47 of the Act of 1861 [, referring to the Offences Against the Person Act 1861 (UK)]. […] In a detailed and careful judgment given on behalf of the court Hobhouse LJ said (at p. 152 and p. 695G – 595H): 

"The first question on the present appeal is whether the inclusion of the word 'bodily' in the phrase 'actual bodily harm' limits harm to harm to the skin, flesh and bones of the victim … The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties." 

In concluding that "actual bodily harm" is capable of including psychiatric injury Hobhouse LJ emphasised […] that "it does not include mere emotions such as fear or distress or panic, nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition." He observed that in the absence of psychiatric evidence a question whether or not an assault occasioned psychiatric injury should not be left to the jury. 

[…] I hold that "bodily harm" in sections 18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness.' [words in brackets added] 

See also: R v Miller [1954] 2 AllER 529.

[32.7] Multiplicity Of Acts 

The law relating to 'Multiplicity Of Acts' is examined commencing on page 566.

[32.8] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Bodily Harm' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[32.9] Related Offences 

The following offences are related to the offence of 'Bodily Harm' as provided for in the Penal Code (Ch. 26): 

·                     'Common Assault', section 244 of the Penal Code (Ch. 26) which is examined commencing on page 562; 

·                     'Unlawful Wounding', section 229 of the Penal Code (Ch. 26) which is examined commencing on page 578; and 

·                     'Grievous Harm', section 226 of the Penal Code (Ch. 26) which is examined commencing on page 584.