ABH and sexual offences

Does cutting a person’s hair occasion actual bodily harm?

In DPP v Smith, the Divisional Court said that cutting a substantial part of a person’s hair can do so. This was because “bodily harm”, for the purposes of Section 47 of the Offences against the Person Act 1861, means any hurt or injury calculated to interfere with the health or comfort of the victim.

CLW Comment

This decision is probably correct (eg where a person’s entire head of hair is forcibly shaved off). However, the institution of a prosecution for assault occasioning actual bodily harm in the particular circumstances of this case (cutting off the victim’s ponytail) seems to have been a gross case of over-charging, leading inevitably to a wanton waste of public funds involved in a full-scale hearing in the High Court. Quite apart from the fact that the CPS’s own charging standards (controversially) suggest that common assault only should be charged where any injury caused amounts to no more than “grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin, superficial cuts or a ‘black eye’”, is it not obvious that if such a case as this one had to be prosecuted at all, the criminality involved would have been more than adequately covered by a charge of common assault?

What happens where it is impossible to prove whether a sexual offence was committed before or after May 1, 2004?

R v A (Prosecutor’s appeal) (CLW/06/01/07) was one of the first appeals under Part 9 of the Criminal Justice Act 2003 against a judge’s mid-trial ruling against the prosecution. The issue was as to what would happen where the prosecution were unable to prove whether an assault was an indecent assault contrary to the Sexual Offences Act 1956 or a sexual assault contrary to the Sexual Offences Act 2003, because the complainant was unable to say whether the alleged conduct had occurred before or after May 1, 2004 (the date on which the bulk of the 2003 Act had been brought into force and the repeal of the 1956 Act took effect). In theory, the court said, this issue should not have arisen at all, since Parliament had provided the Home Secretary with the power, when making a commencement order, to make “supplementary, incidental, saving or transitional provisions” to cater for this possibility. However, when the Home Secretary made the commencement order which brought the 2003 Act into force (SI 2004 No. 874) (CLW/04/14/24), he failed to make any transitional provisions. The court held that it was not possible to interpret the 2003 Act and the commencement order in such a way as to provide the transitional regime which Parliament had envisaged should be provided. Therefore, if on the evidence, the jury could not be sure as to whether the conduct had occurred before or after midnight on April 30, 2004, they would have to acquit the defendant of both offences where the indictment contained two counts (one alleging an offence under the 1956 Act committed prior to May 1, 2004, and one alleging an offence under the 2003 Act, committed after April 30, 2004) even if they were sure that he had done the act alleged with the necessary mental state.

CLW Comment

The fallout from this problem is more widespread than might at first appear. First, the problem is not limited just to the one offence the court considered here; it is capable of arising in relation to any offence under the 1956 Act which is replaced by a corresponding offence in the 2003 Act. Indeed, before this decision, H H J Glen in the Crown Court at Stoke-on-Trent had come to the same conclusion in relation to the offence of rape (see R v Newbon (CLW/05/22/12)). Secondly, as other commentators have pointed out, the problem may acquire increasing significance as the years go by and allegations of old sexual offences are made, and it emerges that it is no longer the case that the complainant is unsure by a matter of a few days as to when the offence took place, but is unsure as to months or even years as to when exactly it took place.

However, it is submitted that it is po