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MR P FIELDS (instructed by Crown Prosecution Service, Hertfordshire) appeared on behalf of the RESPONDENT
Crown Copyright ©
Tuesday, 4 February 2003
"(a) In the evening of 18 November 2001 John David Marsh was present in Jarmans Park, Hemel Hemstead with a number of friends. He was approached by a group of boys, one of whom spoke to him and then head butted him. The Appellant was not the assailant.
"(b) Marsh did not retaliate, but continued to walk through the boys towards a nearby nightclub where he was refused admission. He retraced his steps towards the group which had previously confronted him.
"(c) On speaking with the group, Marsh was punched in the eye. He did not see who it was who had struck him.
"(d) After being punched in the eye Marsh attempted to run from the scene and was chased by a group which included the Appellant. When Marsh fell to the ground, he landed on his side. He saw the Appellant 3 to 4 metres away from him but coming towards him. He had a clear view and was certain that it was the Appellant who was approaching him.
"(e) Marsh covered his head with his arms and was kicked. Marsh momentarily lost consciousness and remembered nothing until being woken by a police officer, PC Hayley.
"(f) Marsh had been kicked unconscious by the Appellant. Although loss of consciousness was momentary it amounted to actual bodily harm.
"(g) John Marsh was chased by the Appellants' group with the intention of assaulting him.
"(h) The attack on Marsh was witnessed by PC Hayley who was on patrol duty in an unmarked police car. PC Hayley witnessed Marsh fall to the ground beside the police vehicle.
"(i) Although PC Hayley who attended Marsh noted that he had a bloody nose and swelling over his right eye those injuries were not proved to have been caused by the Appellant kicking him and may have been attributable to the earlier attacks on Marsh."
" ... in the light of R v Miller ... the unconsciousness suffered by Marsh as a result of the kick from the Appellant amounted to actual bodily harm."
They, accordingly, found the appellant guilty and on 19 June 2002 he was sentenced by way of a community punishment order of 40 hours and ordered to pay £50 costs.
"Whether momentary loss of consciousness is sufficient to make out the offence of Assault Occasioning Actual Bodily Harm contrary to sec. 47 of The Offences Against the Person Act 1861."
"For this purpose we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."
Mr Hearnden's approach is to focus on the word "transient". Taking that word and its deployment in Donovan as a starting point, he then synonymises it with the word "momentary", by reference to certain respected dictionaries, and submits that a momentary loss of consciousness cannot be actual bodily harm because it is, by definition, merely transient.
"These are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word 'harm' is a synonym for injury. The word 'actual' indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."
In my view, it cannot be doubted that the loss of consciousness suffered by the victim in this case fell within the meaning of the word "harm". Nor can it be doubted that that harm was "bodily". It involved an injurious impairment to the victim's sensory functions. It is axiomatic that the bodily harm was "actual". In my judgment, on the plain words of the section, the justices were entitled to find that the assault carried out by the appellant had occasioned actual bodily harm.
"I am satisfied that the second count [alleging assault occasioning actual bodily harm] is a valid one and must be left to the jury for their decision. The point has been taken that there is no evidence of bodily harm. The bodily harm alleged is said to be the result of the [defendant's] actions, and that is, if the jury accept the evidence, that he threw the wife down three times. There is evidence that afterwards she was in a hysterical and nervous condition, but it is said by counsel [for the defendant] that that is not 'actual bodily harm' ... There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that if a person is caused hurt or injury resulting, not in any physical injury, but in an injury to her state of mind for the time being, that is within the definition of 'actual bodily harm', and on that point I would leave the case to the jury."
The issue in Miller's case was the hysterical and nervous condition to which the learned judge referred. The justices in the present case specifically relied upon the case of Miller and the passage to which I have just referred. In my judgment, they did not err by so doing. The important point, however, is that none of these authorities provides a gloss on the statute. What one has to do is to return to the statute itself.