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University of London International Programmes

22 Extract from Crown Prosecution Service Guidance to

Prosecutors

This material relates to the Criminal law subject guide, Chapter 10.
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Common Assault, contrary to section 39 Criminal Justice Act

(i) An offence of common assault is committed when a person either assaults another
person or commits a battery.

(ii) An assault is committed when a person intentionally or recklessly causes another

to apprehend the immediate infliction of unlawful force.

(iii) A battery is committed when a person intentionally and recklessly applies

unlawful force to another.

(iv) It is a summary offence, which carries a maximum penalty of six months

imprisonment and/or fine not exceeding the statutory maximum.

(v) Where there is a battery the defendant should be charged with ‘assault by beating.’
(DPP v Little (1992) 1 All ER 299).

(vi) In law, the only factors that distinguish common assault from assault occasioning
actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861,
are the degree of injury that results and the sentence available to the sentencing
court.

(vii) Where battery results in injury, a choice of charge is available. The Code for
Crown Prosecutors recognises that there will be factors, which may properly lead to a
decision not to prefer or continue with the gravest possible charge. Thus, although any
injury that is more than transient or trifling can be classified as actual bodily harm, the
appropriate charge (subject to Para (viii) below) will be contrary to section 39 where
injuries amount to no more than the following:

uu Grazes

uu Scratches

uu Abrasions

uu Minor bruising

uu Swellings

uu Reddening of the skin

uu Superficial cuts

uu A ‘black eye.’

(i) You should always consider the injuries first and in most cases the degree of injury
will determine whether the appropriate charge is section 39 or section 47. There
will be borderline cases, such as where an un-displaced broken nose has resulted.
Generally, when the injuries amount to no more than those described at sub-
paragraph (vii) above, common assault will be the appropriate charge.

However, there may be cases where the injuries suffered by a victim would usually
amount to common assault but due to the presence of serious aggravating features,
they could more appropriately be charged as actual bodily harm contrary to s. 47
Offences Against the Person Act 1861.

Such serious aggravating features would include:

(a) the nature of the assault, such as the use of a weapon, biting, gouging or kicking of
a victim whilst on the ground, or strangulation which is more than fleeting and which
caused real fear to the victim; or

(b) the vulnerability of the victim, such as when the victim is elderly, disabled or a child
assaulted by an adult (so that where an assault causes any of the injuries referred to in
sub-paragraph (vii) above, other than reddening of the skin, the charge will normally be
assault occasioning actual bodily harm, although prosecutors must bear in mind that the
definition of assault occasioning actual bodily harm requires the injury to be more than
transient and trifling); or

(c) other circumstances when though the injuries are relatively minor the existence of
aggravating features mean that the sentencing powers of the court may not be adequate.
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Assault occasioning actual bodily harm, contrary to section 47 Offences Against

the Person Act 1861
(i) The offence is committed when a person assaults another, thereby causing actual
bodily harm. 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: It is an either way offence, which carries
a maximum penalty on indictment of five years’ imprisonment and/or an unlimited
fine not exceeding the statutory maximum.

(ii) As stated in paragraph 1(vi) above, the factors in law that distinguish a charge
under section 39 from a charge under section 47 are the degree of injury resulting and
the sentencing powers available to the sentencing court. Refer to paragraphs 1(vii)
and (viii) for instances where common assault will be the appropriate charge. Where
the injuries exceed those that can suitably be reflected by a common assault a charge
of assault occasioning actual bodily harm should normally be preferred. By way of
example, the following injuries should normally be prosecuted under section 47:

uu Loss or breaking of tooth or teeth

uu Temporary loss of sensory functions, which may include loss of consciousness (T v

Director of Public Prosecutions, [2003] Crim. LR 622).

uu Extensive or multiple bruising

uu Displaced broken nose

uu Minor fractures

uu Minor, but not merely superficial, cuts of a sort probably requiring medical
treatment (e.g. stitches)

uu Psychiatric injury that is more than mere emotions such as fear, distress or panic.
In any case where psychiatric injury is relied upon, as the basis for an allegation
of assault occasioning actual bodily harm, and the matter is not admitted by the
defence, then expert evidence must be called by the prosecution (R v Chan-Fook, 99
Cr App R 147, CA).

(i00) A verdict of assault occasioning actual bodily harm may be returned on proof of
an assault together with proof of the fact that actual bodily harm was occasioned by
the assault.

(iv) The test of recklessness is as per R v Cunningham

(v) This offence is capable of being racially aggravated under the Crime and Disorder
Act 1998.

Unlawful wounding/inflicting grievous bodily harm, contrary to section 20

of the Act.
(i) The offence is committed when a person unlawfully and maliciously, either:

uu wounds another person; or

uu inflicts grievous bodily harm upon another person.

(ii) It is an either way offence, which carries a maximum penalty on indictment of five
years’ imprisonment and/or an unlimited fine. Summarily, the maximum penalty is six
months’ imprisonment and/or a fine not exceeding the statutory maximum.

(iii) Wounding means the breaking of the continuity of the whole of the outer skin,
or the inner skin within the cheek or lip. It does not include the rupturing of internal
blood vessels.

(iv) The definition of wounding may encompass injuries that are relatively minor
in nature, for example a small cut or laceration. An assault resulting in such minor
injuries should more appropriately be charged contrary to section 47. An offence
contrary to section 20 should be reserved for those wounds considered to be serious
(thus equating the offence with the infliction of grievous, or serious, bodily harm
under the other part of the section).
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(v) Grievous bodily harm means serious bodily harm. It is for the jury to decide
whether the harm is serious. However, examples of what would usually amount to
serious harm include:

uu injury resulting in permanent disability or permanent loss of sensory function;

uu injury which results in more than minor permanent, visible disfigurement; broken
or displaced limbs or bones, including fractured skull

uu compound fractures, broken cheek bone, jaw, ribs, etc.

uu injuries which cause substantial loss of blood, usually necessitating a transfusion

uu injuries resulting in lengthy treatment or incapacity

uu psychiatric injury. As with assault occasioning actual bodily harm, appropriate

expert evidence is essential to prove the injury.

(vi) In accordance with the recommendation in (R v McCready (1978) 1 WLR 1376),

if there is any reliable evidence that a sufficiently serious wound has been inflicted,
then the charge under section 20 should be of unlawful wounding, rather than of
inflicting grievous bodily harm. Where both a wound and grievous bodily harm have
been inflicted, discretion should be used in choosing which part of section 20 more
appropriately reflects the true nature of the offence.

(vii) The prosecution must prove under section 20 that either the defendant intended,
or actually foresaw, that the act might cause some harm. It is not necessary to prove
that the defendant either intended or foresaw that the unlawful act might cause
physical harm of the gravity described in section 20. It is enough that the defendant
foresaw some physical harm to some person, albeit of a minor character, might result:
(R v Savage; DPP v Parmenter [1992] 1 A.C 699).

(viii) This offence is capable of being racially/religiously aggravated under the Crime
and Disorder Act 1998. Wounding/causing grievous bodily harm with intent, contrary
to section 18 Offences Against the Person Act 1861.

Wounding/causing grievous bodily harm with intent, contrary to section 18

Offences Against the Person Act 1861.
(i) The offence is committed when a person unlawfully and maliciously, with intent
to do some grievous bodily harm, or with intent to resist or prevent the lawful
apprehension or detainer of any other person, either:

uu wounds another person; or

uu causes grievous bodily harm to another person.

(ii) It is an indictable only offence, which carries a maximum penalty of imprisonment

for life.

(iii) For the definition of wounding and grievous bodily harm, see paragraphs 4(iii) to
4(v) above.

(iv) The distinction between charges under section 18 and section 20 is one of intent.

(v) The gravity of the injury resulting is not the determining factor, although it may
provide some evidence of intent.

(vi) When charging an offence involving grievous bodily harm, consideration should
be given to the fact that a section 20 offence requires the infliction of harm, whereas
a section 18 offence requires the causing of harm. This may be of some significance
when considering alternative verdicts, (section 7 below). However this distinction has
been greatly reduced by the decision of the House of Lords in R v Ireland; R v Burstow
[1998] A.C 147 (Archbold 19-208).
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(vii) Factors that may indicate the specific intent include:

uu a repeated or planned attack

uu deliberate selection of a weapon or adaptation of an article to cause injury, such as

breaking a glass before an attack

uu making prior threats

uu using an offensive weapon against, or kicking the victim’s head.

(viii) The evidence of intent required is different if the offence alleged is a wounding
or the causing of grievous bodily harm with intent to resist or prevent the lawful
apprehension or detainer of any person. This part of section 18 is of assistance in more
serious assaults upon police officers, where the evidence of an intention to prevent
arrest is clear, but the evidence of an intent to cause grievous bodily harm is in doubt.
(Archbold 19-213 to 19-214).

(ix) It is not bad for duplicity to indict for wounding with intent to cause grievous
bodily harm or to resist lawful apprehension in one count, although it is best practice
to include the allegations in separate counts. This will enable a jury to consider the
different intents and the court to sentence on a clear basis of the jury’s finding.