Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
T
(APPELLANT)
-v-
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
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MR R HEARNDEN (instructed by A Meldrum & Co, Enfield, Middlesex) appeared on behalf of the APPELLANT
MR P FIELDS (instructed by Crown Prosecution Service, Hertfordshire) appeared on behalf of the RESPONDENT
J U D G M E N T
(As Approved by the Court)
Crown copyright©
Tuesday, 4 February 2003
MR JUSTICE MAURICE KAY: The case before me is an appeal by case stated from a decision of justices for the county of Hertford acting in and for the Petty Sessions Area of West Hertfordshire in respect of an adjudication at a Youth Court sitting at Hemel Hempstead. It follows that, the appeal arising from proceedings before a Youth Court, section 39 of the Children and Young Persons Act 1933 applies to prohibit publication of any material likely to lead to the identification of the appellant. Therefore, in any report of the case, the appellant should be referred to simply as "T".
The appellant was charged that on 18 November 2001 he assaulted John Marsh, thereby occasioning him actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. The trial in the Youth Court took place on 22 May 2002. The following facts were found by the Court:
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.
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.
On speaking with the group, Marsh was punched in the eye. He did not see who it was who had struck him.
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.
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.
Marsh had been kicked unconscious by the Appellant. Although loss of consciousness was momentary it amounted to actual bodily harm.
John Marsh was chased by the Appellants' group with the intention of assaulting him.
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.
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."
There was an issue at the trial as to whether the "momentary loss of consciousness" amounted to, or was capable of amounting to, "actual bodily harm" within the meaning of section 47. The justices were referred to some authority on the subject, including the case of R v Miller [1954] 2 QB 282. In the case stated they expressed the opinion that:
" ... 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.
The question posed by the justices for the opinion of this court is expressed in this way:
"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."
In his submissions on behalf of the appellant, Mr Hearnden focuses on the well-known passage from the judgment of the Court of Appeal given by Swift J in R v Donovan [1934] 2 KB 498. It contains this passage at page 509:
"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.
In my judgment that is a flawed approach. I go back to the specific words of section 47. The words "actual bodily harm" are not defined in the Act and there is no reason why they should have been; they were and are everyday words. In R v Chan-Fook [1994] 2 All England Reports 552 at 557D it was stated of the words "actual bodily harm":
"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 consider it inappropriate to approach the words used by the Court of Appeal in Donovan as though they were the words of a statute. As it happens, they do not even form part of the ratio of that case, the issue in which related to consent. However, they have been referred to frequently for many years. So too has the ruling given by Lynskey J in the case of Miller. He said at page 292:
"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.
However, I add this: even if one focuses on the words in Donovan, upon which Mr Hearnden relies, it is clear, as Mr Fields points out, that what the Court of Appeal was excluding from the definition of actual bodily harm was harm that was "transient and trifling", not "transient or trifling". Accordingly, to focus on transience to the exclusion of triviality is in itself an inappropriate exercise.
I am entirely satisfied that the justices did not fall into error. They were entitled to convict the appellant on the evidence of momentary loss of consciousness. Accordingly, this appeal is dismissed.
MR HEARNDEN: There is one matter, my Lord: my client is in receipt of a representation order; may I ask for the usual order?
MR JUSTICE MAURICE KAY: Yes, if that is the usual way of dealing with it.
MR HEARNDEN: Thank you very much.
MR JUSTICE MAURICE KAY: Thank you both very much.