The Law Commissioner

The ruling of Judge P in DPP v Smith (2006) is that the non-consensual cutting of a substantial quantity of the victim's hair could amount to actual bodily harm (ABH). [1] This essay will evaluate whether this judgment is a deviation from 'natural' meaning. It will argue that the decision in Smith is in fact one term in an incremental extension of precedents which have remained within the natural use of the phrase 'actual bodily harm'. ABH is an offence occasioned by assault under s.

Offences Against the Person Act 1861. ABH is not defined in statute, and therefore we must look to common law for a definition. In the often cited judgment in R v Donovan (1934), the court held 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 or trifling. 

The definition given in the Donovan judgment could be seen as encompassing the act of non-consensually cutting a substantial amount of someone's hair, given that it is more than merely 'transient or trifling', and capable of 'interfering with the… comfort' of the victim. Donovan set the precedent that ABH need not include physical pain, and subsequent rulings have expanded the scope of ABH incrementally. R v Reigate Justices, ex parte Counsel (1983) returned a verdict of ABH in a situation where the victim had suffered great pain 'even though no physical injury was discernible at the time of the hearing.

In R v Chan-Fook the court expanded the definition of ABH by holding that 'recognised and identifiable psychological harm' could amount to ABH[4], a position which was upheld in R v Ireland & Burstow (1997) by the House of Lords. [5] Chan-Fook also held that ABH does not require 'any physical contact between the assailant and the body of the victim… physical pain consequent on an assault is not a necessary ingredient of this offence. '[6] The ruling in T v DPP (2003) that temporary unconsciousness can amount to ABH was upheld by the Queen's Bench Division.

Judge P. 's ruling in Smith that the removal of a substantial amount of hair from an unconsenting person is a logical extension of this progression. Lord Salmon's obiter (Abbott v The Queen (1977)) stating that the Law Lords are opposed to any usurpation by the courts of the functions of Parliament, but "strongly uphold the right and indeed the duty of the judges to adapt and develop the principles of the common law in an orderly fashion,"[8] which has been confirmed by many authorities,[9] can be applied to the decision in Smith.

The judgment makes no fundamental change to the law, but instead applies existing precedents to the situation. The Donovan definition has been mentioned and considered in a substantial number of cases[10], including its affirmation by the House of Lords in R v Brown (1994). [11] This ruling contradicted a previous judgment of the House in DPP v Smith (1961), in which Viscount Kilmuir L. C could find 'no warrant for giving the words 'grievous bodily harm' a meaning other than that which the words convey in their ordinary and natural meaning'.

[12] Kilmuir's judgment was followed in Chan-Fook, where the court considered that 'the [same] is true of the phrase 'actual bodily harm''. [13] In his judgment of DPP v. Smith (2003), Judge P. in fact follows DPP v Smith (1961) and R v Chan-Fook (1994) in asserting that the phrase 'actual bodily harm means what it says. '[14] Therefore despite recent trends in judicial interpretation which lean towards the purposive approach,[15] Judge P's judgment applies the literal rule, which 'gives all the words in a statute their ordinary and natural meaning.

'[16] He searches in the dictionary for ordinary, natural definitions of each word in order to arrive at a reading which remains congruent with the Donovan definition (by taking into account that the offence has interfered with the comfort of the victim) while also explicitly using 'ordinary language… according to the Concise Oxford Dictionary'. [17] Thus, even if the Donovan definition can be construed as widening the meaning of ABH away from its 'natural meaning', the narrower, literal interpretation, cannot.

Further literal definitions of ABH can be found in the draft Offences Against the Person Bill (1998) and in the Crown Prosecution Service Charging Standards. The Charging Standards, although not binding on the court, offer insight into the injuries which will lead to a trial for ABH, which include: 'loss or breaking of tooth or teeth; temporary loss of sensory functions, which may include loss of consciousness; extensive or multiple bruising; displaced broken nose; minor fractures; minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e. g. stitches)'. [18] This is, on the face of it, a limited definition.

However, the Bill, a proposed replacement for the 1861 statute, is more congruent with the extended concept of injury which culminated in the Smith judgment. It includes within its definition of physical injury 'pain, unconsciousness, and any other impairment of a person's physical condition',[19] Commenting on DPP v Smith, the Law Commissioner David Ormerod remarked 'Presumably, the same result might be arrived at under that provision [i. e.the Bill]'[20] The rulings of Judge P. and Cresswell J. in DPP v Smith (2003) did not hold that every instance of non-consensual hair cutting is ABH. [21]

As David Selfe has commented, 'This is an important distinction, as it emphasises that the cutting of hair (to be actual bodily harm) must reach a particular threshold. '[22] The decision in Smith is therefore limited in its effect, and it seems unlikely that the 'student prank of shaving an eyebrow off a sleeping house mate [may] now amount to a s. 47 offence'.

[23] This limited effect ensures that only a serious incident analogous with that in Smith will amount to ABH, thereby preserving the 'natural meaning'. This essay has discussed the incremental development of the meaning of the phrase actual bodily harm. It has expressed the view that Judge P. used the literal interpretation of statutory law in deciding Smith, and that this method of interpretation gives the words in the statute their natural and ordinary meaning without diverging with the traditional interpretation following Donovan.

Furthermore, this essay has articulated that the reading of ABH in Smith is cogent with previous decisions and with the CPS guidelines. It has been pointed out that Judge P's decision does not render all hair cutting to be ABH, but simply that the non-consensual cutting of hair may be taken as capable of being ABH. In conclusion then, I argue that for the above reasons, the decision in DPP v Smith is the logical extension of the phrase ABH. Far from draining it of its natural meaning, the decision has maintained it.