The decision in DPP v Smith [2006] EWHC Crim (Admin) has resulted in the phrase actual bodily harm being drained of its natural meaning. Explain and critically evaluate this statement.

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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). 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. 47 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, a position which was upheld in R v Ireland & Burstow (1997) by the House of Lords. 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.' 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.

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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," which has been confirmed by many authorities, 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, including its ...

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