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 affirmation by the House of Lords in R v Brown (1994). 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'. Kilmuir's judgment was followed in Chan-Fook, where the court considered that 'the [same] is true of the phrase 'actual bodily harm''.
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.' Therefore despite recent trends in judicial interpretation which lean towards the purposive approach, Judge P's judgment applies the literal rule, which 'gives all the words in a statute their ordinary and natural meaning.'
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'. 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)'.
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', 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]'
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. 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.' 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'. 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.
DPP v Smith [2006] EWHC 94
R v Reigate Justices ex p. Counsell (1984) 148 JP 193, DC
R v Chan-Fook [1994] 1 WLR 689
R v Ireland; R v Burstow [1997] 4 All ER 225
R v Chan-Fook [1994] 1 WLR 689
T v DPP [2003] EWHC 266 (Admin)
Elliott & Quinn, English 23 - 35
R v Brown (1994) 1 AC 212
DPP v Smith [1961] AC 290
R v Chan-Fook [1994] 1 WLR 689
DPP v Smith [2006] EWHC 94
Elliott & Quinn, English, 58
Omerod and Tausz, 'Assault occasioning actual bodily harm: whether cutting off hair amounting to actual bodily harm' (2006) Crim L.R Jun 528 529' 529
DPP v Smith [2006] EWHC 94
David Selfe, Crim. Law. 2006, 162, 3-5, 2
ibid
Table of Cases
DPP v Smith [1961] AC 290
DPP v Smith [2006] EWHC 94
R v Brown (1994) 1 AC 212
R v Chan-Fook [1994] 1 WLR 689
R v Donovan [1934] 2 K.B
R v Ireland; R v Burstow [1997] 4 All ER 225
R v Reigate Justices ex p. Counsell (1984) 148 JP 193, DC
T v DPP [2003] EWHC 266 (Admin)
Bibliography
Conway, Mark 'Phoney Tales?' (2006) S.J. 150 (37) 1257
Elliott, Catherine & Quinn, Frances, English Legal System (13th edn, 2012)
Omerod, D.C and Tausz, Dilys, 'Assault occasioning actual bodily harm: whether cutting off hair amounting to actual bodily harm' (2006) Crim L.R Jun 528 529
Reed, Alan, "The Meaning of actual bodily harm" (2006) Crim. Law. 164
Richardson, James, Criminal Law Week, 06.03.07
Selfe, David, Crim. Law. 2006, 162, 3-5