UK developments on "actual bodily harm" (1 Viewer)

[Frigid]

from Times Online:

Why a bad hair day for Ms Tether was good for the law

WHEN Michael Ross Smith held down his former girlfriend Michelle Tether and cut off her ponytail with kitchen scissors last April a few weeks before her 21st birthday, she was understandably upset. As the biblical authority of Corinthians recognises, “flowing locks . . . are a woman’s glory”.

Mr Smith was prosecuted for assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The magistrates at Dudley, in the West Midlands, acquitted him in June on the hair-splitting ground that although there was undoubtedly an assault, it had not caused actual bodily harm, since there was no bruising or bleeding, and no evidence of any psychological or psychiatric harm. Ms Tether’s distress did not amount to bodily harm. And Mr Smith had not been charged with the lesser offence of common assault.

Two weeks ago, the Divisional Court allowed an appeal by the Director of Public Prosecutions. Sir Igor Judge, President of the Queen’s Bench Division, and Mr Justice Cresswell rejected the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done to Ms Tether. The court ruled that hair was part of the body to which it was attached. Therefore Mr Smith had a case to answer, and so the matter was sent back to the magistrates for a further hearing. As Alexander Pope wrote in 1712 in The Rape of the Lock, after Lord Petre cut off a lock of Arabella Fermor’s hair without her permission: “What dire offence from am’rous causes springs, / What mighty contests rise from trivial things.”

...

More difficult legal issues may arise. Presumably it is an assault occasioning actual bodily harm if someone cuts my toenails without my consent. But what if my enemy pulls off, and sets fire to, my wooden leg? Is this merely an item of property which may be vindicated by a prosecution for theft and criminal damage, or is it part of my body in a way that my overcoat is not?

Body parts can pose formidable jurisprudential problems. Last year, the Appellate Committee of the House of Lords allowed the defendant’s appeal from a Court of Appeal ruling that he was in “possession of an imitation firearm” when he tried to rob someone by pretending that his fingers in his pocket were a gun. Lord Bingham of Cornhill ruled that “an unsevered hand or finger is part of oneself. Therefore, one cannot possess it.” Lord Rodger of Earlsferry cited the Roman law authority Ulpian for the principle that “no one is to be regarded as the owner of his own limbs”. A bad hair day for the unfortunate prosecution counsel.

DPP v Smith will take its place in the hair law reports among other highlights. In 1970, in the United States Court of Appeals, First Circuit, Judge Coffin ruled that the suspension of a high school student for wearing his hair “falling loosely about his shoulders” was a breach of his constitutional rights. In 1976, a Michigan judge was reprimanded for reducing the bail required of a defendant on condition that he “had his hair cut in a fashion similar” to that of the judge. And in 1995, a county court judge awarded damages of £100 to a remand prisoner who complained that the barber at Doncaster prison, whom he had asked for a trim, gave him so short a haircut that it made him “look like a convict”.

it is of interest to note that ABH is not defined in NSW statute (whereas GBH is).

 

[MoonlightSonata]

Ah yes, there are great problems in placing legal limits on the body.

Frigid if you read my judgment (sent it to you some time ago), those issues in Moore are discussed

In 1976, a Michigan judge was reprimanded for reducing the bail required of a defendant on condition that he “had his hair cut in a fashion similar” to that of the judge.

Haha!

 

[Rorix]

Is there not American authority that damage to clothes can be sufficient for battery? I will have to dig up old notes...

 

[MoonlightSonata]

I'm not sure how that would come up though. If the assailant damages the clothes while they are on the victim, they would probably always come into contact with the victim.

I'm trying to imagine someone getting a pair of scissors and snipping a little hole in someone's jumper or something. But that would just be damaging their property wouldn't it?

 

[neo o]

DPP v Smith will take its place in the hair law reports among other highlights. In 1970, in the United States Court of Appeals, First Circuit, Judge Coffin ruled that the suspension of a high school student for wearing his hair “falling loosely about his shoulders” was a breach of his constitutional rights. In 1976, a Michigan judge was reprimanded for reducing the bail required of a defendant on condition that he “had his hair cut in a fashion similar” to that of the judge. And in 1995, a county court judge awarded damages of £100 to a remand prisoner who complained that the barber at Doncaster prison, whom he had asked for a trim, gave him so short a haircut that it made him “look like a convict”.

Kavanagh v Akhtar is the best case in the hair law reports, hands down

 

[Rorix]

I'm not sure how that would come up though. If the assailant damages the clothes while they are on the victim, they would probably always come into contact with the victim.

I'm trying to imagine someone getting a pair of scissors and snipping a little hole in someone's jumper or something. But that would just be damaging their property wouldn't it?

If I remember correctly the plaintiff had his clothes cut with a knife but with no harm to the physical body. I'll try and dig up the case reference for you.

 

[MoonlightSonata]

If I remember correctly the plaintiff had his clothes cut with a knife but with no harm to the physical body. I'll try and dig up the case reference for you.

You could get them for attempted assault?

 

[Rorix]

You could get them for attempted assault?

Mmm, Moonlight, but where would the law be if every lawyer was perfect? Why, we wouldn't have the developments that came in the old days when lawyers claimed under the wrong torts!

 

[MoonlightSonata]

Hehe.

I suspect that, despite the overwhelming majority who would send them off to equity with a handkerchief, a few common law judges in particular may have enjoyed fleshing out awkward and somewhat inappropriate claims into new and wonderful little concoctions of their own.