DPP v. Smith: hair cutting as 'actual bodily harm'

Post by k***@yahoo.com
DPP v SMITH
(Filed: 26/01/2006)
Divisional Court
Sir Igor Judge (President QB), Cresswell J
January 17, 2006
Actual bodily harm - Actus reus - Assault - Hair - Element of the
offence - Cutting of hair without consent - Offences Against th
Person
Act 1861
FACTS
The DPP appealed by way of case stated against a decision of a
magistrates' court that the respondent (R) had no case to answer to a
charge of assault causing actual bodily harm contrary to the Offences
against the Person Act 1861. Information had been laid against R that
he had caused actual bodily harm to his former partner (X), by cutting
her hair. The magistrates' court acceded to an application by R of no
case to answer on the basis that, whilst the evidence before the court
indicated that X had been assaulted by R, as X had suffered no
bruising, bleeding, scratching of her skin or psychological harm, an
important element of the alleged offence was missing. R contende
that,
although hair was subcutaneous, on the scalp it was dead tissue
incapable of being part of the body.
ISSUE
Whether the magistrates' court had been wrong in law to hold that the
cutting of X's hair did not amount to assault occasioning actua
bodily
harm.
HELD (Appeal allowed)
Actual bodily harm meant what it said, therefore, it was necessary to
look at the definitions of those words as used in ordinary language.
Harm was not limited to injury and included hurt or damage. "Actual"
meant not being so trivial as to be without significance. "Bodily"
meant concerned with the body. The authorities indicated that actual
bodily harm applied to all parts of the body and that pain was not a
necessary element of the offence. Whether it was alive beneath the
surface of the skin, or dead tissue, hair was part of the human body
and was intrinsic to every human. Even if hair on the scalp was
medically no more than dead tissue, whilst attached to the scalp it
fell within the meaning of bodily in the term "actual bodily harm".
Cutting hair, like putting paint on, or other injury to hair, was
capable of being assault causing actual bodily harm. R v Donova
(1934)
2 KB 498, R v Chan-Fook (1994) 1 WLR 689, R v Stephen Coo
(unreported,
28 July 1994, Court of Appeal) and T v DPP (2003) EWHC 266 considered.
Timothy Green (instructed by the Crown Prosecution Service) for the
appellant. George Fairburn (instructed by Timothy Gascoyne, Tipton
for
the respondent.
http://tinyurl.com/dxvmp

I would have guessed it wsa more likey to be seen as 'battery' rathe
than ABH, but there you go.

Can you have ABH in the absence of an 'injury'

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R. Mark Clayton

2006-01-27 15:07:02 UTC

Can you have ABH in the absence of an 'injury'?

Did you actualy read the original post?

Hair is part of the body, and cutting it causes harm to the person.

T***@yahoo.co.uk

2006-01-29 00:26:01 UTC

Can you have ABH in the absence of an 'injury'?

Did you actualy read the original post?

Yes, I did. Was it not utterly ridiculous?

Post by R. Mark Clayton
Hair is part of the body, and cutting it causes harm to the person.

If that is to become the legal precedent and bearing
in mind R v Brown and others (the 'Spanner' case)
in which it was held that persons may not give their
consent to assault resulting in ABH or GBH or that
obtaining prior consent is not a defence, it follows
that the Divisional Court has now made barbering
and/or hairdressing illegal.

Even if that is not the effect of this silly precedent,
a crime would appear to be committed if a barber
snips away more hair than one had desired, or if
s/he is at all overzealous in their use of the thinning
shears which, as you may recall, rip out hairs by
their roots.

If you have been, how were the pies next door?

--
x
/|\

R. Mark Clayton

2006-01-29 11:03:00 UTC

Can you have ABH in the absence of an 'injury'?

Did you actualy read the original post?

Yes, I did. Was it not utterly ridiculous?

Post by R. Mark Clayton
Hair is part of the body, and cutting it causes harm to the person.

People can obviously consent to assaults such as hairdressing, manicure, ear
piercing or even a tattoo*. Absence of consent was clearly a factor. Part
of the reason for the ABH conviction (and an earlier GBH conviction in a
serious stalking case) was the degree of mental anguish caused to the
victim, and the length of time it would take for the hair to grow back.

Post by T***@yahoo.co.uk
Even if that is not the effect of this silly precedent,
a crime would appear to be committed if a barber
snips away more hair than one had desired, or if
s/he is at all overzealous in their use of the thinning
shears which, as you may recall, rip out hairs by
their roots.

You are trying to make the precedent look silly, but IMHO not succeeding.

* imagine if after a very drunken night out, you awoke in the morning to
discover your 'mates' had arranged a tattoo of "TD L XX" in a heart on your
cheek.

T***@yahoo.co.uk

2006-01-29 11:51:06 UTC

Post by R. Mark Clayton
Hair is part of the body, and cutting it causes harm to the person.

People can obviously consent to assaults such as hairdressing, manicure, ear
piercing or even a tattoo*.

One would surely have supposed that one could consent
to such assaults, yet the precedent of R. v Brown and
others states that giving one's consent to assaults for
the purpose of some form of personal gratification does
not exculpate the person who carries out that assault.
Indeed, in that case, some of those convicted had been
charged with conspiracy to have themselves assaulted or
some such nonsense.

Post by R. Mark Clayton
Absence of consent was clearly a factor. Part
of the reason for the ABH conviction (and an earlier GBH conviction in a
serious stalking case) was the degree of mental anguish caused to the
victim, and the length of time it would take for the hair to grow back.

I would certainly not disagree that unwanted
trimming of a wench's hair would cause more than
a little mental anguish and possibly considerably
more than telling her that, yes, her bum did seem
enormous in everything she wore. However, I remain
more than a little uneasy about the use (or misuse)
of a statute intended to deal with purely physical
injury to deal with psychological harm. How is it
possible to determine if the mental anguish caused
by a course of action by the accused would result
in ABH or GBH?

And is it not more than somewhat perverse to pretend
that an offence of Actual Bodily Harm should also
apply to cases where neither wounding nor broken
bones nor even any physical bruising has occurred?

I would contend that a new law is needed to replace
this present legal mess. Politicians like to make laws
as it gives them a feeling of having achieved something
whether or not they actually have done anything
worthwhile. They might as well make a law that
forbids causing actual or grevious psychological
harm to someone. Granted, it may be difficult to
prove, but that is what lawyers are for, isn't it?

You are trying to make the precedent look silly, but IMHO not succeeding.

You have argued that cutting a woman's hair
without her consent caused her mental anguish,
yet you do not believe that, for example, a barber
wilfully cutting a gent's carefully and lovingly
arranged comb-over would or could cause similar
or ever greater anguish?

Post by R. Mark Clayton
* imagine if after a very drunken night out, you awoke in the morning to
discover your 'mates' had arranged a tattoo of "TD L XX" in a heart on your
cheek.

As I have never been so inebriated in my life, it
is more than a little difficult to imagine that such
an event might occur. One would certainly have
to wonder if the tattooist was fit to hold a needle
other than for the purpose of sewing mailbags.

If you have been, is it on your buttock?

--
x
/|\

Peter

2006-01-29 19:26:41 UTC

Post by T***@yahoo.co.uk
One would surely have supposed that one could consent
to such assaults, yet the precedent of R. v Brown and
others states that giving one's consent to assaults for
the purpose of some form of personal gratification does
not exculpate the person who carries out that assault.
Indeed, in that case, some of those convicted had been
charged with conspiracy to have themselves assaulted or
some such nonsense.

This would turn on specific law with respect to the facts of the case.
Morality of the proposed physical violation for which consent is given
would apply, just as in the past sodomy was a crime, consent or otherwise.

No one would suggest that hairdressing, surgical procedures, making love,
playing rugby football etc with consent would amount to criminal assault.
Similarly with the likes of boxing, but probably if only under proper
control - and hitting or kicking an opponent who is out for the count would
definitely be assault.

Consent would not always be required. A paramedic who found it necessary to
cut hair when attending to an accident victim would not be charged with
assault.

Mike

2006-01-30 00:48:04 UTC

Post by Peter
Consent would not always be required. A paramedic who found it necessary to
cut hair when attending to an accident victim would not be charged with
assault.

Probably true but that doesn't mean no offence is committed.

--
Mike

PeteM

2006-01-30 12:35:29 UTC

Post by Peter

This would turn on specific law with respect to the facts of the case.

But I think Theo's point was that the specific law is exactly the same
in both this case and R v Brown.

Post by Peter
Morality of the proposed physical violation for which consent is given
would apply,

Why, and who would decide what was moral, and on what authority? I
thought lawyers were always telling us that the courts are courts of
*law*, and not courts of morality or justice or whatever.

Post by Peter
just as in the past sodomy was a crime, consent or otherwise.

AIUI that's because the law *said* it was a crime, not because a judge
decided it was immoral.

Post by Peter
No one would suggest that hairdressing, surgical procedures, making love,
playing rugby football etc with consent would amount to criminal assault.
Similarly with the likes of boxing,

You're wrong there. Many people believe that boxing with consent should
amount to criminal assault.

ISTM that the fact that boxing is not illegal makes the decision in R v
Brown ridiculous.

--
PeteM

Alex Panda

2006-01-29 12:02:52 UTC

Can you have ABH in the absence of an 'injury'?

Did you actualy read the original post?

Yes, I did. Was it not utterly ridiculous?

Post by R. Mark Clayton
Hair is part of the body, and cutting it causes harm to the person.

People can obviously consent to assaults such as hairdressing, manicure,
ear piercing or even a tattoo*. Absence of consent was clearly a factor.

But I think the OP's point is that a previous determination has established
that a person *cannot* give consent to an assault resulting in ABH.

R. Mark Clayton

2006-01-29 13:27:49 UTC

Post by Alex Panda

Post by R. Mark Clayton
People can obviously consent to assaults such as hairdressing, manicure,
ear piercing or even a tattoo*. Absence of consent was clearly a factor.

But I think the OP's point is that a previous determination has
established that a person *cannot* give consent to an assault resulting in
ABH.

Tattoos and piercings would clearly be ABH if there was no consent, yet
their practitioners are not prosecuted when there is, although tattooists
have been prosecuted for tattooing persons under 16/18.

There will always be untidy edges to the law - e.g. a person under 16 could
be guilty of conspiracy to USI by seducing an older person, and perhaps have
someone else [falsely] confirm that they were over 16.

The general principle is that if people intentionally do so much harm to
themselves that they become a burden on the state then they can be
prosecuted (e.g. drugs, D&I, going to sea unprepared, OTT BDSM etc.)

2006-01-29 13:44:04 UTC

Post by Alex Panda
But I think the OP's point is that a previous determination has
established that a person *cannot* give consent to an assault resulting in
ABH.

Isn't that the silly ruling, rather than the one about ABH?

k***@yahoo.com

2006-01-29 17:24:15 UTC

Presumably licensing makes all the difference:

Hairdressers
Local Government (Miscellaneous Provisions) Act 1976

It is now an offence to operate a barbers or hairdressing
establishment, or to act as a hairdresser without first becoming
registered with your local authority. An application form can be
downloaded here. Once registration has been granted, you will only need
to update it if you relocate your premises or move to another
hairdressing establishment.

If you pull a tooth and you are a qualified, licensed dentist, it isn't
GBH. And so on, including if you are a licensed solicitor and if you
empty someone's wallet, that's not theft...

R. Mark Clayton

2006-01-29 20:28:02 UTC

Post by k***@yahoo.com
If you pull a tooth and you are a qualified, licensed dentist, it isn't
GBH. And so on, including if you are a licensed solicitor and if you
empty someone's wallet, that's not theft...

Yes where a registered medical practitioner makes incisions etc. with
consent then it isn't assault.

when the same person makes contributions to a news group with different IP
etc. then it's either Spam or a scam - so which is it for you?

Smiler

2006-01-30 01:35:00 UTC