Assault Causing Harm in UK Law

To say that he is responsible because he ought not to have been on the road is to confuse criminal responsibility for the serious offence of being uninsured with criminal responsibility for the infinitely more serious offence of killing another person. The escalating offences of common assault, assault occasioning actual bodily harm, and causing grievous bodily harm are but simple examples; there are many more.

It has long been established that except for special cases in which crimes of absolute liability are created by Statute, no one can be convicted of any crime unless he has a guilty mind (3 Cokes Institutes 6). The elements constituting a guilty mind naturally differ widely from crime to crime just as the elements constituting different crimes themselves necessarily differ widely. It is not necessary to prove that he intended to cause the bodily harm which resulted from the assault.

It also seems plain that as the general social appreciation of what is tolerable and of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and about what is meant by going "too far", will not remain constant.

If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute actual bodily harm and wounding. Grievous bodily harm I accept to be different by analogy with and as an extension of the old cases on maiming. Accordingly, I accept that other than for cases of grievous bodily harm or death, consent can be a defence.

No doubt what is intended by those who have used these words in the past is to indicate that some injury which otherwise might be regarded as wholly trivial is not to be so regarded because it has caused the victim pain. Similarly an injury can be caused to someone by injuring their health; an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill. The injury may be internal and may not be accompanied by any external injury.

But whether there is one count or two, there cannot be convictions for both of two offences which are properly mutually exclusive alternatives. If there were two counts, and no plea of guilty, the jury would try the defendant on both, but would not be permitted to return verdicts of guilty on more than one. In our view, the course now proposed by the Crown in this case would offend against this fundamental concept of alternative charges.

If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R v Cain [1985] 1AC 46, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. Further, unlike, for example, a detention and training order for three years, which is beyond the powers of the court, an extended sentence is within the powers of the court.