DPP v Smith
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRESSWELL |
| Judgment Date | 17 February 2006 |
| Neutral Citation | [2006] EWHC 94 (Admin) |
| Docket Number | CO/8405/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 February 2006 |
[2006] EWHC 94 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Sir Igor Judge
(president Of The Queen's Bench Division)
Mr Justice Cresswell
CO/8405/2005
MR TIMOTHY GREEN (instructed by CPS Wolverhampton) appeared on behalf of the CLAIMANT
MR GEORGE FAIRBURN (instructed by Timothy Gascoyne Solicitors) appeared on behalf of the DEFENDANT
THE PRESIDENT: This is a appeal by the Crown Prosecution Service by way of a case stated by the Justices for Dudley acting in and for the Local Justice Area of Dudley, in respect of an adjudication at a Magistrates' Court on 6 June 2005.
On 18 April 2005 an information was preferred against Michael Ross Smith, the respondent, that on 11 April 2005 he assaulted Michelle Tether, thereby occasioning her actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1961. The information was heard on 6 June. The Justices found the following facts.
Michelle Tether was the ex-partner of Michael Smith. They had started a relationship about five years earlier. During the course of the relationship it had broken up on two occasions. Mr Smith lives in the next street to Miss Tether. On 11 April she went to his home. She went to his bedroom where he was asleep and she woke him up. He pushed her down on the bed and produced some kitchen scissors. He sat on top of her and cut off the pony tail at the back of her head, without her consent. In addition, he cut some hair off the top of her head without her consent.
According to Michelle Tether, she subsequently picked up some of her hair and the pony tail and took it with her. She was noticed in a distressed state by a passing friend in a car and was taken to another friend's house. She did not go home until the following morning, nor say anything to her mother at the time; rather, she covered her head with a baseball cap. But it was not long before her mother noticed that her pony tail was missing.
At the close of the case for the prosecution, it was contended on behalf of the respondent that there was no case to answer. Cutting someone's hair without her consent did not necessarily amount to the offence of assault occasioning actual bodily harm. It might well be an ordinary common assault, but the respondent was not charged with that offence. It was accepted that the loss of the hair changed one's appearance, but it still did not constitute actual bodily harm and no evidence to that effect had been given. The victim had said that she was upset. This was a matter of emotion and ordinary distress, and could not amount to actual bodily harm as there was nothing to support any suggestion that she suffered psychiatric or psychological harm. The complainant had been asked specifically whether there were any cuts to her scalp or other breaks of the skin caused while her hair was being cut. She replied that there were none. Accordingly, there was, so it was submitted, no actual bodily harm and the critical ingredient of the offence had not been established.
So far as the prosecution was concerned, the contention before the Justices was that cutting someone's hair without her consent was obviously an assault and naturally caused actual bodily harm. Bodily harm had its ordinary meaning. It included any hurt or injury calculated to interfere with the health or comfort of the victim. Emphasis was made on the potential interference with the comfort of Miss Tether.
It was further suggested that it was unnecessary for the purposes of the section 47 offence for the hurt to be permanent. The cutting of hair will eventually produce more hair —the hair will grow back. Cutting it nevertheless can be regarded as more than merely transient or trifling; at any rate in the context of this kind of case where the pony tail was removed rather than a single hair cut.
The Justices were referred to a number of authorities. They are well-known. They include: R v Donovan [1934] 2 KB 498; R v Brown [1994] AC 212; R v Chan-Fook [1999] Cr App R 147; R v Morris (Clarence Barrington) [1998] Cr App R 386. The Justices received advice from their legal adviser that there was no case law which indicated that the cutting off of a victim's hair amounted to actual bodily harm. The appellant and the respondent were given an opportunity to add anything they wished, but they were unable to produce any case law directly in point.
When considering whether or not there was a case to answer, the Justices were of the opinion that if Mr Smith had cut Miss Tether's hair, as she alleged, that would constitute an assault, but that it had not been established that she had been caused actual bodily harm because there was no bruising, bleeding or cutting of the skin. Cutting of the hair merely changed her appearance. There was no expert evidence regarding psychological or psychiatric harm, therefore although Miss Tether did suffer distress, taken on its own that too could not amount to actual bodily harm. The Justices concluded that an essential element of the offence was missing and found that there was no case to answer.
The question for the opinion of this court is:
"Were the Justices wrong in law to decide that the cutting of the complainant's hair did not constitute actual bodily harm?"
It is not in dispute that, on the facts, the Justices would have been entitled to find the respondent guilty of common assault. The single issue raised by the question in the case stated is whether his actions in cutting off the victim's hair against her wishes in the course of a common assault, without leaving any mark or breaking her skin, is capable of amounting to assault occasioning actual bodily harm. None of the previous reported decisions is directly in point. We have considered the authorities drawn to the attention of the Justices in the course of the hearing below.
Mr Green, for the...
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