R (T) v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY |
| Judgment Date | 04 February 2003 |
| Neutral Citation | [2003] EWHC 266 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4228/2002 |
| Date | 04 February 2003 |
[2003] EWHC 266 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Maurice Kay
CO/4228/2002
MR R HEARNDEN (instructed by A Meldrum & Co, Enfield, Middlesex) appeared on behalf of the CLAIMANT
MR P FIELDS (instructed by Crown Prosecution Service, Hertfordshire) appeared on behalf of the DEFENDANT
Tuesday, 4 February 2003
The case before me is an appeal by case stated from a decision of justices for the county of Hertford acting in and for the Petty Sessions Area of West Hertfordshire in respect of an adjudication at a Youth Court sitting at Hemel Hempstead. It follows that, the appeal arising from proceedings before a Youth Court, section 49 of the Children and Young Persons Act 1933 applies to prohibit publication of any material likely to lead to the identification of the appellant. Therefore, in any report of the case, the appellant should be referred to simply as "T".
The appellant was charged that on 18 November 2001 he assaulted John Marsh, thereby occasioning him actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. The trial in the Youth Court took place on 22 May 2002. The following facts were found by the Court:
"(a) In the evening of 18 November 2001 John David Marsh was present in Jarmans Park, Hemel Hemstead with a number of friends. He was approached by a group of boys, one of whom spoke to him and then head butted him. The Appellant was not the assailant.
"(b) Marsh did not retaliate, but continued to walk through the boys towards a nearby nightclub where he was refused admission. He retraced his steps towards the group which had previously confronted him.
"(c) On speaking with the group, Marsh was punched in the eye. He did not see who it was who had struck him.
"(d) After being punched in the eye Marsh attempted to run from the scene and was chased by a group which included the Appellant. When Marsh fell to the ground, he landed on his side. He saw the Appellant 3 to 4 metres away from him but coming towards him. He had a clear view and was certain that it was the Appellant who was approaching him.
"(e) Marsh covered his head with his arms and was kicked. Marsh momentarily lost consciousness and remembered nothing until being woken by a police officer, PC Hayley.
"(f) Marsh had been kicked unconscious by the Appellant. Although loss of consciousness was momentary it amounted to actual bodily harm.
"(g) John Marsh was chased by the Appellants' group with the intention of assaulting him.
"(h) The attack on Marsh was witnessed by PC Hayley who was on patrol duty in an unmarked police car. PC Hayley witnessed Marsh fall to the ground beside the police vehicle.
"(i) Although PC Hayley who attended Marsh noted that he had a bloody nose and swelling over his right eye those injuries were not proved to have been caused by the Appellant kicking him and may have been attributable to the earlier attacks on Marsh."
There was an issue at the trial as to whether the "momentary loss of consciousness" amounted to, or was capable of amounting to, "actual bodily harm" within the meaning of section 47. The justices were referred to some authority on the subject, including the case of R v Miller [1954] 2 QB 282. In the case stated they expressed the opinion that:
" … in the light of R v Miller… the unconsciousness suffered by Marsh as a result of the kick from the Appellant amounted to actual bodily harm."
They, accordingly, found the appellant guilty and on 19 June 2002 he was sentenced by way of a community punishment order of 40 hours and ordered to pay £50 costs.
The question posed by the justices for the opinion of this court is expressed in this way:
"Whether momentary loss of consciousness is sufficient to make out the offence of Assault Occasioning Actual Bodily Harm contrary to sec. 47 of The Offences Against the Person Act 1861."
In his submissions on behalf of the appellant, Mr Hearnden focuses on the well-known passage from the...
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