Assault occasioning Actual Bodily Harm (1)
D** is charged with assault occasioning actual bodily harm. There are two parts to the offence of assault occasioning actual bodily harm.
(1) an assault – that is the unlawful use of force - for example punching or kicking a victim; and
(2) that one of those punches or kicks caused actual bodily harm. That means any hurt or injury that interferes with the health or comfort of the victim. The injury need not be serious or permanent.
It is enough for the assault to cause a minor or temporary injury.
The injuries described by C** and Dr ** and shown in the photographs - **bruising under her right lower jaw, pain and tenderness to her head and a cut to her knee - do amount to actual bodily harm.
C** says that those injuries were caused when D** punched and kicked her. If that is what happened, the defendant is guilty of assault occasioning actual bodily harm.
D** denies this. He says **.
So, the key question for you to answer in relation to Count *, having regard to all the evidence is
Are you sure that D** caused the injuries described by kicking or punching C**?
If the answer is “yes”, the defendant is guilty of Count *. If the answer is “no”, he is not guilty of Count *.
Assault occasioning Actual Bodily Harm (2)
D** is charged with assault occasioning actual bodily harm. There are two parts to the offence of assault occasioning actual bodily harm.
(1) an assault – that is the unlawful use of force - for example hitting someone with an ** or punching him; and
(2) that that assault caused actual bodily harm. That means any hurt or injury that interferes with the health or comfort of the victim. The injury need not be serious or permanent.
It is enough for the assault to cause a minor or temporary injury.
The injury described by C** and the A&E Consultant, Mr ** – a cut to ** - amounts to actual bodily harm.
C**’s evidence is that D** was the aggressor who attacked him with a ** causing that injury. If C**’s account is correct, D** is guilty of assault occasioning actual bodily harm. However, D** denies this. He says that C** was the aggressor and that he punched him once in self defence. He does not accept that he caused any injury. If that account may be correct, D** is not guilty.
Self Defence
So, what is the law concerning self defence? A person who is attacked or believes that he is about to be attacked may use such force as is reasonably necessary to defend himself. If that is the case he is acting in lawful self-defence, and is entitled to be found ‘Not Guilty’.
It is for the prosecution to make you sure that a defendant was not acting in lawful self-defence. He does not have to prove anything.
A person only acts in lawful self-defence if, in all the circumstances, he believes that it is necessary for him to defend himself and if the amount of force that he uses in doing so is reasonable.
So there are two key questions for you to answer separately in relation to each defendant:
1. Did D** honestly believe, or may he honestly have believed, that it was necessary to defend himself? A person who knows he does not need to resort to violence does not act in lawful self-defence. If you are sure that he did not honestly believe that it was necessary to defend himself, then self-defence does not arise in this case. But if you decide that he was or may have been acting in that belief, you must consider the second question:
2. Taking the circumstances and the danger as he honestly believed them to be, was the amount of force used reasonable? Force used in self-defence is unreasonable and unlawful if it is out of all proportion to the nature of the attack, or is in excess of what is really required of the defendant to defend himself.
Remember that a person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. If you conclude that he did no more than he honestly and instinctively thought was necessary to defend himself, you may think that would be strong evidence that the amount of force used was reasonable. However, if you are sure that the force used by him was unreasonable, he cannot have been acting in lawful self-defence.
So, there are three key questions for you to answer, having regard to all the evidence and the directions which I give you, are
1, Did D** cause the injury to C**’s forehead?
If the answer may be no, D** is not guilty and you do not have to consider the next two questions. If you are sure that the answer is yes, move on to the second question.
2, Did D** honestly believe, or may he honestly have believed, that it was necessary to defend himself?
If you are sure that the answer to that question is no, he is guilty and you do not have to consider question 3. If the answer may be yes, move on to question 3.
3, Taking the circumstances and the danger as D** honestly believed them to be, was the amount of force he used reasonable?
If you are sure that the answer to that question is no, he is guilty. If the answer may be yes, he is not guilty.
Assault occasioning Actual Bodily Harm (3) (two defendants/drink/self defence/defence of another)
The defendants are both charged with assault occasioning actual bodily harm. There are two parts to the offence of assault occasioning actual bodily harm.
(1) an assault – that is the unlawful use of force - for example punching or hitting a victim; and
(2) that one of those punches or hits caused actual bodily harm. That means any hurt or injury that interferes with the health or comfort of the victim. The injury need not be serious or permanent.
It is enough for the assault to cause a minor or temporary injury.
The injuries described by C** and Dr ** and shown in the photographs - ***bruising around the eye, cuts to the face and head, having teeth knocked out and bruising and grazes to the arms - do amount to actual bodily harm.
Drink and drugs
There is no doubt that all three people in the flat that evening had been drinking and smoking cannabis. D1** and D2** both said when giving evidence that they were drunk and “high”.
However, the mere fact that a defendant’s mind was affected by drink or drugs, so that he or she acted in a way in which he or she would not have done in other circumstances, does not amount to a defence to the charge of ABH – although it may be relevant to the first part of self-defence which I shall mention in a moment.
C**’s evidence was that the defendants started the violence. He implies that he did nothing to provoke it. Even if he did so something which merely annoyed, angered, or provoked the defendants, that does not justify their admitted attack upon him. That does not provide a defence.
Self Defence or Defence of another
D2** accepts that she hit C** with anything that she could lay her hands on, but she says that she was acting in self defence, to prevent herself from **being raped. D1** accepts that he punched C** once. He says that he was acting to protect D2** from **being raped. If that is right, they were legally entitled to defend themselves.
So, what is the law concerning self defence? A person who is attacked or believes that he is about to be attacked may use such force as is reasonably necessary to defend himself. If that is the case he is acting in lawful self-defence, and is entitled to be found ‘Not Guilty’. The same applies if he is acting to defend another person. It is for the prosecution to make you sure that a defendant was not acting in lawful self-defence. He or she does not have to prove anything.
A person only acts in lawful self-defence if, in all the circumstances, he believes that it is necessary for him to defend himself and if the amount of force that he uses in doing so is reasonable. So there are two main questions for you to answer separately in relation to each defendant:
1. Did D2** honestly believe, or may she honestly have believed, that it was necessary to defend herself? Did D1** honestly believe, or may he honestly have believed, that it was necessary to defend D2**? A person who knows he does not need to resort to violence does not act in lawful self-defence. If you are sure that each defendant did not honestly believe that it was necessary to defend himself, then self-defence does not arise in this case. But if you decide that he was or may have been acting in that belief, you must consider the second question:
2. Taking the circumstances and the danger as each defendant honestly believed them to be, was the amount of force used reasonable? Force used in self-defence is unreasonable and unlawful if it is out of all proportion to the nature of the attack, or is in excess of what is really required of the defendant to defend himself.
Remember that a person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. If you conclude that each defendant did no more than he or she honestly and instinctively thought was necessary to defend themselves, you may think that would be strong evidence that the amount of force used was reasonable. However, if you are sure that the force used by a defendant was unreasonable, he or she cannot have been acting in lawful self-defence.
So, the key questions for you to answer in relation to Count 1, having regard to all the evidence and the directions which I give you, are
1. Did D2** honestly believe, or may she honestly have believed, that C** was **trying to rape her so that it was necessary to defend herself?
If you are sure that the answer to that question is no, she is guilty of Count 1 and you do not have to consider question 2. If the answer may be yes, move on to question 2.
2. Taking the circumstances and the danger as D2** honestly believed them to be, was the amount of force she used reasonable?
If you are sure that the answer to that question is no, she is guilty of Count 1. If the answer may be yes, she is not guilty of Count 1.
3. Did D1** honestly believe, or may he honestly have believed, that C** was trying to rape D2*8 so that it was necessary to defend her?
If you are sure that the answer to that question is no, he is guilty of Count 1, and you do not have to consider question 4. If the answer may be yes, move on to question 4.
4. Taking the circumstances and the danger as D1** honestly believed them to be, was the amount of force he used reasonable?
If you are sure that the answer to that question is no, he is guilty of Count 1. If the answer may be yes, he is not guilty of Count 1.
Racially Aggravated Assault occasioning Actual Bodily Harm (4) (self defence)
There are two elements of this offence. Firstly, an assault occasioning actual bodily harm, and secondly the element of racial aggravation.
Assault occasioning actual bodily harm
For the purposes of this case there are two parts to an assault occasioning actual bodily harm.
First an assault – that is the unlawful use of force - for example punching someone.
And secondly that the assault, the punch caused actual bodily harm. That means any hurt or injury that interferes with the health or comfort of the victim. The injury need not be serious or permanent.
It is enough for the assault to cause a minor or temporary injury.
The injuries described by Dr ** do amount to actual bodily harm.
D** accepts that he punched C** once, but he says that he was acting in self defence. He says that he was first punched by C**.
So, what is the law concerning self defence? A person who is attacked or believes that he is about to be attacked may use such force as is reasonably necessary to defend himself. If that is the case he is acting in lawful self-defence, and is entitled to be found ‘Not Guilty’. It is for the prosecution to make you sure that the defendant was not acting in lawful self-defence. He does not have to prove anything.
A person only acts in lawful self-defence if in all the circumstances he believes that it is necessary for him to defend himself and if the amount of force that he uses in doing so is reasonable. So there are two main questions for you to answer:
1. Did the defendant honestly believe or may he honestly have believed that it was necessary to defend himself? A person who knows he does not need to resort to violence does not act in lawful self-defence. If you are sure that the defendant did not honestly believe that it was necessary to defend himself, then self-defence does not arise in this case. But if you decide that he was or may have been acting in that belief, you must consider the second question:
2. Taking the circumstances and the danger as the defendant honestly believed them to be, was the amount of force which he used reasonable? Force used in self-defence is unreasonable and unlawful if it is out of all proportion to the nature of the attack, or is in excess of what is really required of the defendant to defend himself.
Remember that a person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. If you conclude that the defendant did no more than he honestly and instinctively thought was necessary to defend himself, you may think that would be strong evidence that the amount of force used by him was reasonable. If you are sure that the force used by the defendant was unreasonable, he cannot have been acting in lawful self-defence; but if force used was or may have been reasonable, then he is not guilty.
Racial aggravation
The prosecution must prove that at the time of any assault, or immediately before the assault, or immediately after the assault, the defendant demonstrated towards the victim of the offence hostility based on his membership or presumed membership of a particular racial group.
The prosecution say that he demonstrated that by shouting “**” towards C**. D** denies that he used those words.
If you are sure that he did assault C** and cause him actual bodily harm, but that there was no racial aggravation you should find him guilty of simple assault occasioning actual bodily harm, without racial aggravation.
This case really boils down to two key questions for you to answer, having regard to all the evidence and the directions which I give you.
Are you sure that the defendant hit C** first?
Are you sure that at or about the same time the defendant shouted “***” or words to that effect.?
If the answer to the first question is “no”, he is not guilty and you do not have to consider the second question. If the answers to both questions are “yes”, the defendant is guilty of racially aggravated assault occasioning actual bodily harm. If the answer to the first question is “yes”, but the answer to the second question is “no”, he is guilty of assault occasioning actual bodily harm but without racial aggravation.