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Criminal Law in Practice

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Section 47 of the 1861 Act is a different matter entirely. According to this provision, the actus rea of actual bodily harm is assault which is a summary offence by virtue of Section 39 of the Criminal Justice Act 1988.3

The House of Lords maintained that all that had to be shown is that the defendant’s conduct caused the harm.4 In Rex v. Donovan, Swift J said that bodily harm ‘has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.’5 The word ‘damage’ is used to define Tiny’s injury which automatically implies that the injury is not ‘transient and trifling’.
According to the ruling in R v Vienna, the requisite mens rea involves proof that the defendant’s conduct either recklessly or maliciously caused the victim to fear immediate force.6 However, by virtue of Lord Lane’s comments in Attorney Generals Reference (No 6 of 1980) Newly can invoke the defence of consent. Lord Lane said that ‘it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim.’7 Obviously, if a person consents to the force he cannot be said to suffer fear and/or anticipation. Therefore consent would operate to negate fear.

The only proviso is that the conduct causing the harm or the injury falls within the rules of the game.8 Karate is a very physical sport where the use of force is virtually mandatory. In R v Barnes [2004] Lord Woolf explained that it is possible to consent to the use of force outside the rules of the game in certain circumstances.&nbsp. For instance, a participant can respond to the heat of the moment and suffer ejection and yet that conduct might rise to the level of unlawful assault.&nbsp. Based on this ruling by the Court of Appeal Newly has the defence of consent given that karate is a combative sport.