From the Times, 31/01/2006

Why a bad hair day for Ms Tether was good for the law
By David Pannick, QC


WHEN Michael Ross Smith held down his former girlfriend Michelle Tether and cut off her ponytail with kitchen scissors last April a few weeks before her 21st birthday, she was understandably upset. As the biblical authority of Corinthians recognises, “flowing locks . . . are a woman’s glory”.

Mr Smith was prosecuted for assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The magistrates at Dudley, in the West Midlands, acquitted him in June on the hair-splitting ground that although there was undoubtedly an assault, it had not caused actual bodily harm, since there was no bruising or bleeding, and no evidence of any psychological or psychiatric harm. Ms Tether’s distress did not amount to bodily harm. And Mr Smith had not been charged with the lesser offence of common assault.

Two weeks ago, the Divisional Court allowed an appeal by the Director of Public Prosecutions. Sir Igor Judge, President of the Queen’s Bench Division, and Mr Justice Cresswell rejected the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done to Ms Tether. The court ruled that hair was part of the body to which it was attached. Therefore Mr Smith had a case to answer, and so the matter was sent back to the magistrates for a further hearing. As Alexander Pope wrote in 1712 in The Rape of the Lock, after Lord Petre cut off a lock of Arabella Fermor’s hair without her permission: “What dire offence from am’rous causes springs, / What mighty contests rise from trivial things.”

“Actual bodily harm” has long been defined to include any hurt or injury that interferes with the health or comfort of the victim, and which is more than transient or trifling. The Divisional Court judgment was undoubtedly correct. To damage an important physical aspect of a person’s bodily integrity must amount to actual bodily harm, even if the element damaged is dead skin or tissue. As Lord Denning noted in a sex discrimination case in 1979, “a woman’s hair is her crowning glory” and “she does not like it disturbed, especially when she has just had a ‘hair-do’ ”. If the defence were correct, Mr Smith would be not guilty even if he had shaved the head of his former partner, punishing her like the Frenchwomen in the famous photograph of the humiliation of Nazi collaborators after the liberation of France at the end of the Second World War. Long before Sir Igor Judge, the Book of Judges told the story of Samson and Delilah, in which an unwanted haircut had a serious adverse effect on the bodily integrity of the champion of the Israelites.

More difficult legal issues may arise. Presumably it is an assault occasioning actual bodily harm if someone cuts my toenails without my consent. But what if my enemy pulls off, and sets fire to, my wooden leg? Is this merely an item of property which may be vindicated by a prosecution for theft and criminal damage, or is it part of my body in a way that my overcoat is not?

Body parts can pose formidable jurisprudential problems. Last year, the Appellate Committee of the House of Lords allowed the defendant’s appeal from a Court of Appeal ruling that he was in “possession of an imitation firearm” when he tried to rob someone by pretending that his fingers in his pocket were a gun. Lord Bingham of Cornhill ruled that “an unsevered hand or finger is part of oneself. Therefore, one cannot possess it.” Lord Rodger of Earlsferry cited the Roman law authority Ulpian for the principle that “no one is to be regarded as the owner of his own limbs”. A bad hair day for the unfortunate prosecution counsel.

DPP v Smith will take its place in the hair law reports among other highlights. In 1970, in the United States Court of Appeals, First Circuit, Judge Coffin ruled that the suspension of a high school student for wearing his hair “falling loosely about his shoulders” was a breach of his constitutional rights. In 1976, a Michigan judge was reprimanded for reducing the bail required of a defendant on condition that he “had his hair cut in a fashion similar” to that of the judge. And in 1995, a county court judge awarded damages of £100 to a remand prisoner who complained that the barber at Doncaster prison, whom he had asked for a trim, gave him so short a haircut that it made him “look like a convict”.

Ms Tether’s unwanted haircut also draws attention to one other split end of the law. In 1993, the Law Commission advised that the archaic language of the Offences Against the Person Act 1861 was leading to “the waste of enormous amounts of valuable court, lawyer and citizen time and money simply on attempts to find out what the law is” and that it should be replaced with a modern and coherent criminal law regulating offences against the person. The Government should put on a hair shirt until it finds time to implement the proposal.

The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford.