Critically analyse the offence of assault occasioning actual bodily harm under s 47 of the Offences Against the Person Act 1861.

The offence of assault occasioning actual bodily harm is unsatisfactory because it is an offence of constructive liability whose mens rea need not correspond to the actus reus. To be convicted of assault occasioning actual bodily harm, an assault (causing a victim to apprehend imminent harm - R v Burstow) must be committed, and that assault must cause actual bodily harm. The defendant need only intend or be reckless as to the apprehension of imminent harm, not the level of bodily harm which is caused. This is unsatisfactory because it allows what Ashworth calls 'moral luck' to reign supreme in determining criminal liability - two defendants who did and intended exactly the same thing can be charged with two very different offences of assault and ABH, one much more severe than the other, simply because one was unlucky enough for his actions to have unintended consequences. Thus, the offence does not punish conduct or guilty intention - results, often entirely beyond the control of the accused, are decisive of the penalty they will suffer.
Some have defended the offence's focus on the severity of results by saying that the law ought to reflect public sentiment - that we feel more appalled when someone causes serious harm, and that for justice to be seen to be done, defendants who cause more harm ought to be punished more severely. This argument only acknowledges the existence of malicious offenders, however. How about those who positively intended not to harm, but only to scare, and acted to protect their victims? The implications of the doctrine of constructive liability are even more keenly felt in more serious offences. Murder requires only that the defendant intended to cause grievous bodily harm (R v Cunningham) for its mens rea. Thus, even those coerced by criminal gangs or terror groups into committing atrocities against opponents, but who may, as is common practice in such groups, have 'kneecapped' them in order to prevent their deaths, will be liable for murder, not manslaughter, should they somehow die. The killer will receive a life sentence despite positively acting not to kill. They receive the unfair label of a murderer and are a clear example of why the constructive liability that links murder and ABH cannot be defended.