Divisional Court
| DOI | 10.1350/jcla.68.6.459.54142 |
| Date | 01 November 2004 |
| Published date | 01 November 2004 |
| Subject Matter | Divisional Court |
Divisional Court
Omission to Act Can Amount to an Assault or Battery
Director of Public Prosecutions vSantana-Bermudez [2003] EWHC
Admin 2908, [2004] Crim LR 471
The respondent was approached by a police officer who suspected that
he was operating illegally as a ticket tout. The officer, pursuant to s. 1 of
the Police and Criminal Evidence Act 1984, informed him of her inten-
tion to effect a full body search. In response to a direct question about
possession of needles or sharps on his person, the respondent said ‘No’.
After this the officer commenced the search and put two fingers into one
of the small pockets in the respondent’s jacket. Unfortunately her finger
was pierced by a hypodermic needle. Subsequently, another needle was
produced from a different pocket. The officer stated, ‘I thought you
didn’t have any sharps on you’, but the respondent simply shrugged his
shoulders and smirked. In the magistrates’ court he was charged with an
offence under s. 47 of the Offences against the Person Act 1861 of assault
occasioning actual bodily harm and following conviction he appealed.
Before the Crown Court the defence contended that there was no case
to answer on the premise that an omission to act could not amount to an
assault or battery. This contention found support and concurrence in the
court. The verdict was that the evidence did not disclose any positive act
committed by him, and that his false replies to questions did not trans-
mogrify a negative omission to act into a positive act. An appeal by way
of case stated was brought by the prosecution.
H
ELD
,
ALLOWING THE APPEAL
,it was incorrect of the Crown Court to
determine that there was no evidential basis for the actus reus of assault
occasioning actual bodily harm. An individual who by act or word or a
synergy of both manufactures a danger and consequentially exposes
another to a reasonably foreseeable risk of injury which materialises,
creates an evidential basis for the actus reus of an assault occasioning
actual bodily harm. The deliberately false assurance given by the respon-
dent to the officer about non-possession of needles thereby exposed her
to a reasonably foreseeable risk of an injury which materialised. The
offence will be established when the prosecution can also prove mens rea
ingredients, an intention to assault or subjective recklessness.
C
OMMENTARY
The issue presented in this case has never been squarely addressed by
the courts. In order to set it in context it is important to consider
principles relating to supervening fault and duty to act.
(1) Supervening fault
The Divisional Court in Fagan v Metropolitan Police Commissioner [1969] 1
QB 439, by a majority, asserted that a battery cannot be effected by a
simple omission alone. Instead, liability has been found through the
459
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