R v Ireland; R v Burstow

I have had an opportunity of reading in draft the speeches prepared by my noble and learned friends, Lord Steyn and Lord Hope of Craighead. I agree with them, and for the reasons they give I would dismiss both appeals.

I have had the advantage of reading the draft of the speech prepared by my noble and learned friend, Lord Steyn. For the reasons he gives I too would dismiss both appeals. I would, however, reiterate that in Ireland the question as to whether there was a fear of immediate violence for the purposes of section 47 of the Act and the question as to how the concept of immediacy is to be applied, in a case where words or silence by someone using the telephone are relied on as constituting the assault, did not arise for decision.

It is easy to understand the terrifying effect of a campaign of telephone calls at night by a silent caller to a woman living on her own. It would be natural for the victim to regard the calls as menacing. What may heighten her fear is that she will not know what the caller may do next. The spectre of the caller arriving at her doorstep bent on inflicting personal violence on her may come to dominate her thinking. After all, as a matter of common sense, what else would she be terrified about? The victim may suffer psychiatric illness such as anxiety neurosis or acute depression. Harassment of women by repeated silent telephone calls, accompanied on occasions by heavy breathing, is apparently a significant social problem. That the criminal law should be able to deal with this problem, and so far as is practicable, afford effective protection to victims is self evident.

From the point of view, however, of the general policy of our law towards the imposition of criminal responsibility, three specific features of the problem must be faced squarely. First, the medium used by the caller is the telephone: arguably it differs qualitatively from a face-to-face offer of violence to a sufficient extent to make a difference. Secondly, ex hypothesi the caller remains silent: arguably a caller may avoid the reach of the criminal law by remaining silent however menacing the context may be. Thirdly, it is arguable that the criminal law does not take into account "mere" psychiatric illnesses.

At first glance it may seem that the legislature has satisfactorily dealt with such objections by section 43(1) of the Telecommunications Act 1984 which makes it an offence persistently to make use of a public telecommunications system for the purpose of causing annoyance, inconvenience or needless anxiety to another. The maximum custodial penalty is six months imprisonment. This penalty may be inadequate to reflect a culpability of a persistent offender who causes serious psychiatric illness to another. For the future there will be for consideration the provisions of sections 1 and 2 of the Protection from the Harassment Act 1997, not yet in force, which creates the offence of pursuing a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. The maximum custodial penalty is six months imprisonment. This penalty may also be inadequate to deal with persistent offenders who cause serious psychiatric injury to victims. Section 4(1) of the Act of 1997 which creates the offence of putting people in fear of violence seems more appropriate. It provides for maximum custodial penalty upon conviction on indictment of five years imprisonment. On the other hand, section 4 only applies when as a result of a course of conduct the victim has cause to fear, on at least two occasions, that violence will be used against her. It may be difficult to secure a conviction in respect of a silent caller: the victim in such cases may have cause to fear that violence may be used against her but no more. In my view, therefore, the provisions of these two statutes are not ideally suited to deal with the significant problem which I have described. One must therefore look elsewhere.

It is to the provisions of the Offences against the Person Act 1861 that one must turn to examine whether our law provides effective criminal sanctions for this type of case. In descending order of seriousness the familiar trilogy of sections (as amended) provide as follows:

"18. Whosoever shall unlawfully and maliciously by any means whatsoever … cause any grievous bodily harm to any person … with intent … to do some grievous bodily harm to any person, … shall be guilty of felony and being convicted thereof shall be liable … to [imprisonment] for life ….

"20. Whosoever shall unlawfully and maliciously … inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilt of a misdemeanour, and being convicted therefore shall be liable [to imprisonment … for not more than five years.]

"47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable … [to imprisonment for not more than five years]."

Making due allowance for the incongruities in these provisions, the sections can be described as "a ladder of offences graded in terms of relative seriousness": Ashworth, Principles of Criminal Law, 2nd ed. (1995), at p. 313. An ingredient of each of the offences is "bodily harm" to a person. In respect of each section the threshold question is therefore whether a psychiatric illness, as testified to by a psychiatrist, can amount to "bodily harm." If the answer to this question is no, it will follow that the Act of 1861 cannot be used to prosecute in the class of cases which I have described. On the other hand, if the answer to the question is yes, it will be necessary to consider whether the persistent silent caller, who terrifies his victim and causes her to suffer a psychiatric illness, can be criminally liable under any of these sections. Given that the caller uses the medium of the telephone and silence to terrify his victim, is he beyond the reach of these sections?

Similar problems arise in the case of the so called stalker, who pursues a campaign of harassment by more diffuse means. He may intend to terrify the woman and succeed in doing so, by relentlessly following her, by unnecessarily appearing at her home and place of work, photographing her, and so forth. Is he beyond the reach of the trilogy of sections in the Act of 1861?

The two appeals before the House

There are two appeals before the House. In Ireland the appellant was convicted on his plea of guilty of three offences of assault occasioning actual bodily harm, contrary to section 47 of the Act of 1861. The judgment of the Court of Appeal dismissing his appeal is reported: Reg. v. Ireland[1997] Q.B. 114. The case against Ireland was that during a period of three months in 1994 covered by the indictment he harassed three women by making repeated telephone calls to them during which he remain silent. Sometimes, he resorted to heavy breathing. The calls were mostly made at night. The case against him, which was accepted by the judge and the Court of Appeal, was that he caused his victim to suffer psychiatric illness. Ireland had a substantial record of making offensive telephone calls to women. The judge sentenced him to a total of three years imprisonment.

Before the Court of Appeal there were two principal issues. The first was whether psychiatric illness may amount to bodily harm within the meaning of section 47 of the Act of 1861. Relying on a decision of the Court of Appeal in Reg. v. Chan-Fook[1994] 1 W.L.R. 689 the Court of Appeal in Ireland's case concluded that psychiatric injury may amount to bodily harm under section 47 of the Act of 1861. The second issue was whether Ireland's conduct was capable of amounting to an assault. In giving the judgment of the court in Ireland's case Swinton Thomas L.J. said (at p. 119):

"It has been recognised for many centuries that putting a person in fear may amount to an assault. The early cases predate the invention of the telephone. We must apply the law to conditions as they are in the 20th century."

The court concluded that repeated telephone calls of a menacing nature may cause victims to apprehend immediate and unlawful violence. Given these conclusions of law, and Ireland's guilty plea, the Court of Appeal dismissed the appeal. The Court of Appeal certified the following question as being of general public importance, namely "As to whether the making of a series of silent telephone calls can amount in law to an assault." But it will also be necessary to consider the question whether psychiatric illness may in law amount to bodily harm under section 47 of the Act of 1861. Those are the issues of law before the House in the appeal of Ireland.

In Reg. v. Burstow the appellant was indicted on one count of unlawfully and maliciously inflicting grievous bodily harm, contrary to section 20 of the Act of 1861. The facts are fully set out in the reported judgment of the Court of Appeal: Reg. v. Burstow[1997] 1 Cr. App. R. 144. I can therefore describe the facts shortly. Burstow had a social relationship with a woman. She broke it off. He could not accept her decision. He proceeded to harass her in various ways over a lengthy period. His conduct led to several convictions and periods of imprisonment. During an eight month period in 1995 covered by the indictment he continued his campaign of harassment. He made some silent telephone calls to her. He also made abusive calls to her. He distributed...