R v Ireland; R v Burstow
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 29 July 1996 |
| Neutral Citation | [1996] EWCA Crim J0729-19 |
| Judgment citation (vLex) | [1996] EWCA Crim J0514-10 |
| Docket Number | No. 96/1851/W4,No. 95/1963/Z5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 July 1996 |
[1996] EWCA Crim J0514-10
Lord Justice Swinton Thomas
Mr Justice Tucker
and
Mr Justice Longmore
No. 95/1963/Z5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
MR E EGAN ( MR P RICHARDS, 22.4.96) appeared on behalf
of the Appellant
MR R GRIFFITHS appeared on behalf of the Crown
Tuesday 14th May 1996
On 6th February 1995, in the Crown Court at Newport (Gwent) before His Honour Judge Prosser QC, this appellant pleaded guilty to three counts of assault occasioning actual bodily harm. On 10th March 1995 he was sentenced to serve three years' imprisonment on each count concurrently. He appeals against his conviction and his sentence with leave.
The appellant pleaded guilty to Counts 2, 3 and 5 in the indictment and not guilty to Counts 1 and 4. Those pleas were accepted.
Count 2 charged the appellant with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. The particulars of the offence charged him that on a day between 1st June 1994 and 11th September 1994 he assaulted Patricia Ann Hannam, thereby occasioning her actual bodily harm. Count 3 was in similar terms, charging him that on a day between 1st June 1994 and 11th September 1994 he assaulted Sarah Jane Williams, thereby occasioning her actual bodily harm. Count 5 charged him that on a day between 1st June 1994 and 11th September 1994 he assaulted Susan Young, thereby occasioning her actual bodily harm.
The charges arose as a result of the appellant making a large number of unwanted telephone calls to the three women. The telephone calls occurred very frequently between the dates set out in the counts in the indictment. When the women answered the telephone there was silence. The calls lasted sometimes for a minute or so, and sometimes for several minutes. On occasions there were repeated calls over a relatively short period. For example, one complainant said that she received no less than 14 telephone calls within an hour on 9th September 1994. The other complainants had similar experiences. Each of the complainants was examined by a psychiatrist, who said in his witness statement that the result of the repeated telephone calls was that each of them suffered significant psychological symptoms. For example, one of the complainants suffered from palpitations, difficultly in breathing and cold sweats of an intensity which made it difficult for her to leave her home or to answer the telephone. Another of the complainants suffered anxiety, inability to sleep, tearfulness, headaches, tingling in her fingers, dizziness and a constant feeling of being on edge. The third complainant suffered from stress, inability to sleep, and a skin condition brought about by her nervousness.
The issue that arises on this appeal is whether a telephone call, followed by silence, can constitute an assault for the purposes of section 47 of the Offences Against the Person Act 1861. Leave to appeal was granted in order that the Court could consider whether the facts spoken to in the witness statements disclosed an offence. The Crown conceded that if they did not, then the appellant should be permitted to change his plea and the convictions should be quashed.
It is submitted by Mr Phillip Richards, on behalf of the appellant, that the making of a telephone call, followed by silence, or a series of telephone calls, followed by silence, does not constitute an assault for the purposes of section 47 of the Offence Against the Person Act 1861.
An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. This definition, which is to be found in the 1996 Edition of Archbold at paragraph 19/166, has received judicial approval in a number of cases, most recently in R. v. Savage [1992] 1 AC 699, at page 740. Mr Richards submits that the facts relied upon by the prosecution do not disclose an apprehension on the part of the victims of immediate unlawful violence. He submits that violence cannot include psychological harm. He goes on to submit that before a defendant can be convicted of an offence under section 47, the Crown must prove:
(1) that the accused has completed the relevant act;
(2) that that act must have caused the victim to apprehend immediate and unlawful violence;
(3) the accused must have either intended the victim to apprehend violence or to have foreseen the risk that the victim might apprehend violence;
(4) that the act has caused actual bodily harm.
Mr Richards then submits that in this case there was no relevant act, that before there can be an apprehension of immediate and unlawful violence there must be physical proximity between the defendant and the victim, which is absent when the act consists of a telephone call, and that the facts complained of could not result in an apprehension of immediate violence.
It was held in Mike Chan-Fook (1994) 99 Cr.App.R. 147, that "actual bodily harm" may include injury to any part of the body, including internal organs, the nervous system and the brain. It is capable of including psychiatric injury, but not mere emotion such as fear, distress or panic. In the present case there was abundant evidence that the victims have suffered psychiatric damage, and this was conceded before Judge Prosser and by the appellant in this appeal. In Mike Chan-Fook Hobhouse LJ said, at page 151:
"Similarly an injury can be caused to someone by injuring their health: an assault may have the consequence of infecting the system with a disease or causing the victim to become ill. The injury may be internal and may not be accompanied by any external injury."
Mr Richards submits that because a person has sustained physical injury as a consequence of the act of the appellant, it does not follow that the act caused the victim to apprehend immediate and unlawful violence. In our judgment, if the Crown can prove that the victims have sustained actual bodily harm, in this case psychological harm, and that the accused must have intended the victims to sustain such harm, or have been reckless as to whether they did sustain such harm, and that harm resulted from an act or acts of the appellant, namely telephone calls followed by silence, it is open to the jury to find that he has committed an assault. As to immediacy, by using the telephone the appellant put himself in immediate contact with the victims, amd when the victims lifted the telephone they were placed in immediate fear and suffered the consequences to which we have referred.
Our attention was drawn to a number of cases concerning the definition of assault, some of them of some antiquity. It is of importance that an assault does not necessarily include a battery, and the distinction is important in this case. It has been recognised for many centuries that putting a person in fear may amount to an assault. The early cases pre-date the invention of the telephone. We must apply the law to conditions as they are in the 20th Century. In Tuberville v. Savage [1669] 1 Mod. Rep. 3, T laid his hand upon his sword saying, "If it were not Assize time I would not take such language." It was held that the act could have amounted to an assault but for "the declaration that he would not assault him, the Judges being in town." Pointing an imitation or toy gun at the victim, dangerous driving and kidnapping have all been held to be capable of amounting to an assault.
In Fagan v. Metropolitan Commissioner (1968) 52 Cr.App.R. 700, James J, in a judgment in which the Lord Chief Justice agreed, drew the distinction between an assault and a battery and said, at page 704:
"For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The ' actus reu's is the action causing the effect on the victim's mind… The ' mens rea' is the intention to cause that effect."
Smith v. Chief Superintendent, Woking Police Station (1983) 76 Cr.App.R. 234, is an important case for the purpose of this appeal. The defendant was charged under section 4 of the Vagrancy Act 1824 which provides:
"Every person being found…in any enclosed…garden for any unlawful purpose shall be deemed a rogue and a vagabond."
The defendant entered the grounds of a private house and looked through the windows of the house occupied by the victim. She was terrified. The Justices were of the opinion that the defendant had deliberately frightened the victim, and that that constituted an assault, and accordingly they found him guilty of the offence charged, i.e. being in an enclosed garden for an unlawful purpose, namely to assault the victim thereby causing her fear and shock. It was held that the defendant intended to frighten the victim and that she was frightened. Mr Richards endeavoured to distinguish that case from the present case by saying that it could not be proved that the victims in this case had any fear of some act of immediate violence.
In Smith it was contended by the defendant that an assault was the doing of act which intentionally or recklessly caused another to apprehend immediate and unlawful violence; that the evidence was that the victim had not been caused to have such apprehension; and that there was no evidence upon which the Justices could say that the defendant had intended she should so apprehend.
In his judgment Kerr LJ said, at page 237:
..."The question of law is: 'whether there was evidence upon which the magistrates' court could conclude that the purpose of the defendant was to assault [Miss M] and consequently "an unlawful purpose" within the meaning of the Vagrancy Act 1824.'…
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