Recognising the Role of the Emotion of Fear in Offences and Defences
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | 10.1177/0022018319877784 |
| Subject Matter | Articles |
Article
Recognising the Role
of the Emotion of Fear
in Offences and Defences
Susan SM Edwards
University of Buckingham, UK
Abstract
Anger, its part in human conduct and in crime commission has been much discussed and
accorded a privileged status within the law, while the role of fear has been less considered.
Notwithstanding, fear and related emotional states have received some recognition as intrinsic
elements of the perpetrator’s object integral to the actus reus of certain offences and relevant
to the defendant’s mens rea of some defences. The harm caused by deliberately or negligently
instilling fear in another is inconsistently considered in law as is its impact on criminal
responsibility and mens rea. Fear has been recently acknowledged as a permissible cause of loss
of self-control in a partial defence to murder (Coroners and Justice Act 2009 s 55(3)). It
remains a contested emotion and as with anger the male experience of what circumstances
trigger fear predominates.
Keywords
Fear, offences, defences, emotion, coercion, murder
Introduction
This article considers the recognition of fear and related emotions in the construction of some offences
and defences, exploring those offences where the perpetrator’s aim is to create a state of fear, shock or
alarm in another and those defences which recognise that fear may cause a person to commit a criminal
offence. There is no consistent legal framework or doctrinal coherence within the law regarding this
emotion. So, for example, while the perpetrator’s motive, purpose and intention in causing a state of
fear in another is recognised within some statutory provisions and identified as an element of the
offence, there are other offences, where fear and distress, while not explicated in the statutory pro-
vision, is nevertheless considered an integral component of the factual and evidential matrix. The
Protection of Harassment Act (PHA) 1977, is a significant watershed providing specifically for ‘fear
of violence’ (s 4) and ‘stalking involving fear of violence or serious alarm or distress’ (s 4A), recognise
these as harms to be regulated thus challenging the privileging of physical harm as the only assaultive
Corresponding author:
Susan SM Edwards, University of Buckingham, School of Law, Buckingham, MK18 1EG, UK.
E-mail: susan.edwards@buckingham.ac.uk
The Journal of Criminal Law
2019, Vol. 83(6) 450–472
ªThe Author(s) 2019
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DOI: 10.1177/0022018319877784
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wrongdoing.
1
Significantly, R v Ireland; R v Burstow
2
established that fear occasioned by silent
telephone calls made by a former partner could amount to ‘psychiatric injury’
3
constituting bodily
harm for the purposes of the Offences Against the Person Act (OAPA)1861. Horder
4
noted in 1998:
It is odd that fear remains comparatively under-analysed by criminal lawyers, as a possible species of harm, as
compared with bodily and psychiatric injury (of great concern both to criminal and civil lawyers) or with
‘moral offence’ (of great concern to liberal political thinkers). As a species of harm, fear has a relatively
transitory character inconsistent with its recognition as a kind of ‘bodily’ harm for the purposes of the
Offences against the Person Act 1861.
With regard to causation, the law is not ready however to concede a causal link between the harm and
fear occasioned by the perpetrator’s domestic abuse and the victim’s suicide.
5
Although the trial judge in
Dhaliwal said, ‘where “a decision to commit suicide has been triggered by a physical assault which
represents the culmination of a course of abusive conduct,” it would be possible for the Crown “to argue
that that final assault played a significant part in causing the victim’s death”’.
6
In RvBW
7
(Wallace), the
original trial was terminated in order for the Court of Appeal to consider the prosecution challenge on
two evidential rulings pursuant to s 58 Criminal Justice Act (CJA) 2003. In this case, Berlinah Wallace
had thrown sulphuric acid on her partner who sustained such horrific and life limiting injuries that he
sought euthanasiain Belgium and as a Belgium national was permitted to do so. The question for the court
was whether Wallace had in effect caused his death and if so could she be charged with murder and/or
manslaughter. The Court of Appeal ruled that the cause of the deceased’s injuries was sufficient to be ‘a’
cause, if not ‘the’ cause, of his death and ordered a retrial on a charge of murder such that the matter of
causationcould be put before a jury. At retrial,however the jury acquitted her of murderand manslaughter.
8
1. J Feinberg, The Moral Limits of the Criminal Law. Vol.1, Harm to Others (Oxford University Press, Oxford 1984).
2. R v Ireland; R v Burstow [1997] 4 All ER 225, ‘My Lords, 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’ per Lord Steyn at 228.
3. J Horder, ‘Reconsidering psychic assault’ [1998] Crim LR 392.
4. Ibid.
5. See R v Dhaliwal [2006] EWCA Crim 1139, ‘ ...the wife had committed suicide following the husband’s abuse of her, the
prosecution case depended on the submission that psychological injury without any recognised psychiatric illness was capable
of constituting ‘bodily harm’ within the meaning of ss 18, 20 and 47 of the 1861 Act. The judge ruled that there was no basis
upon which a reasonable jury, properly directed, could convict the defendant of either manslaughter or unlawful wounding’.
The prosecution applied for leave to appeal against the judge’s ruling under s 58 of the Criminal Justice Act 2003 and the Court
of Appeal confirmed the trial judge’s ruling. See also D Ormerod, ‘Suicide Resulting from Prolonged Abuse–Abuse Causing
Psychological Harm but not Recognised Psychiatric Illness or Condition’ [2006] Crim LR 923. J Horder and L McGowan,
‘Manslaughter by Causing Another’s suicide’ [2006] Crim LR 1035. ‘R v Dhaliwal’ Commentary: M Burton Judgment: V
Munro and S Shah’ in Feminist Judgments From Theory to Practice R Hunter, C McGlynn, E Rackley (2010 Hart). VE Munro
and R Aitken, ‘Adding Insult to Injury? The Criminal Law’s Response to Domestic Abuse—Related Suicide in England and
Wales’ [2018] Crim LR 732–41. See also Susan SM Edwards, ‘A Socio-Legal Evaluation of Gender Ideologies in Domestic
Violence Assault and Spousal Homicides’ (1985) 10(1–4) Victimology: An International Journal 186,187, nb 4, Policing
London No. 13 July/August 1984 LSPU Police Monitoring and Research Group, who writes ‘Krishna Sharma found hanging in
her own home may have been killed by her husband. Although the coroner’s verdict was one of suicide Krishna had for many
years been subjected to her husband’s violence ...the police had been approached on numerous occasions including the night
before her death when they had advised her to contact a Citizen’s Advice Bureau ...’. See also Krishna Sharma case cited in
Southall Black Sisters, Homebreakers to Jailbreakers (Zed Press, London 2003).
6. R v Dhaliwal [2006] EWCA Crim 1139.
7. RvBW[2018] EWCA Crim 690.
8. See <https://www.itv.com/news/2018-05-22/judge-to-hear-legal-submissions-ahead-of-acid-attack-sentencing/> (accessed 16
September 2019).
Edwards 451
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