Sticks, Stones and Words: Emotional Harm and the English Criminal Law

AuthorJohn E. Stannard
Published date01 December 2010
Date01 December 2010
Subject MatterArticle
Sticks, Stones and Words:
Emotional Harm and the
English Criminal Law
John E. Stannard*
Abstract This article discusses the rule that criminal liability does not
normally attach for the causing of emotional harm or mental distress in
the absence of proof of a ‘recognised psychiatric injury’. It considers what
is involved in the diagnosis of psychiatric injury, and to what extent the
difference between such injury and ‘ordinary’ mental distress is one of
degree rather than one of kind. It reviews the situations in which the law
already criminalises the infliction of emotional harm without proof of
psychiatric injury, and assesses the policy arguments for drawing the
distinction in the normal case. The article concludes that the law can and
should adopt a more flexible approach to cases of this sort.
Keywords Law and emotion; Criminal liability; Assault; Mental
distress; ‘Recognised psychiatric injury’
Those who were subject in their younger days to the attentions of the
school bully will often have been regaled with the proverb: ‘Sticks and
stones may break my bones, but words will never hurt me’. Such
sentiments provide scant comfort to the victim, and when it is taken to
extremes emotional abuse can have consequences of the gravest kind.
Such was the case of Megan Meier, a young girl with a history of
depression, who committed suicide in Dardenne Prairie, Missouri after
her online boyfriend, Josh Evans, indicated that he wanted nothing
more to do with her. At first the conclusion was that nobody was really
to blame, but it then transpired that there was no such person as Josh
Evans, and that the whole relationship had been set up by one Lori
Evans, the mother of a girl with whom Megan Meier had quarrelled at
school, with the aim of gathering information on Meier and using it to
humiliate her—a plan that unfortunately was all too successful.1
Any hope that Evans might be prosecuted for the death was quickly
dashed by the authorities, who concluded that she had committed no
offence contrary to the criminal code of Missouri.2The position would
* School of Law, Queen’s University, Belfast; e-mail:
This article is based on a paper given at the conference of the Association for the
Study of Law, Culture and the Humanities in Berkeley, California in March 2008,
and was written up during a period spent as a Visiting Scholar at the Center for
the Study of Law and Society at Berkeley in the spring and summer of 2009. I am
grateful to Kathy Abrams (University of California, Berkeley) and to John
Stanton-Ife (King’s College, London) for their help and advice.
1New York Times, 27 November 2008.
2 She was subsequently indicted by a grand jury and convicted on federal computer
charges, but the convictions were tentatively quashed by a federal judge: Los
Angeles Times, 2 July 2009.
533The Journal of Criminal Law (2010) 74 JCL 533–556
have been the same in English law, as the sad case of Dhaliwal3so clearly
shows. In Dhaliwal the defendants wife was found hanging in an
outhouse. She had committed suicide, and evidence emerged which
suggested that over a long period she had been subjected to various
forms of abuse on his part, mostly of a psychological nature though it
also involved some physical assaults.4The defendant was charged with
manslaughter and with the iniction of grievous bodily harm contrary
to s. 20 of the Offences Against the Person Act 1861. However, this was
not a straightforward case for the prosecution, despite evidence being
given that the overwhelming primary cause of the victims death was
the domestic abuse she had suffered at the hands of her husband.5If the
death had resulted from a physical attack, there would have been no
problem,6but though there was certainly evidence that such attacks had
taken place the prosecution were unable to establish the necessary
causal link between any of these and the death of the victim.7Again,
there would have been no problem if the abuse had brought about any
recognised psychiatric illness on the part of the victim,8but the expert
evidence on this point was at best inconclusive.9So the Court of Appeal
had to decide whether, in the absence of a recognised psychiatric illness,
psychological injury of this sort was capable of amounting to bodily
harm within the meaning of the Offences Against the Person Act.10 If
not, the defendant could not be guilty of the s. 20 offence, nor could he
be guilty of manslaughter.
The Court of Appeal concluded that no conviction was possible on
these facts. Though the notion of bodily harm was capable of including
psychiatric injury, it did not include mere emotions or states of mind
that were not themselves evidence of some identiable clinical condi-
tion. 11 The defendant therefore had to be acquitted.12
The upshot is that if I give someone a slight push and it unexpectedly
kills them, that is manslaughter, but if I hound them to their death by a
sustained course of psychological and emotional abuse it is not. It seems
an affront to justice that the criminal law is unable to cope with this sort
of situation.13
The purpose of this article is to examine the approach of the criminal
law of England and Wales to the iniction of emotional harm. First of all,
since the legal and psychological concepts of emotion are not the same,
it will be necessary to dene what is meant by emotional harm in the
3 [2006] EWCA Crim 1139, [2006] 2 Cr App R 24; J. Horder and L. McGowan,
Manslaughter by Causing Anothers Suicide [2006] Crim LR 1035.
4 [2006] EWCA Crim 1139 at [3].
5 Ibid. at [6].
6DPP v Newbury [1977] AC 500.
7 [2006] EWCA Crim 1139 at [7].
8R v Chan-Fook [1994] 1 WLR 689; R v Ireland; Burstow [1998] AC 147.
9 [2006] EWCA Crim 1139 at [11][16].
10 Ibid. at [17].
11 Ibid. at [23].
12 Ibid. at [33].
13 For the same argument in relation to the law of tort, see H. Teff, Causing Psychiatric
and Emotional Harm: Reshaping the Boundaries of Liability (Hart Publishing: Oxford,
2009) 1.
The Journal of Criminal Law

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