House of Lords
Session 1997-98
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Judgments

Judgments - Regina v. Burstow
Regina v. Ireland

HOUSE OF LORDS

  Lord Goff of Chieveley   Lord Slynn of Hadley   Lord Steyn
  Lord Hope of Craighead   Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

REGINA

v.

BURSTOW
(APPELLANT)

REGINA


v.


IRELAND
(APPELLANT)


ON 24 JULY 1997



LORD GOFF OF CHIEVELEY


My Lords,

    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.



LORD SLYNN OF HADLEY


My Lords,

    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.



LORD STEYN


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. 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 offensive cards in the street where she lived. He was frequently, and unnecessarily, at her home and place of work. He surreptitiously took photographs of the victim and her family. He sent her a note which was intended to be menacing, and was so understood. The victim was badly affected by this campaign of harassment. It preyed on her mind. She was fearful of personal violence. A consultant psychiatrist stated that she was suffering from a severe depressive illness. In the Crown Court counsel asked for a ruling whether an offence of unlawfully and maliciously inflicting grievous bodily harm contrary to section 20 may be committed where no physical violence has been applied directly or indirectly to the body of the victim. The judge answered this question in the affirmative. Burstow thereupon changed his plea to guilty. The judge sentenced him to three year's imprisonment. Burstow applied for leave to appeal against conviction. The Court of Appeal heard full oral argument on the application, and granted the application for leave to appeal but dismissed the appeal. Two questions of law were canvassed before the Court of Appeal. First, there was the question whether psychiatric injury may amount to bodily harm under section 20. The Court of Appeal regarded itself as bound by the affirmative decision in Reg. v. Chan-Fook [1994] 1 W.L.R. 689. The second issue was whether in the absence of physical violence applied directly or indirectly to the body of the victim an offence under section 20 may be committed. The Court of Appeal concluded that this question must be answered in the affirmative. The concluding observations of Lord Bingham of Cornhill C.J. were as follows, at p. 149:

     "It is not straining language to speak of one person inflicting psychiatric injury on another. It would in our judgment be an affront to common sense to distinguish between section 18 and section 20 in the way contended for by the applicant. It would also, we think, introduce extreme and undesirable artificiality into what should be a very practical area of the law if we were to hold that, although grievous bodily harm includes psychiatric injury, no offence against section 20 is committed unless such psychiatric injury is the result of physical violence applied directly or indirectly to the body of the victim. The decision in Chan-Fook is in our view fatal to the applicant's submission."

In the result the Court of Appeal dismissed the appeal against conviction. The court certified the following point as of general importance, namely:

     "Whether an offence of inflicting grievous bodily harm under section 20 of the Offences against the Person Act 1861 can be committed where no physical violence is applied directly or indirectly to the body of the victim."

    It will be noted that in neither appeal is there an issue on mens rea: the appeals focus on questions of law regarding the actus reus.

The common question: Can psychiatric illness amount to bodily harm?

    It will now be convenient to consider the question which is common to the two appeals, namely, whether psychiatric illness is capable of amounting to bodily harm in terms of sections 18, 20 and 47 of the Act of 1861. The answer must be the same for the three sections.

    The only abiding thing about the processes of the human mind, and the causes of its disorders and disturbances, is that there will never be a complete explanation. Psychiatry is and will always remain an imperfectly understood branch of medical science. This idea is explained by Vallar's psychiatrist in Iris Murdoch's The Message to the Planet:

     "Our knowledge of the soul, if I may use that unclinical but essential word, encounters certain seemingly impassable limits, set there perhaps by the gods, if I may refer to them, in order to preserve their privacy, and beyond which it may be not only futile but lethal to attempt to pass and though it is our duty to seek for knowledge, it is also incumbent on us to realise when it is denied us, and not to prefer a fake solution to no solution at all."

But there has been progress since 1861. And courts of law can only act on the best scientific understanding of the day. Some elementary distinctions can be made. The appeals under consideration do not involve structural injuries to the brain such as might require the intervention of a neurologist. One is also not considering either psychotic illness or personality disorders. The victims in the two appeals suffered from no such conditions. As a result of the behaviour of the appellants they did not develop psychotic or psychoneurotic conditions. The case was that they developed mental disturbances of a lesser order, namely neurotic disorders. For present purposes the relevant forms of neurosis are anxiety disorders and depressive disorders. Neuroses must be distinguished from simple states of fear, or problems in coping with every day life. Where the line is to be drawn must be a matter of psychiatric judgment. But for present purposes it is important to note that modern psychiatry treats neuroses as recognisable psychiatric illnesses: see Liability for Psychiatric Injury, Law Commission Consultation paper No. 137 (1995) Part III (The Medical Background); Mullany and Hanford, Tort Liability for Psychiatric Damages, (1993), discussion on "The Medical Perspective," at pp. 24-42, and particular at 30, footnote 88. Moreover, it is essential to bear in mind that neurotic illnesses affect the central nervous system of the body, because emotions such as fear and anxiety are brain functions.

    The civil law has for a long time taken account of the fact that there is no rigid distinction between body and mind. In Bourhill v. Young [1943] A.C. 92, 103 Lord Macmillan said:

     "The crude view that the law should take cognisance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct physical contact. The distinction between mental shock and bodily injury was never a scientific one. . . ."

This idea underlies the subsequent decisions of the House of Lords regarding post-traumatic stress disorder in McLoughlin v. O'Brian [1983] 1 A.C. 410, 418, per Lord Wilberforce; and Page v. Smith [1996] A.C. 155, 181A-D, per Lord Browne-Wilkinson. So far as such cases are concerned with the precise boundaries of tort liability they are not relevant. But so far as those decisions are based on the principle that the claimant must be able to prove that he suffered a recognisable psychiatric illness or condition they are by analogy relevant. The decisions of the House of Lords on post-traumatic stress disorder hold that where the line is to be drawn is a matter for expert psychiatric evidence. By analogy those decisions suggest a possible principled approach to the question whether psychiatric injury may amount to bodily harm in terms of the Act of 1861.

    The criminal law has been slow to follow this path. But in Reg. v. Chan-Fook [1994] 1 W.L.R. 689 the Court of Appeal squarely addressed the question whether psychiatric injury may amount to bodily harm under section 47 of the Act of 1861. The issue arose in a case where the defendant had aggressively questioned and locked in a suspected thief. There was a dispute as to whether the defendant had physically assaulted the victim. But the prosecution also alleged that even if the victim had suffered no physical injury, he had been reduced to a mental state which amounted to actual bodily harm under section 47. No psychiatric evidence was given. The judge directed the jury that an assault which caused an hysterical and nervous condition was an assault occasioning actual bodily harm. The defendant was convicted. Upon appeal the conviction was quashed on the ground of misdirections in the summing up and the absence of psychiatric evidence to support the prosecution's alternative case. The interest of the decision lies in the reasoning on psychiatric injury in the context of section 47. In a detailed and careful judgment given on behalf of the court Hobhouse L.J. said (at p. 695G-H)):

      "The first question on the present appeal is whether the inclusion of the word 'bodily' in the phrase 'actual bodily harm' limits harm to harm to the skin, flesh and bones of the victim. . . . The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties."

In concluding that "actual bodily harm" is capable of including psychiatric injury Hobhouse L.J. emphasised (at p. 696C) that "it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition." He observed that in the absence of psychiatric evidence a question whether or not an assault occasioned psychiatric injury should not be left to the jury.

    The Court of Appeal, as differently constituted in Ireland and Burstow, was bound by the decision in Chan-Fook. The House is not so bound. Counsel for the appellants in both appeals submitted that bodily harm in Victorian legislation cannot include psychiatric injury. For this reason they argued that Chan-Fook was wrongly decided. They relied on the following observation of Lord Bingham of Cornhill C.J. in Burstow [1997] 1 Cr.App.R. 144, 148:

     "Were the question free from authority, we should entertain some doubt whether the Victorian draftsman of the 1861 Act intended to embrace psychiatric injury within the expressions 'grievous bodily harm' and 'actual bodily harm'."

Nevertheless, the Lord Chief Justice observed that it is now accepted that in the relevant context the distinction between physical and mental injury is by no means clear cut. He welcomed the ruling in Chan-Fook: at p. 149B. I respectfully agree. But I would go further and point out that, although out of considerations of piety we frequently refer to the actual intention of the draftsman, the correct approach is simply to consider whether the words of the Act of 1861 considered in the light of contemporary knowledge cover a recognisable psychiatric injury. It is undoubtedly true that there are statutes where the correct approach is to construe the legislation "as if one were interpreting it the day after it was passed:" The Longford (1889) 14 P.D. 34. Thus in The Longford the word "action" in a statute was held not to be apt to cover an Admiralty action in rem since when it was passed the Admiralty Court "was not one of His Majesty's Courts of Law:" (see pp. 37, 38.) Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. Recognising the problem Lord Thring, the great Victorian draftsman of the second half of the last century, exhorted draftsmen to draft so that "An Act of Parliament should be deemed to be always speaking": Practical Legislation (1902), p. 83; see also Cross, Statutory Interpretation, 3rd ed. (1995), p. 51; Pearce and Geddes, Statutory Interpretation in Australia, 4th ed. (1996), pp. 90-93. In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the "always speaking" variety: see Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A.C. 800 for an example of an "always speaking" construction in the House of Lords.

    The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the Act 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant enquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the "always speaking" type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.

    For these reasons I would, therefore, reject the challenge to the correctness of Chan-Fook [1994] 1 W.L.R. 689. In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that "bodily harm" in sections 18, 20 and 47 must be interpreted so as to include recognizable psychiatric illness.

Reg. v. Burstow: the meaning of "inflict" in section 20

    The decision in Chan-Fook opened up the possibility of applying sections 18, 20 and 47 in new circumstances. The appeal of Burstow lies in respect of his conviction under section 20. It was conceded that in principle the wording of section 18, and in particular the words "cause any grievous bodily harm to any person" do not preclude a prosecution in cases where the actus reus is the causing of psychiatric injury. But counsel laid stress on the difference between "causing" grievous bodily harm in section 18 and "inflicting" grievous bodily harm in section 20. Counsel argued that the difference in wording reveals a difference in legislative intent: inflict is a narrower concept than cause. This argument loses sight of the genesis of sections 18 and 20. In his commentary on the Act of 1861 Greaves, the draftsman, explained the position: The Criminal Law Consolidation and Amendment Acts, 2nd ed. (1862). He said (at pp. 3-4):

 
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