|Judgments - Regina v. Burstow|
Regina v. Ireland continued
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The difference in language is therefore not a significant factor.
Counsel for Burstow then advanced a sustained argument that an assault is an ingredient of an offence under section 20. He referred your Lordships to cases which in my judgment simply do not yield what he sought to extract from them. In any event, the tour of the cases revealed conflicting dicta, no authority binding on the House of Lords, and no settled practice holding expressly that assault was an ingredient of section 20. And, needless to say, none of the cases focused on the infliction of psychiatric injury. In these circumstances I do not propose to embark on a general review of the cases cited: compare the review in Smith and Hogan, Criminal Law, 8th ed. (1996), pp. 440-441. Instead I turn to the words of the section. Counsel's argument can only prevail if one may supplement the section by reading it as providing "inflict by assault any grievous bodily harm." Such an implication is, however, not necessary. On the contrary, section 20, like section 18, works perfectly satisfactorily without such an implication. I would reject this part of counsel's argument.
But counsel had a stronger argument when he submitted that it is inherent in the word "inflict" that there must be a direct or indirect application of force to the body. Counsel cited the speech of Lord Roskill in Reg. v. Wilson (Clarence)  A.C. 942, 259E-260H, in which Lord Roskill quoted with approval from the judgment of the full court of the Supreme Court of Victoria in Reg. v. Salisbury  V.R. 452. There are passages that give assistance to counsel's argument. But Lord Roskill expressly stated (at p. 260H) that he was "content to accept, as did the [court in Salisbury] that there can be the infliction of grievous bodily harm contrary to section 20 without an assault being committed." In the result the effect of the decisions in Wilson and Salisbury is neutral in respect of the issue as to the meaning of "inflict." Moreover, in Burstow  1 Cr.App.R. 144, 149, the Lord Chief Justice pointed out that in Reg. v. Mandair  1 A.C. 208, 215, Lord Mackay of Clashfern L.C. observed with the agreement of the majority of the House of Lords: "In my opinion . . . the word 'cause' is wider or at least not narrower than the word 'inflict'". Like the Lord Chief Justice I regard this observation as making clear that in the context of the Act of 1861 there is no radical divergence between the meaning of the two words.
That leaves the troublesome authority of the decision Court for Crown Cases Reserved in Reg. v. Clarence (1888) 22 Q.B.D. 23. At a time when the defendant knew that he was suffering from a venereal disease, and his wife was ignorant of his condition, he had sexual intercourse with her. He communicated the disease to her. The defendant was charged and convicted of inflicting grievous bodily harm under section 20. There was an appeal. By a majority of nine to four the court quashed the conviction. The case was complicated by an issue of consent. But it must be accepted that in a case where there was direct physical contact the majority ruled that the requirement of infliction was not satisfied. This decision has never been overruled. It assists counsel's argument. But it seems to me that what detracts from the weight to be given to the dicta in Clarence is that none of the judges in that case had before them the possibility of the inflicting, or causing, of psychiatric injury. The criminal law has moved on in the light of a developing understanding of the link between the body and psychiatric injury. In my judgment Clarence no longer assists.
The problem is one of construction. The question is whether as a matter of current usage the contextual interpretation of "inflict" can embrace the idea of one person inflicting psychiatric injury on another. One can without straining the language in any way answer that question in the affirmative. I am not saying that the words cause and inflict are exactly synonymous. They are not. What I am saying is that in the context of the Act of 1861 one can nowadays quite naturally speak of inflicting psychiatric injury. Moreover, there is internal contextual support in the statute for this view. It would be absurd to differentiate between sections 18 and 20 in the way argued on behalf of Burstow. As the Lord Chief Justice observed in Burstow  1 Cr.App.R. 144, 149F, this should be a very practical area of the law. The interpretation and approach should so far as possible be adopted which treats the ladder of offences as a coherent body of law. Once the decision in Chan-Fook  1 W.L.R. 689 is accepted the realistic possibility is opened up of prosecuting under section 20 in cases of the type which I described in the introduction to this judgment.
For the reasons I have given I would answer the certified question in Burstow in the affirmative.
Reg. v. Ireland: Was there an assault?
It is now necessary to consider whether the making of silent telephone calls causing psychiatric injury is capable of constituting an assault under section 47. The Court of Appeal, as constituted in Ireland case, answered that question in the affirmative. There has been substantial academic criticism of the conclusion and reasoning in Ireland: see Archbold News, Issue 6, 12 July 1996; Archbold's Criminal Pleading, Evidence & Practice, (1995), Supplement No. 4 (1996), pp. 345-347; Smith and Hogan, Criminal Law, 8th ed., 413; Herring, "Assault by Telephone" by Jonathan Herring  C.L.J. 11; "Assault"  Crim.L.R. 434, 435-436. Counsel's arguments, broadly speaking, challenged the decision in Ireland on very similar lines. Having carefully considered the literature and counsel's arguments, I have come to the conclusion that the appeal ought to be dismissed.
The starting point must be that an assault is an ingredient of the offence under section 47. It is necessary to consider the two forms which an assault may take. The first is battery, which involves the unlawful application of force by the defendant upon the victim. Usually, section 47 is used to prosecute in cases of this kind. The second form of assault is an act causing the victim to apprehend an imminent application of force upon her: see Fagan v. Metropolitan Police Commissioner  1 Q.B. 439, 444D-E.
One point can be disposed of, quite briefly. The Court of Appeal was not asked to consider whether silent telephone calls resulting in psychiatric injury is capable of constituting a battery. But encouraged by some academic comment it was raised before your Lordships' House. Counsel for Ireland was most economical in his argument on the point. I will try to match his economy of words. In my view it is not feasible to enlarge the generally accepted legal meaning of what is a battery to include the circumstances of a silent caller who causes psychiatric injury.
It is to assault in the form of an act causing the victim to fear an immediate application of force to her that I must turn. Counsel argued that as a matter of law an assault can never be committed by words alone and therefore it cannot be committed by silence. The premise depends on the slenderest authority, namely, an observation by Holroyd J. to a jury that "no words or singing are equivalent to an assault": Meade's and Belt's case 1 (1823) 1 Lew. C.C. 184. The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying "come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words.
That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be "yes, depending on the facts." It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way "I will be at your door in a minute or two" may not be guilty of an assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call or calls on the victim. Such a prosecution case under section 47 may be fit to leave to the jury. And a trial judge may, depending on the circumstances, put a common sense consideration before jury, namely what, if not the possibility of imminent personal violence, was the victim terrified about? I conclude that an assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be guilty of an offence under section 47. In these circumstances no useful purpose would be served by answering the vague certified question in Ireland.
Having concluded that the legal arguments advanced on behalf of Ireland on section 47 must fail, I nevertheless accept that the concept of an assault involving immediate personal violence as an ingredient of the section 47 offence is a considerable complicating factor in bringing prosecutions under it in respect of silent telephone callers and stalkers. That the least serious of the ladder of offences is difficult to apply in such cases is unfortunate. At the hearing of the appeal of Ireland attention was drawn to the Bill which is annexed to Law Commission report, Legislating the Criminal Code: Offences Against the Person and General Principles, Consultation Paper (Law Com. No. 218) (1993) (Cmnd 2370). Clause 4 of that Bill is intended to replace section 47. Clause 4 provides that "A person is guilty of an offence if he intentionally or recklessly causes injury to another." This simple and readily comprehensible provision would eliminate the problems inherent in section 47. In expressing this view I do not, however, wish to comment on the appropriateness of the definition of "injury" in clause 18 of the Bill, and in particular the provision that "injury" means "impairment of a person's mental health."
The disposal of the appeals
The legal arguments advanced on behalf of Burstow have failed. The appeal must be dismissed.
The legal arguments advanced on behalf of Ireland have also failed. But counsel for the appellant submitted that the appeal should be allowed because on an examination of the statements there was no prima facie case against him. I reject this submission. The prosecution case was never fully deployed because Ireland pleaded guilty. The fact of his plea demonstrated his mens rea. It was said, however, that the ingredient of psychiatric injury was not established on the statements. It is true that the statement from the psychiatrist is vague. But I would not accept that read in context it was insufficient to allow the case to go before a jury. It would be an exceptional course, in the face of an unequivocal and deliberate plea of guilty, to entertain an appeal directed exclusively to the sufficiency of evidence. Such a course is not warranted in the present case. I would therefore dismiss the appeal of Ireland.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Steyn. I agree with it, and for the reasons which he gives I also would dismiss both appeals. I should like however to add a few words on the point which arises in Reg. v. Burstow as to the meaning of the word "inflict" in section 20 of the Offences against the Person Act 1861, and on the point which arises in Reg. v. Ireland as to whether the making of a series of silent telephone calls can amount in law to an assault within the meaning of section of section 47 of that Act.
Reg. v. Burstow: "inflict"
In this case the appellant changed his plea to guilty after a ruling by the trial judge that the offence of unlawfully and maliciously inflicting grievous bodily harm contrary to section 20 of the Act of 1861 may be committed where no physical violence has been applied directly or indirectly to the body of the victim. Counsel for the appellant accepted that if Reg. v. Chan-Fook  1 W.L.R. 689 was correctly decided, with the result that "actual bodily harm" in section 47 is capable of including psychiatric injury, the victim in this case had suffered grievous bodily harm within the meaning of section 20. But he submitted that no offence against section 20 had been committed in this case because, although the appellant might be said to have "caused" the victim to sustain grievous bodily harm, he had not "inflicted" that harm on her because he had not used any personal violence against her.
Counsel based his submission on the decision in Reg. v. Clarence (1888) 22 Q.B.D. 23. In that case it was held that some form of direct personal violence was required for a conviction under section 20. The use of the word "inflict" in the section was said to imply that some form of battery was involved in the assault. The conviction was quashed because, although the venereal infection from which the victim was suffering was the result of direct physical contact, there had been no violence used and thus there was no element of battery. It seems to me however that there are three reasons for regarding that case as an uncertain guide to the question which arises where the bodily harm which has resulted from the defendant's conduct consists of psychiatric injury.
The first is that the judges in Clarence were concerned with a case of physical, not psychiatric, injury. They did not have to consider the problem which arises where the grievous bodily harm is of a kind which may result without any form of physical contact. The second is that the intercourse had taken place with consent, as the defendant's wife was ignorant of his venereal disease. So there was no question in that case of an assault having been committed, if there was no element of violence or battery. Also, as Lord Roskill pointed out in Reg. v. Wilson (Clarence)  A.C. 242, 260C the judgments of the judges who formed the majority are not wholly consistent with each other. This casts some doubt on the weight which should be attached to the judgment when the facts are entirely different, as they are in the present case.
In Reg. v. Wilson, Lord Roskill referred at pp. 259E-260B, with approval to the judgment of the Supreme Court of Victoria in Reg. v. Salisbury  V.R. 452, in which the following passage appears, at p. 461:
At p. 260H Lord Roskill said that he was content to accept, as was the full court in Salisbury, that there can be an infliction of grievous bodily harm contrary to section 20 without an assault being committed. But these observations do not wholly resolve the issue which arises in this case, in the context of grievous bodily harm which consists only of psychiatric injury.
The question is whether there is any difference in meaning, in this context, between the word "cause" and the word "inflict". The fact that the word "caused" is used in section 18, whereas the word used in section 20 is "inflict," might be taken at first sight to indicate that there is a difference. But for all practical purposes there is, in my opinion, no difference between these two words. In Reg. v. Mandair  1 A.C. 208, 215B Lord Mackay of Clashfern L.C., said that the word "cause" is wider or at least not narrower than the word "inflict." I respectfully agree with that observation. But I would add that there is this difference, that the word "inflict" implies that the consequence of the act is something which the victim is likely to find unpleasant or harmful. The relationship between cause and effect, when the word "cause" is used, is neutral. It may embrace pleasure as well as pain. The relationship when the word "inflict" is used is more precise, because it invariably implies detriment to the victim of some kind.
In the context of a criminal act therefore the words "cause" and "inflict" may be taken to be interchangeable. As the Supreme Court of Victoria held in Salisbury  V.R. 452, it is not a necessary ingredient of the word "inflict" that whatever causes the harm must be applied directly to the victim. It may be applied indirectly, so long as the result is that the harm is caused by what has been done. In my opinion it is entirely consistent with the ordinary use of the word "inflict" in the English language to say that the appellant's actions "inflicted" the psychiatric harm from which the victim has admittedly suffered in this case. The issues which remain are issues of fact and, as the appellant pled guilty to the offence, I would dismiss his appeal.
In this case the appellant pled guilty to three contraventions of section 47 of the Act of 1861. He admitted to having made numerous telephone calls to three women, during which he remained silent when the women answered the telephone. These calls lasted sometimes for a minute or so, and sometimes for several minutes. On some occasions they were repeated over a relatively short period. There is no doubt that this conduct was intended to distress the victims, each of whom suffered as a result from symptoms of such a kind as to amount to psychiatric injury. But, for the appellant to be guilty of an offence contrary to section 47 of the Act of 1861, he must be held to have committed an act which amounts to an assault.
Plainly there was no element of battery --although counsel for the respondent made brief submissions to the contrary--as at no time was there any kind of physical contact between the appellant and his victims. As Swinton Thomas L.J. observed in the Court of Appeal  Q.B. 114, 119D, that is a fact of importance in this case. But it is not an end of the matter, because as he went on to say it has been recognised for many centuries that putting a person in fear may amount to what in law is an assault. This is reflected in the meaning which is given to the word "assault" in Archbold Criminal Pleading, Evidence and Practice (1997), p. 1594 para. 19-66, namely that an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. This meaning is well vouched by authority: see Reg. v. Venna  Q.B. 421; Reg. v. Savage  1 A.C. 699, 740F, per Lord Ackner.
The question is whether such an act can include the making of a series of silent telephone calls. Counsel for the appellant said that such an act could not amount to an assault under any circumstances, just as words alone could not amount to an assault. He also submitted that, in order for there to be an assault, it had to be proved that what the victim apprehended was immediate and unlawful violence, not just a repetition of the telephone calls. It was not enough to show that merely that the victim was inconvenienced or afraid. He said that the Court of Appeal had fallen into error on this point, because they had proceeded on the basis that it was sufficient that when the victims lifted the telephone they were placed in immediate fear and suffered the consequences which resulted in psychiatric injury. The court had not sufficiently addressed the question whether the victims were apprehensive of immediate and unlawful violence and, if so, whether it was that apprehension which had caused them to sustain the bodily injury.
I agree that a passage in the judgment of the Court of Appeal  Q.B. 114, 122C-G suggests that they had equated the apprehension of immediate and unlawful violence with the actual psychiatric injury which was suffered by the victims. I also agree that, if this was so, it was an incorrect basis from which to proceed. But in the penultimate sentence in this passage Swinton Thomas L.J. said that in the court's judgment repetitive telephone calls of this nature were likely to cause the victim to apprehend immediate and unlawful violence. Furthermore, as the appellant pled guilty to these offences, the question whether that apprehension caused the psychiatric injury did not need to be explored in evidence. The important question therefore is whether the making of a series of silent telephone calls can amount in law to an assault.
There is no clear guidance on this point either in the statute or in the authorities. On the one hand in Meade's and Belt's case (1823) I Lew C.C. 184 Holroyd J. said that no words or singing can amount to an assault. On the other hand in Reg. v. Wilson  1 W.L.R. 493, 494 Lord Goddard C.J. said that the appellant's words, "Get out knives" would itself be an assault. The word "assault" as used in section 47 of the Act of 1861 is not defined anywhere in that Act. The legislation appears to have been framed on the basis that the words which it used were words which everyone would understand without further explanation. In this regard the fact that the statute was enacted in the middle of the last century is of no significance. The public interest, for whose benefit it was enacted, would not be served by construing the words in a narrow or technical way. The words used are ordinary English words, which can be given their ordinary meaning in the usage of the present day. They can take account of changing circumstances both as regards medical knowledge and the means by which one person can cause bodily harm to another.
The fact is that the means by which a person of evil disposition may intentionally or recklessly cause another to apprehend immediate and unlawful violence will vary according to the circumstances. Just as it is not true to say that every blow which is struck is an assault--some blows, which would otherwise amount to battery, may be struck by accident or in jest or may otherwise be entirely justified--so also it is not true to say that mere words or gestures can never constitute an assault. It all depends on the circumstances. If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context.
In this case the means which the appellant used to communicate with his victims was the telephone. While he remained silent, there can be no doubt that he was intentionally communicating with them as directly as if he was present with them in the same room. But whereas for him merely to remain silent with them in the same room, where they could see him and assess his demeanour, would have been unlikely to give rise to any feelings of apprehension on their part, his silence when using the telephone in calls made to them repeatedly was an act of an entirely different character. He was using his silence as a means of conveying a message to his victims. This was that he knew who and where they were, and that his purpose in making contact with them was as malicious as it was deliberate. In my opinion silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Steyn. For the reasons which he gives I would dismiss the appeals.
Whether this requirement, and in particular that of immediacy, is in fact satisfied will depend on the circumstances. This will need in each case, if it is disputed, to be explored in evidence. But that step was not necessary in this case as the appellant was prepared to plead guilty to having committed the offence. I would therefore answer the certified question in the affirmative and dismiss this appeal also.
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