Ormerod and Gunn

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In Defence of Ireland

David Ormerod

Michael Gunn

Copyright © 1997 David Ormerod and Michael Gunn.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The recent decision of the Court of Appeal in R v Ireland [1997] 1 All ER 112 has been the subject of trenchant criticism. In anticipation of the decision of the House of Lords we argue that the decision of the Court of Appeal is defensible because it is possible to apprehend psychiatric harm at a distance sufficient to amount to an assault.

1. Introduction

The recent decision of the Court of Appeal in Ireland [1997] 1 All ER 112 has been the subject of trenchant criticism. Sir John Smith described it as going "beyond all reasonable bounds" (Smith and Hogan 1996, p 413 and Smith 1997a). Professor Edward Griew described it as an "aberrant" decision (Griew 1996). The editors of Archbold regard the decision as one to be treated "with extreme caution" (Archbold 1997, para. 19-173). Michael Allen thought that it was a classic example of "result-pulled reasoning" (Allen 1996/1997 at p 191). But is the decision such a reprehensible one? The objective of this article is to provide a defence for the decision. Some elements of the decision are also defended by Celia Wells (Wells 1997).

Ireland made a substantial number of silent telephone calls to three women. The calls occurred with great frequency, one victim receiving 14 calls within an hour. They sometimes lasted for several minutes. There was psychiatric evidence that each of the women displayed significant psychological symptoms. The symptoms for one victim were "palpitations, difficulty in breathing and cold sweats of an intensity which made it difficult for [the victim] to leave home or to answer the telephone, ... anxiety, inability to sleep, tearfulness, headaches, tingling in [the] fingers, dizziness, ... a constant feeling of being on edge ... and a skin condition brought about by ... nervousness." Ireland was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. He pleaded guilty and was sentenced to three years' imprisonment. On appeal, his conviction was upheld. The Court of Appeal (consisting of Swinton Thomas LJ, Tucker and Douglas Brown JJ) identified as the principal issue for determination: "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" (Ireland [1997] 1 All ER 112 at p 114).

2. The Orthodox View of Assault

The classic definition of the offence of assault, recognised by the Court of Appeal in Ireland, has a formidable judicial pedigree. It was provided by Robert Goff LJ in Collins v Wilcock: an assault is an act which "causes another person to apprehend the infliction of immediate, unlawful, force on his person" ([1984] 3 All ER 374, at p 377). In Ireland, the Court said: "any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence" ([1997] 1 All ER 112 at p 114, and see Smith 1997 at p 435). This definition has not been affected by the fact that assault is now technically a statutory crime under the Criminal Justice Act 1988, s. 39. The mental element required is that the defendant intends the victim to apprehend immediate unlawful force, or is subjectively reckless as to his victim apprehending immediate force on his person" (R v Parmenter [1992] 1 AC 699 at p 740 and see Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 and R v Venna [1976] QB 421). This definition has unequivocal academic support (Allen 1996/1997 at p 189, Archbold 1997 at para 19-173, Smith and Hogan 1996 at p 413, Blackstone's Criminal Practice 1996 at para B2.1, Halsbury 's Laws at para 1210, Law Commission, Law Com No 218 at para 18.1, and Williams 1983 at p173).

3. The Extended Definition

The Court in Ireland decided that psychiatric harm is sufficient for "force" or "violence" in an assault. This makes significant changes to the definition of assault, and possibly also to that of battery.

a."Unlawful violence or force"

In R v Chan-Fook [1994] 1 WLR 689 at p 694 it was decided, by the Court of Appeal, that actual bodily harm included psychiatric injury. The Court of Appeal in Ireland, following that decision, held that psychiatric harm is sufficient harm to constitute the "unlawful violence" required for an assault:

Ireland conceded that his victims had suffered such harm. Of course, it did not necessarily follow that, because 'actual bodily harm' included psychiatric harm that 'unlawful violence' in assault also had to include psychiatric harm. This central ruling, therefore, deserves more detailed consideration. In R v Chan-Fook Hobhouse LJ held that the phrase "actual bodily harm" is capable of including psychiatric injury.

The Lord Chief Justice has recently commented that "were the question free from authority, we should entertain some doubt whether the Victorian draftsman of the 1861 Act [which contains the offence] intended to embrace psychiatric injury within the expression... `actual bodily harm.' If he did, it is not obvious why he used the expression 'bodily' in a statute concerned with offences against the person and which was in no way concerned with damage to or reputation of economic interests (R v Burstow [1997] 1 Cr App R 144 at p 149, and see Smith 1997b). However, the extension in the meaning of 'bodily harm' in Chan-Fook to include psychiatric harm was not an unforeseeable development (See also Wells 1997). As long ago as 1954 Lynskey J. had stated that "there was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said." He then went on to define the term actual bodily harm as: "Any hurt or injury calculated to interfere with the health or comfort of the prosecutor" (R v Miller [1954] QB 282 at p 292; emphasis added). This decision had been followed in numerous cases, and was cited with approval in R v Reigate JJ ex p. Counsell [1984] 148 JP 193 at p. 195, although, with the exception of some perceptive remarks by Glanville Williams (see Wells (1997), the full ramifications of it were not apparent to most until Chan-Fook.

Whatever the views may be about these decisions, Chan-Fook represents the law. If psychiatric injury is sufficient for "actual bodily harm" then the argument for that type of harm being sufficient for a mere assault, as decided in Ireland, is, it is submitted good. However, this aspect of the decision in Ireland has drawn some of the severest criticism, including Professor Griew's statement that the court "misapplied" Chan-Fook "in the most extraordinary way." Griew argued that "Violence (or force) is what causes bodily harm, physical or mental; it is not bodily harm itself" (Griew 1996). This criticism must be recognised as carrying considerable weight since it goes to the heart of the extension engineered by the Court of Appeal (see also Allen 1996/1997 at pp 190-192). There is no logical necessity in moving from a decision that 'bodily harm' includes psychiatric harm to a decision that 'violence' in assault and battery must also include the same. Indeed the latter is a less obvious decision, since the words themselves less easily lend themselves to such an interpretation. Further, there was, as we have indicated, some historic support for the decision in Chan-Fook on the meaning of 'bodily harm'," but there is no equivalent support for the new meaning of 'violence'. However, we believe that the decision in Ireland is defensible. Whilst there is a linguistic difference between 'bodily harm' and 'violence', we are happy to counter assert that the concepts represented by those words are inter-related. They are concepts used in a series of related offences. It is to be expected that developments in one offence trigger related developments in another. The development of the law in Ireland is not only foreseeable, it might even be regarded as inevitable. Whether such a significant change in the law, even if argued to be incremental, is one which it is appropriate for the courts to undertake is considered below.

b. Immediate apprehension

It is possible to apprehend unlawful psychiatric harm to oneself in much more varied circumstances than it is to apprehend physical harm being caused to oneself. Prior to the clarification of the law that psychiatric harm was a form of actual bodily harm and that the 'violence' for an assault could include also psychiatric harm, the only meaning of the requirement of 'violence' for an assault was of physical violence. In order to cause an immediate apprehension of such violence, there must be physical proximity. We recognise that this assertion of the law is under attack. In R v Constanza (1997) The Times, March 31, the Court of Appeal accepted that the concept of immediate violence is elastic, although cases where the harm may only occur in the distant future cannot satisfy it. It is an attack which, for the reasons that follow, we believe to be not necessary, since most of the instances covered by that extension are dealt with by the defensible standpoint in Ireland reliant upon the violence in assault being either physical or psychiatric.

There is nothing necessarily in the decision of the Court of Appeal in Ireland that need doubt the traditional understanding of an assault where it is physical harm which is apprehended, other than the court's reliance upon the questionable decision of the Divisional Court in Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234. The victim saw a 'peeping tom' through a window in her bungalow. She was, understandably, scared. The conviction, reliant upon the existence of an assault as part of the then offence contrary to the Vagrancy Act 1824, was upheld by the Divisional Court. It held that there was sufficient immediacy where the victim was indoors and the defendant was in the garden looking in through the window. This decision, it is submitted, is not correct, in so far as it is regarded as a decision on the concept of immediacy in relation to the apprehension of physical violence. The problem with the decision is that it appears to have been decided as a case dependent upon apprehension of physical violence. If so, closer physical proximity is, it is submitted, required than being scared of what someone might be doing outside a secured window. If the victim had been scared that a brick might be thrown through the window that might make the decision more defensible. The fault in the reasoning in Smith, therefore, was to understand 'apprehension' as simply requiring 'fear' rather than 'anticipation' (see also Allen 1996/197 at p 192). Indeed, the decision of the Divisional Court is replete with references to the need simply to establish that the victim was in fear. It would be expected that the fear should be of something, but the term seems often to be used simply to refer to the state of mind of the victim which might also be described as being scared or fearful. For example, Kerr LJ stated that "the basis of the fear which was instilled in [the victim] was that she did not know what the defendant was going to do next, but that, whatever he might be going to do next, and sufficiently immediately for the purposes of the offence, was something of a violent nature" (Smith at p 238, emphasis added). Similarly, the decision of the Court of Appeal in Constanza makes clear that fear is sufficient to satisfy the finding of an assault.

Unfortunately, throughout the judgment in Ireland, the term 'fear' is also used. For example, it is said that "[f]ear can be instilled as readily over the telephone as it can through the window" (at p 118). Does this reliance harm the correctness of the decision? It is submitted that it does not. Swinton Thomas LJ considers it sufficient that the victim is in fear of psychiatric harm, which must be more than a mere state of fear. Thus, it is not sufficient that the victim is in fear per se; it must be fear of the particular type of harm, whether it be physical or psychiatric. It is submitted that, in the case of Ireland, the term is being used interchangeably with apprehension. It is crucial, however, to recognise that being fearful of something is not necessarily consistent with apprehending it. It is the latter which is required for an assault. Thus, it is better to avoid the use of the word 'fear' for fear that it misleads.

Of course, the same conclusion as that in Smith can still be reached (always assuming that we are correct and the decision does indeed need rescuing) but only if the harm which the victim apprehended was psychiatric harm sufficient to satisfy the definition propounded above. Once the definition of 'unlawful violence' is extended to include 'psychiatric harm', it is sufficient for the victim to apprehend that she will suffer that type of harm. This apprehension can, of course, occur without the physical presence of the defendant. As the court in Ireland stated:

Thus, as it is not only physical harm but also psychiatric harm that may be apprehended, the concept of assault has been broadened extensively. The new concept of assault is, however, not free of difficulty. Not least there is the need to show that psychiatric harm was apprehended even though not suffered. If it is suffered, that would be a battery, provided the other elements are satisfied, see below.

c. Psychiatric assaults

The victims in Ireland all apprehended 'psychiatric' harm being caused to them immediately by the defendant when they picked up the telephone and heard nothing. The new approach has implications for scenarios other than telephonic acts. One of the most famous examples of an action which would, traditionally, not be regarded as involving an assault, is illustrated by the decision in R v Martin (1881) 8 QBD 54, where the defendant locked a theatre exit-door before shouting "fire." The victim who was injured in the crush would not have apprehended immediate unlawful physical force from another. Under the extended meaning, it is possible that a victim in such circumstances might apprehend that they would suffer 'psychiatric harm', for example, in the form of a severe panic attack. This, it is submitted, would constitute an assault. Provided there is a response sufficient to amount to psychiatric harm, there could be criminal liability on facts such as those in Wilkinson v Downton [1897] 2 QB 57, where the defendant, as a practical joke, told the plaintiff that the plaintiff's husband's leg had been broken in an accident and she suffered nervous shock having serious and permanent physical consequences sufficient to amount to psychiatric harm. It would follow that to tell someone that their spouse had been killed in an accident thus provoking a severe reaction greater than mere grief would involve an assault. In Janvier v Sweeney [1919] 2 KB 316 the defendant told the plaintiff that she was wanted for writing to a German spy in an effort to get some papers from her. This would appear potentially to involve an assault. Some of the old 'defenestration' cases which have been assumed not to have involved an assault, might now be regarded as so doing. For example, the terrified wife in R v Lewis [1970] Crim LR 647 who jumped out of a window in a flat when she heard her husband threatening her from another room might be regarded as the victim of an assault, provided she suffered, or apprehended that she would suffer, psychiatric harm. Further, the new interpretation of assault might provide an answer to one of the questions which Smith and Hogan used to ask in their casebook: "Suppose that in Lewis the husband called out that he knew where there was another key to the flat and that he would be back in an hour with it, and the wife had thereupon jumped from the window..." (Smith and Hogan 1975, at p 438). If we assume that, contrary to the original question, the harm which she suffers is only actual, and not grievous, bodily harm, it seems to follow that section 47 is committed, provided she apprehends psychiatric harm, that that assault causes the actual bodily harm suffered, and, of course, that he has the requisite mens rea. Other potential examples might give rise to concern. For example, if the victim receives a strongly worded tax demand from the Inland Revenue and suffers psychiatric harm, is the sender guilty of an assault or worse? Or what if a police officer telephones a person to break bad news to him, will there be an assault where the victim suffers psychiatric harm and the police officer had foreseen that consequence? However, these examples are not consistent with that of the individual who calls with the spiteful intent of causing psychiatric harm by telling lies. The important distinction lies in the lawfulness of the acts. Of course, the fact that there is the actus reus of an assault does not necessarily mean that the defendant is guilty, since he or she must also have the necessary mens rea, which we consider below. Ireland, clearly, has made very radical change to the law.

d. Conclusion

In short, where the case is one of psychiatric assault, it will be necessary for the prosecution to prove, first, that the victim apprehended that she would suffer immediate psychiatric harm (not mere emotion or distress). Secondly, the prosecution must prove that the defendant intended that the victim should apprehend that harm, or was reckless as to whether she would suffer such harm. Even after the decisions in Ireland, Burstow and Chan-Fook it will still be the case that, where the apprehension is as to orthodox 'physical' harm rather than 'psychiatric' harm, there will have to be the same degree of physical proximity sufficient to render the apprehended force 'immediate', subject to the decision in Constanza.

4. An Alternative Interpretation: Battery

Although Swinton Thomas LJ specifically formulated the ruling in Ireland in terms of an assault, it is possible that his lordship used the word to denote a battery rather than a technical assault. This (mis)use of the word is not uncommon, even among the judiciary (see for example Lord Lane CJ in Faulkner v Talbot [1981] 3 All ER 468 at p 471).

The orthodox definition of a battery was provided by Robert Goff LJ in Collins v Wilcock [1984] 3 All ER 374 at p 377: "...a battery is the actual infliction of unlawful force on another person". Lord Lane CJ provided a similar definition in Faulkner v Talbot [1981] 3 All ER 468 at p 471: "any intentional [or reckless] touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, rude, or aggressive." (and see Smith 1997a at p 435). If Ireland, properly interpreted and despite the apparent words used, is a decision about the law of battery rather than assault, the psychological harm caused by the silent telephone call will, it is submitted, satisfy those definitions.

The first step in establishing a battery is that it must be proved that the requisite violence was inflicted, so any perceived lack of immediacy is irrelevant. The directness of the impact, however, must be considered (see Allen 1996/1997, pp 192-193). The crime of battery is related to the tort. The tort appears to require the direct infliction of the requisite violence (see, Jones 1996 at p 402 and Rogers 1994 at p 57), but the concept of directness is a relatively malleable one (see Scott v Shepherd (1773) 2 Wm. Bl. 892). In the criminal law, it appears that "it is not essential that the violence should have been so directly inflicted" as by a punch or a striking with an implement (Smith and Hogan 1996 at p 417 and Blackstone's Criminal Practice 1997 at para B2.5). In any case, the necessary directness must be related to the type of violence. Thus, where the violence is psychiatric harm, directness is easily satisfied in circumstances such as those in Ireland. Whether directness is satisfied could only arise as a debatable issue where the defendant was not in direct communication with the victim. This interpretation of the decision in Ireland, which relies on the accuracy of the extended meaning of 'violence' in the definitions of assault and of battery, renders it possible to commit a battery without touching the victim, at least in so far as it is psychiatric harm which is caused. In fact, the common interpretation of battery, in the sense of physical violence, does not require a touching, because it allows for the use of an instrument, an animal or the creation of an obstruction into which the victim runs (Smith and Hogan 1996, at p 417).

Despite this possible interpretation of the decision in Ireland, the better view appears to be that the court meant what it actually said and so it is a decision on the offence of assault in its technical sense. This submission is supported by the clear reference to assault throughout the judgment and by citation of and reliance upon technical assault cases, principally Smith v Chief Superintendent, Woking Police Station, even though this is a decision which we believe to have been a dubious application of the relevant law.

5. Some Technical Difficulties

a. The extension of assaults to include telephonic assaults and assaults by words

It follows from what we have argued that a distinction must be drawn between actions giving rise to an apprehension of 'ordinary violence' and actions giving rise to an apprehension of 'psychiatric harm'. In the case of what we might call 'orthodox violence' with regard to physical touching, there must be physical proximity between the defendant and the victim.

The question then arises: Why should it not be an assault for a person to make a verbal threat of orthodox violence or menace by telephone even though there is no real prospect of the threat being carried out immediately? Prior to this decision, a question that had never been conclusively answered by the courts was whether there can be an assault by words alone. There were inconclusive obiter dicta from a number of cases. The court in Tuberville v Savage (1669) 1 Mod Rep 3 may be regarded as suggesting that words can be sufficient to ground a charge of assault, as they were certainly enough to nullify acts which would otherwise have constituted an assault. However, R v Meade & Belt (1823) 1 Lew CC 184 at p 185 contained the clear statement that "No words or singing are equivalent to an assault, nor will they authorise an assault in return." However, equally clearly, in R v Wilson [1955] 1 All ER 744 at p 745 Lord Goddard CJ opined that shouting "Get out the knives" would be an assault (see Williams 1957). Ireland lends only implicit support for the view that words may amount to an assault since it is arguable that the decision is not dependent on words or silence, but on the act of telephoning. Swinton Thomas LJ stated, at p 118, that

This appears logical. If D called V persistently, and V was caused to apprehend or fear the onset of psychiatric harm, as described, when she heard the phone ringing, it should not matter whether D spoke. The call has itself caused the harm.

It is arguable that the decision in Ireland goes further, and redefines the meaning of assault generally. Thus, it may be interpreted as deciding that any assault (i.e. not just a psychiatric one) may be committed by words alone. Indeed this is the view of the authors of Blackstone's Criminal Practice 1997:

This view is important where someone is capable of causing apprehension of physical violence but by the use only of words. For example, would it not be right that D has assaulted V in the following situations? D is a large man who has been seen, by V, to be violent in the pub, and who later tells V to get out of the way or else, but accompanies the words with no actions; or D stands still in a street with a gun pointing directly in front when V runs towards him and D says "Your money or your life." Of course, there may often be a practical difficulty of proving beyond all reasonable doubt that the victim apprehended immediate unlawful force (of a non-psychiatric type) where he knows that there is little or no chance that the threat could be carried out immediately. Thus, the telephonic threat of physical violence would not, usually, give rise to an assault, unless the victim believed that the defendant was, for example, on a mobile telephone and in close proximity. This is the correct outcome on the orthodox meaning of assault, since there is not the physical proximity necessary where it is physical violence that is feared. This is not to say that it should not be an offence, but it is not an assault.

Unfortunately, there is a lack of clarity in the Court of Appeal's most recent consideration of this issue. The alternative views of what is implied by Ireland are not clearly resolved. The Court of Appeal in Constanza, The Times, March 31, 1997, clearly decides that, at least in some circumstances, words might amount to an assault. However, whilst agreeing with the view propounded in Smith & Hogan that words are capable of being an assault (Smith and Hogan 1996 at p 414), the Court does not unequivocally decide that words alone are sufficient since it appears to desire that "conduct accompanying words can make the words an assault."

b. Is there a requirement of repetition?

In the case of psychiatric assaults, it is arguable that there must be repetitious conduct. Without it, how does V apprehend that she will suffer the (psychiatric) harm at the time she hears the telephone ringing or the silence on picking up the receiver? In Ireland, Swinton Thomas LJ, refers, at p 118, to the fact that "once the fear and damage are established, then when a telephone call is made by the appellant and the victim knows that the man is telephoning them yet again, they will be apprehensive of suffering the very psychological damage they did suffer" (emphasis added). Further, the passage from the judgment of Taylor J, in Barton v Armstrong [1969] 2 NSWR 451 at p 455 on which the Court of Appeal relies, contains the following statement:

However, it would be better to regard this not as a matter going to the substantive law, but rather a practical matter that it will often, but not always, be very difficult to establish that the victim did apprehend the psychiatric harm where there is only one telephone call. In circumstances where there was no repetition of the calls, the Crown would have the obligation to prove that the victim apprehended the psychiatric harm at the time of the only (or first) call. Even where this would be possible, as for example in a case where the victim of racist telephone calls receives 100 calls from unidentifiable callers before receiving D's first such call, there would still be a problem for the prosecution. It would in all cases, and especially in these cases, be difficult to establish that the caller, D, intended to cause that harm with his first call. This is an important practical obstacle rather than a rule of the substantive law.

c. Mens rea

Where the charge is of an assault contrary to section 39 of the Criminal Justice Act 1988, it must simply be shown that the defendant intended or was reckless as to causing the victim to apprehend psychiatric harm (or physical violence where appropriate). A clearer picture of potential difficulties may be observed by considering the mens rea for the offence contrary to section 47 of the Offences against the Person Act 1861, with which Ireland was charged. Here one of the difficulties about moving from a definition of 'actual bodily harm' to a definition of 'unlawful violence' in assault and battery may be seen. It is well known that, for a section 47 offence, the defendant only need have mens rea as to the assault or battery and not to the actual bodily harm (R v Parmenter [1992] 1 AC 699 and R v Roberts (1971) 56 Cr App R 95). Where the assault consists in the causing of apprehension of psychiatric harm, it turns out that the defendant will have to have foresight of what would be classified as actual bodily harm. This is because the concept of psychiatric harm bears the same definition both in the meaning of assault and in the meaning of actual bodily harm. Thus, the prosecution will have to show that the defendant intended to occasion or was reckless as to the occasioning of an apprehension of psychiatric harm by the victim, and that the victim did actually suffer psychiatric harm (though possibly of a different nature) as a consequence. Indeed, the victim could suffer only physical harm and section 47 would be satisfied, provided the victim also apprehended psychiatric harm. Because of difficulties of proof, it is likely, therefore, that this offence will only be pursued where the victim actually suffers psychiatric harm.

d. Implications for other offences

The Offences against the Person Act 1861 has been described as a rag-bag of offences (R v Parmenter [1992] 1 AC 699 at p 755 and Smith 1991). It is in urgent need of reform. It is clearly time for a thorough going reform along the lines proposed by the Law Commission (see Law Com No 218), having taken into account the recommendations for improvement of the current proposals. As the law stands, there are a number of offences for which the proof of an assault is an essential pre-requisite and so Ireland will have an impact. There are offences where assault is not a requirement, but where Ireland may still have an effect.

The Ireland case itself concerned section 47, which we have just considered. The next most serious offence in the hierarchy created by the 1861 Act is the offence of maliciously inflicting grievous bodily harm contrary to section 20, in which the injury inflicted need not be by way of an assault (R v Wilson [1984] AC 242). The decision in Ireland is unlikely directly to assist in the resolution of the meaning of "inflict" in this offence (see Allen 1996/1997 at pp 187-188). However, courts will find it easier to see that harm has been inflicted where serious psychiatric injury is caused, since that would be consistent with the old requirement of an assault, as well as probably being sufficiently direct. But, the decisions in Ireland and in another recent decision of the Court of Appeal, Burstow [1997] 1 Cr App R 144, do effect a radical change to this offence in another way. Burstow also concerned a stalker who had caused his victim to suffer psychiatric harm, specifically, "severe endogenous depression with marked features of anxiety" (at p 147). The Lord Chief Justice, Lord Bingham of Cornhill, held, at p 149, that psychiatric injury may be sufficient for grievous bodily harm:

In relation to the need for a direct application of force, Lord Bingham stated, at p 149:

The combined effect of Ireland and Burstow is that a section 20 offence can be committed by a (silent) telephone call provided the Crown can prove three things. First, that there was an assault (i.e. apprehension of immediate psychiatric harm) or that the harm was sufficiently directly inflicted to amount to an infliction. Secondly, that the victim did in fact suffer serious psychiatric harm or serious physical harm as a result of that infliction. It may be that there is no distinction between actual and grievous bodily harm where the harm is psychiatric injury (see Allen 1996/1997 at p 187). Thirdly, that the defendant intended or was reckless as to his act causing some harm of that type (i.e. psychiatric injury) (R v Mowatt [1968] QB 421 approved in the House of Lords in R v Parmenter [1992] 1 AC 699 at p 752).

The most serious of the non-fatal offences is that under section 18 of the Offences Against the Person Act 1861. It would be possible, although far from easy in practice, to prove that a defendant caused grievous bodily harm with intent to cause grievous bodily harm by his act of (silent) telephoning. The prosecution would have to establish that the act of telephoning caused the victim to suffer serious psychiatric injury, and that the defendant intended that injury of that type and severity would be caused by his actions. It is not sufficient to prove that he was reckless as to that outcome, nor is it sufficient to prove that he intended some less severe form of the harm. It will only be in the exceptional case in which the Crown can prove these elements.

In the light of the decisions in Burstow and Ireland, a mention must also be made of the common law offence of murder. Since an intention to cause grievous bodily harm is a sufficient mens rea for murder (R v Cunningham [1982] AC 566), there are two scenarios worth discussing here. First, where D causes V to suffer psychiatric harm of such a serious nature that V dies. Provided D has the intention to cause that serious psychiatric injury, he is guilty of murder. Secondly, bearing in mind that D must take his victim as he finds him, it is possible to argue that, where D's actions have caused V to commit suicide, and D intended to cause grievous bodily harm of a psychiatric nature by his acts, he is guilty of murder. This second scenario rests on an application of the causation principle restated recently in R v Williams (1992) 95 Cr App R 1. The victim's actions will not break the chain of causation and thereby absolve D of liability for the death of V, provided that V's actions are within a range of responses which could be regarded as reasonable in the light of all the circumstances. If V's suicide is viewed by a jury as within a range of reasonable responses in the circumstances, D should be convicted. Where the victim refuses life-saving treatment, it is interesting to note, that the Court of Appeal has refused to investigate the reasonableness of that decision (R v Blaue [1975] 1 WLR 1411).

Further, there is a range of offences, with assault as an element, that are affected by the decision in Ireland. The most important are probably the offences of indecent assault contrary to sections 14 and 15 of the Sexual Offences Act 1956. These require proof of an assault in circumstances of indecency. "It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent" (R v Court [1989] AC 28 at p 42). If the calls by D are of such a nature that they are indecent by this standard, and there is an assault (i.e. an apprehension of psychiatric harm), then, subject to the proof of mens rea, D could be convicted of an indecent assault. The prosecution must not only prove that the "accused intentionally assaulted the victim, but that in doing so he intended to commit an indecent assault i.e. an assault which right minded persons would think was indecent" (R v Court at p 45). It would be necessary to prove an intention to assault, and an intention to commit it in circumstances of indecency. Such cases are much less far fetched than those involving murder. There are a number of decided cases in which activity of this type has occurred. For example, in the case of R v Wadland (1994) 15 Cr App R (S) 543, the defendant telephoned a number of women each time claiming to have kidnapped their daughter. The women were each instructed to perform indecent acts upon themselves while the defendant listened to them describing the acts. On the particular facts the defendant was convicted of making threats to kill. Following Ireland it would not prove too difficult to prosecute these cases as indecent assaults, irrespective of whether the defendant made a threat to kill (see also the very similar case of R v Onyon (1994) 15 Cr App R (S) 663)).

6. Retroactivity and Judicial Law-Making

The Court in the present case, at p 118, is "mindful of the admonition ... that judges should not stretch the ambit of specific crimes beyond their proper limits in order to punish behaviour which members of the public would consider ought to be punished" (see also, eg, C v DPP [1996] AC 1, R v Kingston [1995] 2 AC 355, and R v R [1992] 1 AC 599; and see Ashworth 1995 at pp 67-71, Giles 1992 and Smith 1984). In other words, the Court was recognising the need to comply with the legality principle also known by the Latin phrase nullem crimen, nulla poena sine lege. This principle is incorporated in Article 7(1) of the European Convention of Human Rights (see Kokkinakis v Greece (1994) 17 EHRR 397 at para 52, G v France (1995) 21 EHRR 288 at para 24 and SW v United Kingdom (1995) 21 EHRR 363 at para 35; see also Harris, O'Boyle, and Warbrick 1995 at p 274 and Ghandi and James 1997). Article 7(1) provides:

In Kokkinakis v Greece (1994) 17 EHRR 397 at para 52 the European Court of Human Rights made it clear that Article 7 requires "that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable." Further, the Court in SW v United Kingdom (1995) 21 EHRR 363 at para 35 decided that Article 7 "is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage; it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ... and the principle that the criminal law must not be extensively construed to an accused's detriment. From these principles it follows that an offence must be clearly defined in law."

So, if the decision in Ireland is regarded as the judicial creation of new criminal law, it is open to attack under Article 7 of the European Convention of Human Rights. The proposals in the 1997 Queen's Speech for incorporation of the Convention into English law make this consideration even more important than it was before (for a view concluding, on the basis of the same authorities, that the decision would fall foul of Article 7, see Allen 1996/1997, pp 194-195).

Harris, Boyle and Warbrick 1995 conclude, at p 277, that Article 7 "includes the situation in which the existing law is newly interpreted or applied with the result that an act or omission not reasonably foreseeable as being criminal at the time of its occurrence becomes such later." More recently, the European Court has recognised that judicial interpretation of the (criminal) law is inevitable and that there "will always be a need for elucidation of doubtful points and for adaptation to changing circumstances." Indeed, the Court recognised that "the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition." So Article 7 permits the "gradual clarification of the rules of criminal liability ... provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen" (SW v United Kingdom at para 36). Identifying whether the latter requirement is satisfied, it will be of assistance to identify whether the decision under review does "no more than continue a perceptible line of case law development" (SW v United Kingdom at para 42).

The degree of criticism that the decision in Ireland has attracted might suggest that there is a breach of Article 7. There are two ways in which the radical redefinition that it effects could be justified. First, if there was existing authority in support of a redefinition of the crime of assault, extending it beyond cases of an apprehension of immediate physical contact. Secondly, the decision could be justified as an application to a new offence of the existing case law on psychiatric injury.

In addition to the decision of the Divisional Court in Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234, which we have already criticised above, the only case law in support is the Australian case, Barton v Armstrong [1969] 2 NSWR 451. That decision was relied upon heavily in Ireland, but it does not go as far as to redefine assault in such broad terms. Taylor J in that case accepted only that assault could be committed by telephone where the act of calling caused the victim to apprehend orthodox violence. In fact, this civil law, interlocutory decision in Barton should be regarded as of very limited persuasive authority. It has been qualified by a later decision of the New South Wales Court of Criminal Appeal, which was not before the Court in Ireland. In R v Knight (1988, unreported) a number of convictions for assault were quashed where the "evidence ...went no further than merely to show that [serious] threats had been made to the various callers." The court found that there was no evidence "that those threats were threats of immediate violence". Lee J commented that "I do not regard [Barton] as absolutely requiring the view that his Honour has finally held, that fear of immediate violence has other than its ordinary literal import."

In the light of the absence of any clear authority supporting any redefinition of assault, the decision in Ireland can only be justified as an extension of the existing case law on psychiatric injury. We would argue that this development complies with the "essence of the offence". It is clear that many judges have felt that "assault" should apply to cases of fear, and that cases of fear are closely related to causing the apprehension in a victim of psychiatric injury. We have argued that this approach is a dubious statement of the law, but we recognise that it is a very clear view that many judges have adopted. If fear may correctly satisfy the definition of an assault, the argument that the decision in Ireland complies with Article 7 is even stronger than we have argued because cases such as Smith v Chief Superintendent of Woking Police Station become decisions giving a clear strand of case law prior to Ireland. The European Court might well take the view that, as a decided and relied upon decision, it should contribute to that strand of case law, despite the doubts about its accuracy in principle and however strong those doubts may be.

We would argue that the development of the offence in Ireland was "reasonably foreseeable." The decision in Ireland, we argue, is a correct application of the decisions preceding it. The meaning of actual bodily harm identified in Chan-Fook built upon the earlier decision in Miller. That approach was correctly and foreseeably applied to the meaning of violence in the definition of an assault. Once it was realised that "bodily harm" could be psychiatric injury it would take little imagination (unless we are blessing ourselves with the inappropriate advantages of hindsight) to see that the "violence" for an assault could also be satisfied by causing apprehension of psychiatric rather than physical injury.

7. Conclusion

It is submitted, therefore, that there is no breach of Article 7 as currently applied to the development of the common law, and that Ireland is a defensible decision as building upon existing relevant and analogous case law.

Bibliography

Allen, M (1996) 'Look Who's Stalking: Seeking a Solution to the Problem of Stalking' 4 Web Journal of Current Legal Issues, also published in The Web Journal of Current Legal Issues 1996 Yearbook (1997) (London: Blackstone Press) 182.

Archbold Criminal Pleading, Evidence and Practice (1997) (London: Sweet and Maxwell).

Ashworth, A (1995) Principles of Criminal Law, 2nd ed (Oxford: Clarendon Press).

Ghandi, PR and James, JA (1997) 'Marital rape and retrospectivity - the human rights dimension at Strasbourg: CR v UK and SW v UK' 9 Child and Family Law Quarterly 17.

Giles, M (1992) 'Judicial Law-Making in the Criminal Courts: the case of marital rape' Criminal Law Review 407.

Harris, DJ, O'Boyle, M and Warbrick, C (1995) Law of the European Convention on Human Rights (London: Butterworths).

Lawton, F, Birch, D, Gunn, M, Knapton, L and Pigot, M, Halsbury's Laws of England, 4th ed revised, Volume 11(1) (London: Butterworths).

Law Commission No 218 (1993) Legislating the Criminal Code: Offences Against the Person and General Principles (London: HMSO) Cm 2370.

Rogers, WVH (1994) Winfield and Jolowicz on Tort, 14th ed (London: Sweet and Maxwell).

Smith, ATH (1984) 'Judicial Law-making in the Criminal Law' 100 Law Quarterly Review 46.

Smith, JC (1996) Smith and Hogan on Criminal Law, 8th ed (London: Butterworths).

Smith, JC and Hogan, B (1975) Criminal Law: Cases and Materials, 1st ed (London: Butterworths).

Wells, C (1997) 'Stalking: The Criminal Law Response' Criminal Law Review 463.

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