Law report: Purely psychiatric injury was capable of amounting to bodily harm

LAW REPORT v 30 July 1997
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Regina v Burstow; Regina v Ireland; House of Lords (Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead and Lord Hutton) 24 July 1997

Psychiatric illness was capable of amounting to bodily harm within the terms of sections 18, 20 and 47 of the Offences Against the Person Act 1861. An offence under section 20 could be committed in the absence of a direct or indirect application of force to the body, and silent telephone calls were capable of constituting an assault under section 47.

The House of Lords affirmed the decisions of the Court of Appeal (Criminal Division), dismissing the appeals of Burstow against his conviction of unlawfully and maliciously inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861, and of Ireland against his conviction of three counts of assault occasioning actual bodily harm, contrary to section 47 of the Act.

Burstow had harassed a woman during an eight-month period by making silent or abusive telephone calls, distributing offensive cards in the street where she lived, appearing at her home and work, and taking surreptitious photographs. The victim was badly affected, fearing personal violence. She was diagnosed as suffering from a severe depressive illness. Following a ruling by the judge that an offence under section 20 could be committed where no physical violence had been applied directly or indirectly to the victim's body, he pleaded guilty.

Ireland had, during a three-month period, harassed three women by making repeated telephone calls, mostly at night, during which he remained silent or resorted to heavy breathing. The case against him was that he had caused his victims to suffer psychiatric illness.

Peter Feinberg QC and Andrew Turton (Hart Brown) for Burstow; Bruce Houlder QC (Crown Prosecution Service) for the Crown; Malcolm Bishop QC and Phillip Richards (Evans & Ellis) for Ireland; Christopher Llewellyn-Jones and Roger Griffiths (Crown Prosecution Service) for the Crown.

Lord Steyn said that the question which was common to both appeals was whether psychiatric illness was capable of amounting to bodily harm within the terms of sections 18, 20 and 47 of the Offences Against the Person Act 1861. In R v Chan-Fook [1994] 1 WLR 689 the Court of Appeal had concluded that "actual bodily harm" was capable of including psychiatric injury. Counsel for both appellants had submitted that Chan-Fook had been wrongly decided.

The proposition was that the Victorian legislator would not have had in mind psychiatric illness, but the subjective intention of the draftsman was immaterial. The only relevant enquiry was as to the sense of the words in the context in which they were used. The statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.

For those reasons the challenge to the correctness of Chan-Fook was rejected. The ruling in that case had been based on principled and cogent reasoning and marked a sound and essential clarification of the law.

In Burstow's appeal, it had been argued that it was inherent in the word "inflict" that there must be a direct or indirect application of force to the body.

The problem was one of construction. Although the words "cause" and "inflict" were not exactly synonymous, in the context of the Act of 1861 one could nowadays quite naturally speak of inflicting psychiatric injury. Once the decision in Chan-Fook was accepted, the realistic possibility was opened up of prosecuting under section 20 in cases of silent telephone calls and stalking.

It was necessary next to consider whether the making of silent telephone calls causing psychiatric injury was capable of constituting an assault under section 47 as had been held by the Court of Appeal in Ireland's case. The answer to that critical question seemed to be "Yes, depending on the facts". Nevertheless, the concept of an assault involving immediate personal violence as an ingredient of the section 47 offence was a considerable complicating factor in bringing prosecutions under it in respect of silent telephone callers and stalkers.

Kate O'Hanlon, Barrister

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