While section 20 of the Offences Against the Person Act 1861 provides that certain physical acts of violence are grounds for a conviction of grievous bodily harm, the psychological fear of impending violence through the use of words or silence, can prove difficult to sustain as a claim for assault occasioning actual bodily harm.
However, on this occasion the House of Lords unequivocally clarified that both words and actions are equally damaging to their intended victims.
In this matter, the appellant had been tried and convicted of assault occasioning actual bodily harm under section 47 of the 1861 Act, which reads that:
“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable…to be kept in Penal Servitude for the Term of Three Years…”Offences Against the Person Act 1861
Having repeatedly called three women during the night on a number of occasions, and each time remaining silent or breathing heavily, his actions had the cumulative effect of causing their prolonged psychiatric distress by way of palpitations, cold sweats, tearfulness, headaches, anxiety, insomnia, agoraphobia, dizziness, nervousness and breathing difficulties.
And so, in the first instance the Newport Crown Court had found him guilty and passed sentence accordingly, upon which the appellant challenged the judgment in the Court of Appeal, who upheld the decision while holding that:
“[T]he making of a telephone call followed by silence, or a series of telephone calls, is capable of amounting to a relevant act for the purposes of section 47 of the Offences against the Person Act 1861.”
Granted leave to appeal, the appellant argued his case again before the House of Lords, who reexamined the facts and statutory position in order to reevaluate the scope of section 47, both in terms of actual bodily harm and that of common assault.
Referring first to R v Chan-Fook, the House noted that the Court of Appeals had previously held that:
“[T]he phrase “actual bodily harm” is capable of including psychiatric injury. But 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.”R v Chan-Fook
Yet, it was also evident from their previous judgment that no specific mention had been made of assault, and so turning to Fagan v Commissioner of Metropolitan Police, the House also noted how the Court of the Queen’s Bench had held that:
“An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.”Fagan v Commissioner of Metropolitain Police
Thus, the House held that wile the women were physically beyond the reach of the appellant, there was simply no tenable grounds to assume that the appellant never intended to inflict violence upon them, particularly when using the words “I will be at your door in a minute or two”.
Therefore, the appeal was uniformly dismissed; while in closing , the House further reminded the court that section 47 was still subject to the context in which it was applied, and that when determining the inclusion of assault, the court must remain vigilant to its arbitrary over inclusion to convictions, while more importantly holding that:
“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.”