R v Ireland (1997)

English Criminal Law

R v Ireland
‘Western Electric Rotary Telephone’ by Christopher Stott

While s.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 s.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…”

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 s.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.”

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.”

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. In closing , the House further reminded the court that s.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.”

Trespass

Insight | August 2017

Trespass
‘No Trespassing’ by Arthur Wardle

For clarification, there are two types of trespass, namely trespass to the person and trespass to land. As with anything requiring individual expansion, we will begin by looking at trespass to the person.

Trespass to the person
Trespass to the person includes three torts, ranging from (i) battery (ii) assault and (iii) false imprisonment, as first truly defined by Goff LJ in Collins v Warlock when he said:

“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.”

(i) Battery
While claiming accidental causes, the defendant in Williams v Humphrey was found liable for battery after pushing the victim into a swimming pool, whereupon the claimant broke his ankle. Given that the intention to push the victim was present, no argument to the contrary could reasonably stand and so damages were awarded.

(ii) Assault
In R v Ireland, a number of women subjected to continuous psychological damage through repeated abusive phone calls, were given the right to claim for assault, even though they never met the defendant in person. When reaching summary judgment, it was remarked by Hope LJ that:

“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.”

(iii) False Imprisonment
While reminiscent of physical imposition, this tortious facet involves the restriction of liberty and movement of an individual. As many might expect, there are cases where over extension of a prison sentence will suffice, however mere isolation or deprivation of escape will also apply. It is important to note that while the victim may only fear these actions yet not necessarily fall subject to their physical consequences, psychological harm, where proven, will suffice under a claim. Unlike the tort of negligence, trespass to the person relies upon intention, actual harm and obvious effect, and so victims are compensated not for unintentional damage, but that caused with deliberation.

Trespass to land
Similarly, trespass to land addresses deliberate actions by those subject to it, while primary focus is placed upon the protection and preservation of land or property. Harm is treated as one stemming from interference with a right to privacy and occupation, and so while possession of the land is imperative to a successful claim, there are, as with trespass to the person, four distinct categories of interference, namely (i) crossing a boundary, (i) remaining on land, (iii) exceeding permissions associated with land and (iv) placing objects upon land without express consent of the owner.

(i) Crossing boundaries
Undoubtedly the more common complaint is one of boundary violation, and while often focussed upon overgrown foliage or other such matters, there are also incidents where property intrudes into the airspace of land, such as in Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd where a contractor’s crane overswung into a neighbouring property, thus prompting a supported claim for trespass through ‘airspace’.

(ii) Remaining on land
In Jones v Persons Unknown, the freeholders of unregistered land were forced to serve eviction notices after a group of ‘fracking’ protestors set up residence and refused to leave. While claiming to be protecting the land on which they had become entrenched, the defendants were ultimately evicted under the award of a possession order on grounds of trespass. When outlying the justification for the order, the judge remarked:

“[T]here is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back…he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings.”

(iii) Exceeding permissions (trespass ab initio)
When a party enters owned land under agreement, but then proceeds to potentially outstay that welcome through unlawful or abusive actions, the owner is entitled to claim trespass from the point at which the visitor caused offence. In a case called The Six Carpenters, a number of carpenters entered an inn before ordering and paying for wine and bread; however things took a turn for the worse when after ordering more wine they refused to pay for it; thus instigating a unsuccessful claim for trespass damages by the landlord when the court held:

“[F]or not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio…”

(iv) Placing objects
In Arthur v Anker, the deliberate placement of an oil tanker and flower pots along a boundary wall caused tensions between neighbours, until a claim for trespass led to an injunction to remove the objects, despite several months between their placement and the litigation. In surmising the judgment, Aldous J emphasised that:

“[T]here is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr. Stones to believe that he could maintain the tank on the wall situated as it is…He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.”