Editorial Committee of the Cambridge Law Journal

Assault by TelephoneAuthor(s): Jonathan HerringSource: The Cambridge Law Journal, Vol. 56, No. 1 (Mar., 1997), pp. 11-13Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508283 .

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C.L.J. Case and Comment 11

amending the Act, these courts were likewise to become a magnet for

those seeking redress in well-documented cases of torture, would this

be so undesirable?

Susan Marks

C.L.J. Case and Comment 11

amending the Act, these courts were likewise to become a magnet for

those seeking redress in well-documented cases of torture, would this

be so undesirable?

Susan Marks

ASSAULT BY TELEPHONE

In K v. Ireland [1996] 3 W.L.R. 650 the defendant telephoned three

women a large number of times. When the telephone was answered he

remained silent. As a result the women developed various illnesses,

including stress, inability to sleep and palpitations. The defendant was

convicted on three counts of "assault occasioning actual bodily harm",

contrary to Offences Against the Person Act 1961, s. 47. Following the interpretation of section 47 by the House of Lords in D.P.P. v.

Parmenter [1992] 1 A.C 699 it was necessary for the prosecution to

show that the defendant had committed a common assault or a battery and that this had caused the victim to suffer actual bodily harm; the

only mens rea requirement was that necessary for the assault or

battery. It had been established in R v. Chan-Fook [1994] 1 W.L.R. 689 that psychological harm could constitute actual bodily harm so

long as it took the form of a psychiatric illness, recognised by the medical profession.

The Court of Appeal upheld the convictions. It accepted the orthodox definition of an assault as "any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence" (p. 653A) and asserted that "the conduct

complained of falls squarely within the recognised definition of the

offence" (p. 657A). This may at first sight be surprising as the facts of the case seem to lack some of the essential requirements of an assault.

First, the victims did not appear to suffer a fear of violence at all but rather a more general fear. Secondly, there did not seem to be a fear of immediate violence. Thirdly, it was far from clear from the previous case law whether words alone could constitute an assault, let alone the actual silence of a caller at the other end of a telephone.

The court's judgment was given by Swinton Thomas L.J., and there seem to be two possible readings of his approach. The first is that the creation ofa fear of suffering psychiatric injury is sufficient to establish an assault; there need not be a fear of actual violence. Swinton Thomas L.J. referred to Smith v, Chief Superintendent, Woking Police Station (1983) 76 Cr.App.R. 234, in which a man who stared at a woman through her bedroom window was said to have committed an assault. He acknowledged that the present case could be distinguished from Smith on the grounds that in Smith the victim

ASSAULT BY TELEPHONE

In K v. Ireland [1996] 3 W.L.R. 650 the defendant telephoned three

women a large number of times. When the telephone was answered he

remained silent. As a result the women developed various illnesses,

including stress, inability to sleep and palpitations. The defendant was

convicted on three counts of "assault occasioning actual bodily harm",

contrary to Offences Against the Person Act 1961, s. 47. Following the interpretation of section 47 by the House of Lords in D.P.P. v.

Parmenter [1992] 1 A.C 699 it was necessary for the prosecution to

show that the defendant had committed a common assault or a battery and that this had caused the victim to suffer actual bodily harm; the

only mens rea requirement was that necessary for the assault or

battery. It had been established in R v. Chan-Fook [1994] 1 W.L.R. 689 that psychological harm could constitute actual bodily harm so

long as it took the form of a psychiatric illness, recognised by the medical profession.

The Court of Appeal upheld the convictions. It accepted the orthodox definition of an assault as "any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence" (p. 653A) and asserted that "the conduct

complained of falls squarely within the recognised definition of the

offence" (p. 657A). This may at first sight be surprising as the facts of the case seem to lack some of the essential requirements of an assault.

First, the victims did not appear to suffer a fear of violence at all but rather a more general fear. Secondly, there did not seem to be a fear of immediate violence. Thirdly, it was far from clear from the previous case law whether words alone could constitute an assault, let alone the actual silence of a caller at the other end of a telephone.

The court's judgment was given by Swinton Thomas L.J., and there seem to be two possible readings of his approach. The first is that the creation ofa fear of suffering psychiatric injury is sufficient to establish an assault; there need not be a fear of actual violence. Swinton Thomas L.J. referred to Smith v, Chief Superintendent, Woking Police Station (1983) 76 Cr.App.R. 234, in which a man who stared at a woman through her bedroom window was said to have committed an assault. He acknowledged that the present case could be distinguished from Smith on the grounds that in Smith the victim

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12 The Cambridge Law Journal [1997]

feared immediate violence, although she could not state precisely what

it was that she feared the defendant was about to do. However, Swinton Thomas L.J. suggested that after Chan-Fook this distinction

could carry no weight. He argued that when answering the telephone the victims were "apprehensive of suffering the very psychological

damage which they did suffer" (p. 656F). In other words there was a

fear of suffering psychological harm, and following Chan-Fook this

was equivalent to fearing violence.

There are three potential problems with Swinton Thomas L.J.'s

approach. The first is that it involves an odd reading of Chan-Fook, which dealt solely with the meaning of "actual bodily harm" in section

47. There is a danger of conflating the requirements of an assault and

the meaning to be given to the phrase "actual bodily harm". There

seems no reason why the interpretation of that phrase should affect

the meaning of an assault. Although the two could have elements in

common, Swinton Thomas L.J. fails to provide arguments either way as to whether they should or should not be linked. The second problem is that, even assuming that fear of psychological rather than physical

injuries could constitute an assault, it is difficult to agree that it was

the victims' fear that they might suffer psychological injuries which

could be said to have "occasioned" those injuries. It is true that one

could say that the act that gives rise to the fear of psychological

injuries {i.e. the telephone call) is the same act that causes the

psychological injuries, but this is to misunderstand the true nature of

an assault which is not centred on the making of a threat but on the

creation of apprehension of injury. It cannot really be argued in this

case that the creation of the fear caused the psychological injuries, unlike a case where the defendant's threats caused the victim to become

so afraid that she jumped out of a moving car in an attempt to escape, where the fear could be said to cause the injuries (see R. v. Roberts

(1971) 56 Cr.App.R. 95). The final problem is that it is hard to believe

on the facts ofthe case that the victims' fears on receiving the telephone calls were specifically that they might suffer the palpitations etc, rather than simply a general sense of terror.

A second possible reading of the judgment is that the Court of

Appeal thought that in some cases in a charge under section 47 there

might be no need specifically to prove an assault and that an assault

could be inferred from the existence of psychological harm. Swinton Thomas L.J. could be taken to have suggested this when stating (at

p. 653F-G) that

if the Crown can prove that the victims have sustained actual

bodily harm, in this case psychological harm, and that the accused must have intended the victims to sustain such harm, or have been reckless as to whether they did sustain such harm, and that

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C.L.J. Case and Comment 13

harm resulted from an act or acts ofthe appellant, namely making telephone calls followed by silence, it is open to the jury to find that he has committed an assault.

In effect here the Court of Appeal seems to have interpreted section

47 to read that it is an offence simply to cause actual bodily harm.

This view is hard to reconcile with the widely accepted assumption by the House of Lords in both R v. Wilson [1984] 1 A.C. 242 and

Parmenter that it would be possible to inflict grievous bodily harm

contrary to Offences Against the Person Act 1861, s. 20, without

committing a section 47 offence. Further, it is hard to reconcile with

the decision in Parmenter that the mens rea required for section 47 is

simply that necessary for an assault or battery and that there is no

need to prove intention or recklessness as to "actual bodily harm".

Swinton Thomas L.J. also rejected the argument that there was no

fear of immediate physical violence here because in his view "by using the telephone the appellant put himself in immediate contact with the

victim" (p. 653H). This too is not wholly convincing. It might perhaps

explain why there was an immediate general fear, but does not show

that the fear was of immediate violence.

What is clear from the judgment is that a mere telephone call

without speech can now constitute a sufficient threat for an assault, and it is certainly the unfortunate truth that such calls constitute a

contemporary social problem. In fact the defendant had previously been successfully prosecuted for offences under the Telecommuni-

cations Act 1984, but presumably the prosecution used section 47 in

an attempt to obtain a harsher sentence. Indeed he was sentenced to

three years' imprisonment for the section 47 offences. But if there is a

risk of the new wider meaning of assault leading to injustices in other

factual scenarios or unbalancing the conceptual framework of the

criminal law of offences against the person, it would seem more

desirable to increase the penalties under the Telecommunications Act

1984 than to stretch the meaning of assault as the court appears to

have done in this case. Having said this, the case is in line with a series

of developments in the law seeking to give greater protection to people harassed by others: Burstow [1996] Crim.L.R. 331, recognising that

"stalking" which causes serious psychological harm can constitute an

offence under Offences Against the Person Act 1861, s. 20; Johnson

[1996] Crim.L.R. 828, holding that a series of obscene phone calls can

constitute the crime of public nuisance; Burris v. Azadani [1995] 1 W.L.R. 1372 recognising the tort of harassment; and Family Law Act 1996, Part IV, extending the availability of statutory injunctions in domestic violence settings.

JONATHAN HERRING

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