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Family Law Reports/1997/Volume 1/R v IRELAND - [1997] 1 FLR 687

[1997] 1 FLR 687

R v IRELAND

Court of Appeal (Criminal Division)

Swinton Thomas LJ, Tucker and Douglas Brown JJ

14 May 1996

Criminal law - Telephone calls - Repeated calls to victims followed by silence - Victims suffering psychologi-
cal damage as a result of calls - Offences Against the Person Act 1861 - Whether assault occasioning actual
bodily harm - Whether telephone calls followed by silence an assault

Between June and September 1994 the appellant made a large number of unwanted telephone calls to three
women, often repeating the calls frequently over a short period. When the calls were answered, the appellant
was silent. Each of the women complained of significant psychological symptoms; one complained of palpita-
tions, difficulty in breathing and cold sweats, another complained of anxiety, inability to sleep, tearfulness and
headaches; the third complained of stress, inability to sleep and a skin condition brought about by her nerv-
ousness. The appellant was charged with assault occasioning actual bodily harm under the Offences Against
the Person Act 1861, s 47. He pleaded guilty, and was sentenced to 3 years' imprisonment. The appellant
appealed against conviction, on the basis that a telephone call or series of calls followed by silence could not
constitute an assault for the purposes of s 47.

Held - dismissing the appeal -

(1) An assault is an act whereby a person intentionally or recklessly causes another to apprehend
immediate and unlawful violence.

(2) The question of whether a particular act or particular acts amounted to an assault was a ques-
tion of fact which would depend on all the circumstances of the case (see p 693B below) (Barton v Arm-
strong followed).

(3) The making of a telephone call followed by silence, or a series of such calls, was an act capable
of constituting an assault under s 47. The act consisted of making the call, and it was irrelevant whether
words or silence ensued.

(4) In the present case, there was no doubt that the calls made the victims apprehensive. There
was no doubt that the victims were caused psychological damage. Once the fear and the damage were es-
tablished, when the appellant made a telephone call and the victim lifted the telephone and knew that the
appellant had telephoned again, they would be apprehensive of suffering the very psychological damage
from which they did suffer.
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(5) The harm from which the victims suffered, whilst not involving physical violence to the body, was
none the less an act of violence, albeit inflicted indirectly. It was not necessary for there to be an immediate
physical proximity between defendant and victim (see p 693C-F below).

Statutory provisions considered

Vagrancy Act 1824, s 4

Offences Against the Person Act 1861, s 47

Cases referred to in judgment

Barton v Armstrong [1969] 2 NSWR 451, NSW SC

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, [1968] 3 WLR 1120, [1968] 3 All ER 442,
DC

R v Chan-Fook [1994] 1 WLR 689, [1994] 2 All ER 552, CA

R v Johnson [1996] Crim LR 828, CA

[1997] 1 FLR 687 at 688

R v Savage, R v Parmenter [1992] 1 AC 699, [1991] 2 WLR 408, [1991] 4 All ER 698, HL

Smith v Chief Superintendent, Wok ing Police Station (1983) 76 Cr App R 234, DC

Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684

Cases cited but not referred to in judgment

Ansell v Thomas [1974] Crim LR 31, CA

Director of Public Prosecutions v Merriman [1973] AC 584, [1972] 3 WLR 545, [1972] 3 All ER 42, HL

Dullaghan v Hillen [1957] Ir Jur Rep 10, Ir Circuit Ct

Hodgetts and Another v Chiltern District Council [1983] 2 AC 120, [1983] 2 WLR 577, [1983] 1 All ER
1057, HL

Jemmison v Priddle [1972] 1 QB 489, [1972] 2 WLR 293, [1972] 1 All ER 539, DC

Logdon v Director of Public Prosecutions [1976] Crim LR 121, DC

R v Byrne [1968] 3 CCC 179, BC CA

R v Clarence (1888) 22 QBD 23

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R v Gelder (unreported) 15 December 1994, CA

R v Hanson (1849) 2 Car & Kir 912, 175 ER 383

R v Kimber [1983] 1 WLR 1118, [1983] 3 All ER 316, CA

R v Knight (1988) 35 A Crim R 314, NSW CCA

R v Mansfield Justices ex parte Shark ey; R v Same ex parte Hunt; R v Same ex parte Barron; R v Same
ex parte Fretwell; R v Same ex parte Robinson; R v Same ex parte Swatten; R v Same ex parte Grove;
R v Same ex parte Fellows; R v Same ex parte Anderson [1985] QB 613, [1984] 3 WLR 1328, [1985] 1
All ER 193, DC

R v Meade and Belt (1823) 1 Lew CC 184, 168 ER 1006

R v Salisbury [1976] VR 452, Vic Full Ct

R v Venna [1976] QB 421, [1975] 3 WLR 737, [1975] 3 All ER 788, CA

R v Walk den (1845) 1 Cox CC 282

R v Wilson (Clarence), R v Jenk ins (Edward John) [1984] AC 242, [1983] 3 WLR 686, [1983] 3 All ER
448, HL

Read v Cok er (1853) 13 CB 850, 138 ER 1437

Stephens v Myers (1830) 4 C & P 349, 172 ER 735

Philip Richards for the appellant; Christopher Llewellyn-Jones QC and Roger Griffiths for the Crown

Cur adv vult

SWINTON THOMAS LJ:

On 6 February 1995, in the Crown Court at Newport (Gwent) before his Honour Judge Prosser QC, this ap-
pellant pleaded guilty to three counts of assault occasioning actual bodily harm. On 10 March 1995 he was
sentenced to serve 3 years' imprisonment on each count concurrently. He appeals against his conviction and
his sentence with leave.

The appellant pleaded guilty to counts 2, 3 and 5 in the indictment and not guilty to c ounts 1 and 4.
Those pleas were accepted.

Count 2 charged the appellant with assault occasioning actual bodily harm, contrary to s 47 of the Of-
fences Against the Person Act 1861. The particulars of the offence charged him that on a day between 1
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June 1994 and 11 September 1994 he assaulted Patricia Ann Hannam, thereby occasioning her actual bod-
ily harm. Count 3 was in similar terms, charging him that on a day between 1 June 1994 and 11 September
1994 he assaulted Sarah Jane Williams, thereby occasioning her actual bodily harm. Count 5 charged him
that on a day between 1 June 1994 and 11 September 1994 he assaulted Susan Young, thereby occasion-
ing her actual bodily harm.
[1997] 1 FLR 687 at 689

The charges arose as a result of the appellant making a large number of unwanted telephone calls to
the three women. The telephone calls occurred very frequently between the dates set out in the counts in the
indictment. When the women answered the telephone there was silence. The calls lasted sometimes fo r a
minute or so, and sometimes for several minutes. On occasions there were repeated calls over a relatively
short period. For example, one complainant said that she received no less than 14 telephone calls within an
hour on 9 September 1994. The other complainants had similar experiences. Each of the complainants was
examined by a psychiatrist, who said in his witness statement that the result of the repeated telephone calls
was that each of them suffered significant psychological symptoms. For example, one of the complainants
suffered from palpitations, difficultly in breathing and cold sweats of an intensity which made it difficult for her
to leave her home or to answer the telephone. Another of the complainants suffered anxiety, inability to
sleep, tearfulness, headaches, tingling in her fingers, dizziness and a constant feeling of being on edge. The
third complainant suffered from stress, inability to sleep, and a skin condition brought about by her nervous-
ness.

The issue that arises on this appeal is whether a telephone call, followed by silence, can constitute an
assault for the purposes of s 47 of the Offences Against the Person Act 1861. Leave to appeal was granted
in order that the court could consider whether the facts spoken to in the witnes s statements disclosed an of-
fence. The Crown conceded that if they did not, then the appellant should be permitted to change his plea
and the convictions should be quashed.

It is submitted by Mr Philip Richards, on behalf of the appellant, that the making of a telephone call, fol-
lowed by silence, or a series of telephone calls, followed by silence, does not constitute an assault for the
purposes of s 47 of the Offences Against the Person Act 1861.

An assault is any act by which a person intentionally or recklessly causes another to apprehend imme-
diate and unlawful violence. This definition, which is to be found in the 1996 edition of Archbold (Sweet &
Maxwell) at para 19/166, has received judicial approval in a number of cases, most recently in R v Savage, R
v Parmenter [1992] 1 AC 699, 740. Mr Richards submits that the facts relied upon by the prosecution do not
disclose an apprehension on the part of the victims of immediate unlawful violence. He submits that violence
cannot include psychological harm. He goes on to submit that before a defendant can be convicted of an
offence under s 47, the Crown must prove:

(1) that the accused has completed the relevant act;

(2) that that act must have caused the victim to apprehend immediate and unlawful vio-
lence;

(3) the accused must have either intended the victim to apprehend violence or have fore-
seen the risk that the victim might apprehend violence;

(4) that the act has caused actual bodily harm.

Mr Richards then submits that in this case there was no relevant act, that before there can be an ap-
prehension of immediate and unlawful violence there must be physical proximity between the defendant an d
the victim,
[1997] 1 FLR 687 at 690
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which is absent when the act consists of a telephone call, and that the facts complained of could not result in
an apprehension of immediate violence.

It was held in R v Chan-Fook [1994] 1 WLR 689, that 'actual bodily harm' may include injury to any part
of the body, including internal organs, the nervous system and the brain. It is capable of including psychiatric
injury, but not mere emotion such as fear, distress or panic. In the present case there was abundant evi-
dence that the victims have suffered psychiatric damage, and this was conceded before Judge Prosser and
by the appellant in this appeal. In R v Chan-Fook Hobhouse LJ said at 694E:

'Similarly an injury can be caused to someone by injuring their health; an assault may have the consequence of infect-
ing the victim w ith a disease or causing the victim to become ill. The injury may be internal and may not be accompa-
nied by an external injury.'

Mr Richards submits that because a person has sustained physical injury as a consequence of the act
of the appellant, it does not follow that the act caused the victim to apprehend immediate and unlawful vio-
lence. In our judgment, if the Crown can prove that the victims have sustained actual bodily harm, in t his
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 harm resulted from an act or acts of the
appellant, namely telephone calls followed by silence, it is open to the jury to find that he has committed an
assault. As to immediacy, by using the telephone the appellant put himself in immediate contact with the vic-
tims, and when the victims lifted the telephone they were placed in immediat e fear and suffered the conse-
quences to which we have referred.

Our attention was drawn to a number of cases concerning the definition of assault, some of them of
some antiquity. It is of importance that an assault does not necessarily include a batt ery, and the distinction
is important in this case. It has been recognised for many centuries that putting a person in fear may amount
to an assault. The early cases predate the invention of the telephone. We must apply the law to conditions as
they are in the twentieth century. In Tuberville v Savage (1669) 1 Mod Rep 3, T laid his hand upon his sword
saying, 'If it were not Assize time I would not take such language'. It was held that the act could have
amounted to an assault but for 'the declaration that he would not assault him, the judges being in town'.
Pointing an imitation or toy gun at the victim, dangerous driving and kidnapping have all been held to be ca-
pable of amounting to an assault.

In Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, James J, in a judgment in which the
Lord Chief Justice agreed, drew the distinction between an assault and a battery and said, at 445C:
'For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The
"actus reus" is the action causing the effect on the victim's mind ... The "mens rea" is the intention to cause that effect.'

Smith v Chief Superintendent, Wok ing Police Station (1983) 76 Cr App R 234 is an important case for
the purpose of this appeal. The defendant was charged under s 4 of the Vagrancy Act 1824 which provides:
[1997] 1 FLR 687 at 691
'... every person being found ... in any inclosed ... garden ... for any unlaw ful purpose ... shall be deemed a rogue and
vagabond ...'

The defendant entered the grounds of a private house and looked through the windows of the house
occupied by the victim. She was terrified. The justices were of the opinion that the defendant had deliberately
frightened the victim, and that that constituted an assault, and accordingly they found him guilty of the of-
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fence charged, ie being in an enclosed garden for an unlawful purpose, namely to assault the victim thereby
causing her fear and shock. It was held that the defendant intended to frighten the victim and that she was
frightened. Mr Richards endeavoured to distinguish that case from the present case by saying that it could
not be proved that the victims in this case had any fear of some act of immediate violence.

In Smith it was contended by the defendant that an assault was the doing of an act which intentionally
or recklessly caused another to apprehend immediate and unlawful violence; that the evidence was that the
victim had not been caused to have such apprehension; and that there was no evidence upon which the jus-
tices could say that the defendant had intended she should so apprehend.

In his judgment Kerr LJ said, at 237:

'The question of law is: "w hether there was evidence upon which the magistrates' court could conclude that the pur-
pose of the defendant w as to assault [Miss M] and consequently 'an unlaw ful purpose' within the meaning of the Va-
grancy Act 1824."

...

In the present case, on the findings w hich I have summarised, there w as quite clearly an intention to c ause fear,
an intention to frighten, and that intention produced the intended effect as the result of what the defendant did, in that it
did frighten and indeed terrify Miss [M] to the extent that she screamed. It is not a case w here she was merely startled
or surprised or ashamed to be seen in her nightclothes; she w as terrified as the result of w hat the defendant deliber-
ately did, know ing and either intending or being reckless as to w hether it w ould cause that fear in her.

Ultimately, as it seems to me, the only point taken by Mr Denny w hich requires some consideration is w hether
there w as a sufficient apprehension, within the definition w hich I have read, of immediate and unlaw ful violence. He
takes the point that there is no finding here that w hat Miss [M] w as terrified of was some violence, and indeed some vi-
olence w hich can be described as immediate. How ever, as it seems to me, Mr Greenbourne is right w hen he submits,
really in the form of a question: "What else, other than some form of immediate violence, could Miss [M] have been ter-
rified about?"

...

In the present case the defendant intended to frighten Miss [M] and Miss [M] w as frightened. As it seems to me,
there is no need for a finding that w hat she was frightened of, which she probably could not analyse at that moment,
w as some innominate terror of some potential violence. It w as clearly a situation w here the basis of the fear w hich was
instilled in her w as that she did not know w hat the defendant was going to do next, but that, w hatever he might be go-
ing to do next, and sufficiently

[1997] 1 FLR 687 at 692

immediately for the purposes of the offence, was something of a violent nature.'

Clearly the facts of Smith's case bear some similarity to the present case. The appellant did not touch
the victim. He stood outside her window causing her to be terrified. She was frightened of some potential
violence. The distinctions which can be drawn are the physical proximity of the appellant to the victim and the
fact that her fear must have been a fear of some direct injury to her body as opposed to psychological injury.
Since R v Chan-Fook the last distinction is irrelevant.

Barton v Armstrong [1969] 2 NSWR 451 was a civil action in the Supreme Court of New South Wales.
The action was based in part on an allegation of assault. Assaults were alleged to have been committed by
telephone. At 455 Taylor J said:
'Mr Staff's first and second propositions can, I think, be best dealt w ith together. They are the ones upon w hich he most
strongly relied. There are, undoubtedly, many authorities w hich show that mere w ords do not constitute an assault,
how ever insulting or even menacing they may be, and that the intention to do violence must be expressed in acts ...
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Whatever the reason may be, it is clear from the many authorities cited on this subject that mere w ords them-
selves are not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or
apprehension of violence. For these reasons Mr Staff contended that all threats over the telephone could not in law be
capable of constituting an assault.

I am not persuaded that threats uttered over the telephone are to be properly categorized as mere w ords. I think it
is a matter of the circumstances. To telephone a person in the early hours of the morning, not once but on many occa-
sions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a
jury could say w as well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from
mere w ords. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that
he is being follow ed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then
w hy is this not something to put him in fear or apprehension of immediate violence? In the age in w hich we live threats
may be made and communicated by persons remote from the person threatened. Physical violence and death can be
produced by acts done at a distance by people w ho are out of sight and by agents hired for that purpose. I do not think
that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the pro-
tection afforded by civil and criminal law as to assault. How immediate does the fear of physical violence have to be? In
my opinion the answ er is it depends on the circumstances. Some threats are not capable of arousing apprehension of
violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Oth-
ers, I believe, can create the apprehension even if it is made clear that violence may occur in the future, at times un-
specified and uncertain. Being able to immediately carry out the threat is but one w ay of creating the fear of apprehen-
sion,

[1997] 1 FLR 687 at 693

but not the only w ay. There are other w ays, more subtle and perhaps more effective.

Threats w hich put a reasonable person in fear of physical violence have alw ays been abhorrent to the law as an
interference with personal freedom and integrity, and the right of a person to be free from the fear of insult. If the threat
produces the fear of apprehension of physical violence then I am of opinion that the law is breached, although the vic-
tim does not know w hen that physical violence may be effected.'

Accordingly, Taylor J held that a threat made over the telephone was capable of amounting to an as-
sault. In the present case there were no threats but merely silence. In the circumstances in which these con-
stant telephone calls were made to the victims, followed by silence, they were, in our judgment, just as capa-
ble of being terrifying to the victims as if actual threats had been made.

We agree with the reasoning of Taylor J in Barton v Armstrong and, in particular, with his proposition
that whether a particular act, or particular acts, amount to an assault is a question of fact which will depend
upon the circumstances.

In our judgment the making of a telephone call followed by silence, or a series of telephone calls, is ca-
pable of amounting to a relevant act for the purposes of s 47. The act consists in the making of the telephone
call, and it does not matter whether words or silence ensue. There is no doubt that the telephone calls made
the victims apprehensive. Equally, there is no doubt that they caused them psychological damage. In our
judgment, once the fear and the damage are established, then when a telephone call is made by the appel-
lant and the victim lifts the telephone and then knows that the man is telephoning them yet again, they will be
apprehensive of suffering the very psychological damage from which they did suffer, namely palpitations,
difficulty in breathing, cold sweats, anxiety, inability to sleep, dizziness, stress, and the like. As in the case of
Smith, these victims would not know what the appellant was going to do next. In most cases an assault is
likely to involve direct physical violence to the body. However, the fact that the violence is inflicted indirectly,
causing psychological harm, does not render the act to be any less an act of violence. Nor, in our judgment,
is it necessary that there should be an immediate proximity between defendant and victim. Fear can be in-
stilled as readily over the telephone as it can through the window. In our judgment repetitious telephone calls
of this nature are likely to cause the victims to apprehend immediate and unlawful violence. That the appel-
lant so intended was inherent in his pleas of guilty.
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Academic writers have indicated 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, for example, Professor Glanville Williams, Criminal Law (2nd edn), p 176. We are very mindful of that
admonition, but, in this case, and in the case in which Tucker J has just given judgment, R v Johnson [1996]
Crim LR 828, we are satisfied that the conduct complained of falls squarely within the recognised definition of
the offence.

For those reasons this appeal against conviction is dismissed; but we turn to deal very shortly with the
appeal against sentence.

As we indicated, the appellant was sentenced to 3 years' imprisonment.

[1997] 1 FLR 687 at 694

He has now served that sentence and counsel, who now appears on his behalf, does not press any submis-
sion on us.

We have already recited the facts giving rise to the pleas of guilty, and it is not necessary for us to recite
them again.

This was a serious case and, as we have described, each of the victims of the appellant suffered very
considerably. There is no doubt at all that the sentence imposed by his Honour Judge Prosser was a tough
sentence, but we are not persuaded that it was manifestly excessive. Accordingly the appeal against sen-
tence is also dismissed.

Appeal dismissed.

Solicitors: Registrar of Criminal AppealsCrown Prosecution Service

CHRISTOPHER WAGSTAFFE

Barrister

House of Lords

15 January 1997

Lord Mustill, Lord Lloyd of Berwick and Lord Hoffmann

Petition by the appellant for leave to appeal from the decision of the Court of App eal allowed.