Case No. 95/1963/Z5
Neutral Citation Number: [1996] EWCA Crim 441
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Date: Tuesday 14th May 1996

B e f o r e:

LORD JUSTICE SWINTON THOMAS

MR JUSTICE TUCKER

and

MR JUSTICE LONGMORE

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R E G I N A

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ROBERT MATTHEW IRELAND

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

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MR E EGAN (MR P RICHARDS, 22.4.96) appeared on behalf
of the Appellant
MR R GRIFFITHS appeared on behalf of the Crown

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J U D G M E N T

LORD JUSTICE SWINTON THOMAS:  On 6th February 1995, in the Crown Court at Newport (Gwent) before His Honour Judge Prosser QC, this appellant pleaded guilty to three counts of assault occasioning actual bodily harm.  On 10th March 1995 he was sentenced to serve three 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 Counts 1 and 4.  Those pleas were accepted. 

	Count 2 charged the appellant with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861.  The particulars of the offence charged him that on a day between 1st June 1994 and 11th September 1994 he assaulted Patricia Ann Hannam, thereby occasioning her actual bodily harm.  Count 3 was in similar terms, charging him that on a day between 1st June 1994 and 11th September 1994 he assaulted Sarah Jane Williams, thereby occasioning her actual bodily harm.  Count 5 charged him that on a day between 1st June 1994 and 11th September 1994 he assaulted Susan Young, thereby occasioning her actual bodily harm.

	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 for 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 9th 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 nervousness.

	The issue that arises on this appeal is whether a telephone call, followed by silence, can constitute an assault for the purposes of section 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 witness statements disclosed an offence.  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 Phillip Richards, on behalf of the appellant, that the making of a telephone call, followed by silence, or a series of telephone calls, followed by silence, does not constitute an assault for the purposes of section 47 of the Offence Against the Person Act 1861.

	An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence.  This definition, which is to be found in the 1996 Edition of Archbold at paragraph 19/166, has received judicial approval in a number of cases, most recently in R. v. Savage [1992] 1 AC 699, at page 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 section 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 violence; 
	(3) the accused must have either intended the victim to 	apprehend violence or to have foreseen 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 apprehension of immediate and unlawful violence there must be physical proximity between the defendant and the victim, 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 Mike Chan-Fook (1994) 99 Cr.App.R. 147, 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 evidence that the victims have suffered psychiatric damage, and this was conceded before Judge Prosser and by the appellant in this appeal.  In Mike Chan-Fook Hobhouse LJ said, at page 151:

	"Similarly an injury can be caused to someone by injuring their health: an assault may have the consequence of infecting the system with a disease or causing the victim to become ill.  The injury may be internal and may not be accompanied by any 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 violence.  In our judgment, 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 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 victims, amd when the victims lifted the telephone they were placed in immediate fear and suffered the consequences 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 battery, 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 pre-date the invention of the telephone.  We must apply the law to conditions as they are in the 20th 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 capable of amounting to an assault.

	In Fagan v. Metropolitan Commissioner (1968) 52 Cr.App.R. 700, James J, in a judgment in which the Lord Chief Justice agreed, drew the distinction between an assault and a battery and said, at page 704:

	"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, Woking Police Station  (1983) 76 Cr.App.R. 234, is an important case for the purpose of this appeal.  The defendant was charged under section 4 of the Vagrancy Act 1824 which provides: 

	"Every person being found...in any enclosed...garden for any unlawful purpose shall be deemed a rogue and a 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 offence charged, i.e. 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 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 Justices could say that the defendant had intended she should so apprehend.  
	In his judgment Kerr LJ said, at page 237:

	"The question of law is: 'whether there was evidence upon which the magistrates' court could conclude that the purpose of the defendant was to assault [Miss M] and consequently "an unlawful purpose" within the meaning of the Vagrancy Act 1824.'...

		In the present case, on the finding which I have summarised, there was quite clearly an intention to cause 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 where she was merely startled or surprised or ashamed to be seen in her nightclothes; she was terrified as the result of what the defendant deliberately did, knowing and either intending or being reckless as to whether it would cause that fear in her.

		Ultimately, as it seems to me, the only point taken by Mr Denny which requires some consideration is whether there was a sufficient apprehension, within the definition which I have read, of immediate and unlawful violence.  He takes the point that there is no finding here that what Miss [M] was terrified of was some violence, and indeed some violence which can be described as immediate.  However, as it seems to me, Mr Greenbourne is right when he submits, really in the form of a question:  'What else, other than some form of immediate violence, could Miss [M] have been terrified about?'...

		In the present case the defendant intended to frighten Miss [M] and Miss [M] was frightened.  As it seems to me, there is no need for a finding that what she was frightened of, which she probably could not analyse at that moment, was some innominate terror of some potential violence.  It was clearly a situation where the basis of the fear which was instilled in her was that she did not know what the defendant was going to do next, but that, whatever he might be going to do next, and sufficiently 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 Mike 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 page 455 Taylor J said:

	"Mr. Staff's first and second propositions can, I think, be best dealt with together.  They are the ones upon which he most strongly relied.  There are, undoubtedly, many authorities which show that mere words do not constitute an assault, however insulting or even menacing they may be, and that the intention to do violence must be expressed in acts. ... 

		Whatever the reason may be, it is clear from the many authorities cited on this subject that mere words themselves 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 words.  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 occasions, 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 was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words.  If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence?  In the age in which 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 who 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 protection afforded by civil and criminal law as to assault.  How immediate does the fear of physical violence have to be?  In my opinion the answer 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.  Others, I believe, can create the apprehension even if it is made clear that violence may occur in the future, at times unspecified and uncertain.  Being able to immediately carry out the threat is but one way of creating  the fear of apprehension, but not the only way.  There are other ways, more subtle and perhaps more effective.

		Threats which put a reasonable person in fear of physical violence have always 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 victim does not know when that physical violence may be effected."

	Accordingly, Taylor J held that a threat made over the telephone were capable of amounting to an assault.  In the present case there were no threats but merely silence.  In the circumstances in which these constant telephone calls were made to the victims, followed by silence, they were, in our judgment, just as capable 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 capable of amounting to a relevant act for the purposes of section 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 appellant 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 instilled 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 appellant so intended was inherent in his pleas of guilty.

	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 ed.) page 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, 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.

	Are there any further submissions?
 
MR BUCHAN:  My Lords, the appellant has served 18 months of his three year sentence.  There were grounds drafted for an appeal against sentence, but it is perhaps otiose to some extent because he has now been released.
 
LORD JUSTICE SWINTON THOMAS:  I know.
 
MR EGAN:  He has served 18 months of his three year sentence.
 
LORD JUSTICE SWINTON THOMAS:  Do you wish to pursue that or not?
 
MR EGAN:  My Lord, no.  He has served that sentence.  It seems to me, in my submission, that it is otiose.
 
LORD JUSTICE SWINTON THOMAS:  Thank you very much (slight pause).
 
                  SENTENCE JUDGMENT
  
LORD JUSTICE SWINTON THOMAS:  We turn to deal very shortly with the appeal against sentence.

      As we indicated, the appellant was sentenced to three years' imprisonment.  He has now served that sentence and Mr Egan, who now appears on his behalf, does not press any submission 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 sentence is also dismissed.