B e f o r e :
LORD JUSTICE HOBHOUSE
MR JUSTICE JUDGE
and
MR JUSTICE BELL
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R E G I N A |
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MIKE CHAN FOOK |
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(Computer Aided Transcript of the Stenograph Notes of
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
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MR C.SALTER appeared on behalf of the Appellant
MR B.BARKER and MR R.OVERBURY appeared on behalf of the Crown
Tuesday, 19th October 1993 and
Friday, 22nd October, 1993
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HTML VERSION OF JUDGMENT
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Friday, 22nd October 1993
JUDGMENT
LORD JUSTICE HOBHOUSE: On 24th February 1992 after a trial at the Crown Court at Southwark before His Honour Judge Bernard Charles QC and a Jury this Appellant, Mike Chan Fook, was convicted on a single count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. He was ordered to pay £250 compensation and £1,000 costs. The particulars of the offence were that on 30th May 1991 he "assaulted Sidney Martins thereby occasioning him actual bodily harm". (No point was taken on the drafting of these particulars.) The question raised by this Appeal is whether the Jury were correctly directed upon the meaning of the words "actual bodily harm".
The facts of the case were unusual. Sidney Martins was a French student who in May 1991 was attending a course in English in London. He was lodging at the house in Lewisham of a Mrs Fox. Also living in the house were Mrs Fox's daughter Jackie and her son Peter. Jackie was engaged to marry the Appellant. On 29th May, Jackie Fox apparently discovered that her engagement ring was missing from her room. She suspected that Mr Martins had stolen it although there was no evidence, other than opportunity, to implicate Mr Martins in any way whatever. However the household, including the Appellant, decided that they should investigate the matter further. The following evening they contrived by a subterfuge that Mr Martins should come down to Mrs Fox's living room so as to give the Appellant and Peter Fox an opportunity to search his room. This they did but they neither found the ring nor any evidence to connect Mr Martins with its loss. Undeterred, they then carried out an interrogation of Mr Martins in the living room. The person primarily involved was the Appellant. On any view this interrogation was very aggressively conducted and extremely disturbing and frightening for Mr Martins who was a stranger in this country and only had a limited familiarity with the English language. Mr Martins was unable to offer them any explanation for the loss of the ring and had no information to give the Appellant and the others who were interrogating him. The interrogation ended with the Appellant dragging Mr Martins upstairs to his room on the second floor and locking him in. The Appellant had already removed from Mr Martins his keys and his personal papers.
However the evidence of Mr Martins was that things went further. He said that the Appellant struck him about the head many times with his hands, using on some occasions the base of his palm causing bruises to Mr Martins' face and head. He felt abused and humiliated. Mr Martins also said that, during the course of the assaults on him he had been kneed by the Appellant and at one point his head had hit the wall. He said that he had asked that the police be called but the Appellant had refused. He further said that, when locking him into his room, the Appellant had threatened him with further violence if he did not tell them where the ring was.
Having been locked in his room he was frightened that the Appellant would return and assault him further. "I thought he was going to get a weapon because he was very violent." It was in those circumstances that Mr Martins bolted the door on the inside, made a rope out of his bed sheets knotted together, attached the sheets to the curtain rail and then sought to escape through the window to the ground below. Unfortunately the curtain rail broke under his weight and he fell into the garden below. He suffered injuries from his fall. At the trial a statement was read from a doctor at the hospital who had examined him at eight fifteen that night. Mr Martins had a fractured right wrist and a dislocation of his pelvis. He further had tenderness in his right groin and bruising on his face.
The defence case at the trial was that the interrogation and other aspects of the incident had not involved any hitting of Mr Martins. It was admitted that the Appellant had taken him upstairs forcibly by the collar of his jacket and that the Appellant had locked him in his room. It was said that at no time had Mr Martins been struck nor had any injuries been caused to him. The injuries observed by the doctor were attributable solely to his fall from the window and were not caused by any assault by the Appellant.
Although the evidence of Mr Martins, and indeed the defence case, would have justified the Appellant being charged with other counts besides the count of assault occasioning actual bodily harm, the Appellant was tried solely on the single count under section 47. The case was not complicated by any allegation that the injuries suffered by Mr Martins when he fell to the ground from his window were caused by the assaults which had taken place to his being locked in his room. (cf. R.v. Roberts 56 Cr.App.R.95.) However, unfortunately, the prosecution chose to introduce into the case an allegation that even if Mr Martins had suffered no physical injury at all as a result of the assault upon him by the Appellant, he had nevertheless been reduced to a mental state which in itself, without more, amounted to actual bodily harm. The only evidence to which the prosecution could point in support of this allegation was the evidence of Mr Martins that he felt abused and humiliated, that he had been threatened with further violence, and that he was very frightened. There was no medical or psychiatric evidence to support the allegation. There was no evidence that he was in a state of shock at any time prior to receiving the injuries which he suffered as a result of falling from the window. Nevertheless the trial Judge directed the Jury in terms of the sentence in Archbold paragraph 19 197: "An assault which causes a hysterical and nervous condition is an assault occasioning actual bodily harm." He left that question to the Jury in addition to the other questions in the case. The Appellant's submission before us is that there was a misdirection and that in any event there was no evidence of any psychological injury which was capable of supporting the allegation of actual bodily harm and the allegation of such further harm should not have been left to the Jury.
The trial Judge said:
If you are satisfied that he committed an assault, then you have to consider whether it was an assault, as the indictment says, occasioning him actual bodily harm, in other words, causing Mr Martins actual bodily harm. What is meant by 'actual bodily harm'? It does not have to be permanent. It does not have to be serious. It is some actual harm which interferes with the comfort of the individual for the time being, described as any hurt or injury calculated to interfere with the health or comfort of Mr Martins, in this case. An assault that causes a hysterical or nervous condition is capable of being an assault causing actual bodily harm.
They [the Crown] have to prove that the harm some actual bodily harm was sustained and was the result of the assault. What the Crown says the result of the assault was, firstly, his bruising to his head or face; and a bruise that is temporary, interferes with one's comfort, does it not; on a temporary basis. It was sore, it was tender, you do not have it beforehand. One would be able to say 'I have been harmed as a result', 'on my body I have a bruise which I did not have before'. Not the most serious thing naturally. Equally the Crown says that his mental state which caused him to lock the door and take that extreme action of climbing out of the window, tying the sheets together indicates that he was in a nervous, maybe hysterical condition. It is a matter for you to Judge what his condition was. That in itself is capable of amounting to actual bodily harm. Why did he go out of the window at all?
You have to be satisfied, before you can convict, that some actual bodily harm was sustained by Mr Martins which was caused by the assault. So it has to be a direct consequence, and what the Crown puts in front of you and invites you to consider is the bruising to the face, and the mental state of Mr Martins when he let us break the sequence, put his foot onto the windowsill in order to descend down the sheet, not when he hit the ground, having tried to descend down the sheet. So members of the Jury, that, in a nutshell, is what this case is about.
He [the defendant] was asked if he could think of any reason why Mr Martins should leave his room via the window, lock himself in his room and leave all his property behind him, and he couldn't. The Crown says that the reason for acting in that way was, he was hysterical, he was frightened. He was in such a state that he took extreme emergency action. It is for you to decide which is right. "
There were a number of other points during the summing up at which the Judge referred to the "mental state" of Mr Martins.
Historically, the phrase "bodily harm" antedates the 1861 Act. It has been used for a long time in English law in connection with the definitions of aggravated assault and murder. At Bristol in 1858, Willes J in R.v. Ashman 1 F & F 88, on the trial of a defendant charged with shooting with intent, directed the Jury:
"You you must be satisfied that the prisoner had an intent to do grievous bodily harm. It is not necessary that such harm should have been actually done, or that it should be either permanent or dangerous, if it be such as seriously to interfere with comfort or health, it is sufficient."
That phraseology was extensively used in relation to grievous bodily harm until the decision of the House of Lords in DPP v. Smith [1961] AC 290. That case concerned the element of mens rea necessary for the crime of murder. The trial Judge had used the phrase "intends to kill or to inflict some harm which will seriously interfere for a time with health or comfort". Vicount Kilmuir LC with the agreement of all members of the House said (at page 334):
"My Lords I confess that whether one is considering the crime of murder or the statutory offence I can find no warrant for giving the words 'grievous bodily harm' a meaning other than that which the words convey in their ordinary natural meaning. 'Bodily harm' needs no explanation, and 'grievous' means no more and no less than 'really serious'. In this connection your Lordships will refer to the judgment of the Supreme Court of Victoria in the case of R.v.Miller [1951] VLR 346, 357). In giving the judgment of the Court, Martin J, having expressed the view that the directions of Willes J could only be justified, if at all, in the case of the statutory offence said: '....there does not appear to be any justification for treating the expression 'grievous bodily harm' or the other similar expressions used in the authorities upon this common law question which are cited as bearing any other than their ordinary and natural meaning.' In my opinion the view of the law thus expressed by Martin J is correct and I would only add that I can see no ground for giving the words a wider meaning when considering the statutory offence."
We consider that the same is true of the phrase "actual bodily harm". These are three words of the English language which receive no elaboration and in the ordinary course should not receive any. The word "harm" is a synonym for injury. The word "actual" indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant. The purpose of the definition in section 47 is to define an element of aggravation in the assault. It must be an assault which besides being an assault (or assault and battery) causes to the victim some injury.
The danger of any elaboration of the words of the statute is that it may have the effect, as was pointed out by the House of lords, of altering, or at the least distracting the Jury from, the ordinary meaning of the words. Further, as can be seen from the summing up in the present case, there may be an elision of the need to show some harm or injury. There will be a risk that language will be used which suggests to the Jury that it is sufficient that the assault has interfered with the heath or comfort of the victim, whether or not any injury or hurt has been caused. No doubt what is intended by those who have used these words in the past is to indicate that some injury which otherwise might be regarded as wholly trivial is not to be so regarded because it has caused the victim pain. Similarly an injury can be caused to someone by injuring their health; an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill. The injury may be internal and may not be accompanied by any external injury. A blow may leave no external mark but may cause the victim to lose consciousness.
The dangers of departing from the simple words "bodily harm" and the elision which may result are further illustrated by R.v. Metharam 45 Cr.App.R.304, a case of wounding with intent contrary to section 18 of the Act, in which the Court of Appeal followed and applied what had been said by Vicount Kilmuir LC in Smith. At page 307 Ashworth J said:
"It is a misdirection to adopt the old formula and invite a Jury to find a man accused of wounding with intent to do grievous bodily harm guilty if the only intent established is one to interfere seriously with the health or comfort. Reading the speech of the Lord Chancellor as a whole it seems to follow that, certainly as applied to this case, the adoption of the old formula is one which amounts to a misdirection."
In certain cases an explanation may be required of what is involved in the word "bodily". The sentence we have quoted from Archbold and the direction which the trial judge gave in the present case derived from what was said by Lynskey J in R.v. Miller [1954] 2 QB 282 and 38 Cr.App.R.1. That was a case where the defendant was charged on an indictment containing two counts. The first alleged rape and the second alleged assault occasioning actual bodily harm. Both counts related to the same incident. The alleged victim was the defendant's wife to whom he was still legally married although they had separated and she was petitioning for divorce. At the commencement of the trial the defence moved to quash the indictment. The rape count was quashed on the basis that a husband could not in law rape his wife. (See now R.v. R [1992] 1 AC 599.) Mr Justice Lynskey declined to quash the other count. The report at [1954] 2 QB 285 shows that there was evidence that the wife had suffered acute mental and emotional distress which persisted over more than one day as a result of the assaults upon her; it was said that that was capable of amounting to a hurt or injury calculated to interfere with her health and comfort. At pages 292 and 10 of the respective reports Lynskey J said:
"The point has been taken that there is no evidence of bodily harm. The bodily harm alleged is said to be the result of the prisoner's action, that is, if the jury accept the evidence that he threw the wife down three times. There is evidence that afterwards she was in a hysterical and nervous condition, but it is said by counsel that that is not actual bodily harm. Actual bodily harm, according to Archbold 32nd Edition page 959 includes 'any hurt or injury calculated to interfere with the health or comfort of the prosecutor'. There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that if a person is caused hurt or injury resulting, not in any physical injury but in an injury to her state of mind for the time being, that is within the definition of actual bodily harm, and on that point I would leave the case to the jury."
Certain comments need to be made about this passage. First, Lynskey J was concerned with a question whether the indictment should be quashed. (The Jury subsequently returned a verdict of guilty of common assault.) He was not concerned with defining the offence. Secondly, in using the phrase "injury to her state of mind", he was using language which, certainly today, would be capable of creating confusion. The 'state' of somebody's mind is not something which is capable of being injured on any ordinary use of language and there are today more accurate and less misleading expressions that should be used. Thirdly, the statement in Archbold, although drawn verbatim from the head note in the Law reports, distorts what Lynskey J actually said.
The first question on the present appeal is whether the inclusion of the word "bodily" is the phrase "actual bodily harm" limits harm to harm to the skin, flesh and bones of the victim. Mr Justice Lynskey rejected this submission. In our judgment he was right to do so. The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties. The matter was well summarised by Lord Wilberforce in McLoughlin v. O.Brian [1983] 1 AC 410 at 418:
"Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact."
As is pointed out by Lord Wilberforce earlier in his speech the conventional phrase "nervous shock" is now inaccurate and inappropriate. Observations to the like effect are to be found in Attia v. British Gas [1988] 1 QB 304 and Alcock v. The Chief Constable of South Yorkshire [1992] 1 AC 310. In the case of Attia, the Court of Appeal discussed where the borderline should be drawn between on the one hand the emotions of distress and grief and on the other hand some actual psychiatric illness such as anxiety neurosis or a reactive depression. The authorities recognised that there is a line to be drawn and whether any given case falls on one side or the other is a matter for expert evidence. The civil cases are also concerned with a broader question of the boundaries of the law of negligence and the duty of care, which do not concern us.
Accordingly the phrase "actual bodily harm" is capable of include 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. The phrase "state of mind" is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused; its use is likely to create in the minds of the Jury the impression that something which is no more than a strong emotion, such as extreme fear or panic, can amount to actual bodily harm. It cannot. Similarly Juries should not be directed that an assault which causes a hysterical and nervous condition is an assault occasioning actual bodily harm. Where there is evidence that the assault has caused some psychiatric injury, the Jury should be directed that that injury is capable of amounting to actual bodily harm; otherwise there should be no reference to the mental state of the victim following the assault unless it be relevant to some other aspect of the case, as it was in Roberts.
It is also relevant to have in mind the relationship between the offence of aggravated assault comprised in section 47 and simple assault. The latter can include conduct which causes the victim to apprehend immediate and unlawful violence. (Fagan v. Metropolitan Police [1969] 1 QB 439.) To treat the victim's fear of such unlawful violence, without more, as amounting to actual bodily harm would be to risk rendering the definition of the aggravated offence academic in many cases.
In any case where psychiatric injury is relied upon as the basis for an allegation of bodily harm, and the matter has not been admitted by the defence, expert evidence should be called by the prosecution. It should not be left to be inferred by the Jury from the general facts of the case. In the absence of appropriate expert evidence a question whether or not the assault occasioned psychiatric injury should not be left to the Jury. Cases where it is necessary to allege that psychiatric injury has been caused by an assault will be very few and far between. It is to be observed that there has been no reported case on the point since 1953 and the present case was not, on a correct assessment, a case where such an allegation should have been made. But, if there should be such a case, the evidential difficulties will be no greater than Juries often have to consider in other aspects of the criminal law, for example an issue of diminished responsibility. There is no reason for refusing to have regard to psychiatric injury as the consequence of an assault if there is properly qualified evidence that it has occurred.
Counsel referred us to the Consultation Paper No.122 published by the Law Commission on the subject of Offences Against the Person. Whilst we found the discussion contained in that document enlightening, we do not think that it is necessary to refer to it further in this judgment.
Accordingly the Appeal will be allowed. The directions to the Jury were defective in law and there was no evidence to be left to the Jury in support of the allegation that any psychiatric injury had been caused to Mr Martins by the assault. Since the indictment did not include any alternative count charging common assault, it follows that the conviction must be quashed.
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