QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MACKAY
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The RESPONDENT did not appear and was not represented
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"10. We came to the conclusion that the submission advanced on behalf of the Respondent was well founded and correct in law. We were prepared to assume for the purposes of the submission that the Respondent's smirking was evidence from which it could be inferred that the way in which matters developed was neither unforeseen by him nor unwelcome to him. Nevertheless the evidence did not disclose any positive act committed by him and his untruthful answers to questions did not convert a (negative) omission to act into a (positive) act. We accepted that an omission to act cannot in law amount to an assault.
11. We did not consider the analogy sought to be drawn with cases where the harm actually sustained by the victim is the indirect consequence of something done by the defendant (in the sense that while it is the victim's own act or course of conduct which is the immediate cause of the injury, nevertheless the victim's actions are themselves caused or provoked by the defendant's act)... to be a valid one in the circumstances of this case. In truth the Respondent did not do anything to cause PC Hill to take the actions she did take. What he did was permissively to stand back and allow her to do as she did. The fact that he did not warn her of the risks that she thereby ran could not turn his conduct, reprehensible as it otherwise was, into an assault. Had we been of the opinion that his conduct was capable in law of amounting to an assault, we would have been willing to conclude that there was evidence capable of establishing causation of the harm. But in short we concluded that the prosecution had not produced any evidence of any (positive) act on the part of the defendant capable of amounting to the actus reus of the offence of assault.
12. For these reasons we came to the conclusion that there was no case to answer and that the defendant was entitled to be acquitted. We therefore allowed the appeal and quashed the conviction." (The emphases appear in the case stated)
"It must be proved that the assault (which includes 'battery') 'occasioned' or caused the bodily harm. Where the harm is not the direct result of the defendant's act, as, for example, where his conduct was such as to provoke the victim to jump from a moving car, the test is whether the victim's act was the natural result of the defendant's action or words, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing."
It is Roberts that is cited as the authority for that proposition.
"The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing."
Miss Lawrence relies on that test so formulated, not least because of the reference to "saying or doing". Reduced to its essentials, Miss Lawrence's submission is that the respondent had created a danger by an act, namely putting an exposed needle into his pocket; that act was a continuing act until the injury was caused; it was compounded by a further positive act, namely the respondent's lying words of assurance that he had no needles or sharps on him; and that, in the circumstances, it was reasonably foreseeable that PC Hill would be injured by the needle upon pursuing the search following the assurance. This, submits Miss Lawrence, amounts prima facie to the offence of assault occasioning actual bodily harm.
"The defendant, a schoolboy aged 15, was attending a chemistry class at his school. Pupils were provided at the outset with an instruction sheet emphasising the need of great care with carrying out experiments and were orally warned of the dangers of working with acid. The lesson included observations of the effects of putting concentrated sulphuric acid into chlorine, water and ammonia. During the lesson the defendant obtained permission to visit the lavatory to wash some acid off his hand and, unknown to the master in charge, took with him a boiling tube of concentrated acid. He went into a cubicle to test the reaction of the acid with toilet paper and, upon hearing footsteps outside, panicked and poured the rest of the acid into the upturned nozzle of an air hand-face drying machine. When the footsteps receded, he returned to his class discarding the empty tube on the way. He intended to return and deal with the acid in the dryer later. In the meanwhile another pupil went to the lavatory to wash his hands and turned on the dryer with the result that the acid was ejected onto his face, leaving a permanent scar. The defendant was charged with assault causing actual bodily harm contrary to section 47 of the Offences Against the Persons Act 1861. The justices dismissed the charge finding that the defendant panicked on hearing the footsteps approaching the lavatory but his motive was only to conceal the acid and his omission to warn others did not constitute an assault for the purposes of section 47."
The Divisional Court allowed the prosecutor's appeal holding that, on the justices' findings of fact, "it was clear that the Defendant knew full well that he had created a dangerous situation and the inescapable inference was that he decided to take the risk of someone using the machine before he could get back and render it harmless or gave no thought to that risk." In his judgment Parker LJ referred to the case of Clarence (1888) 22 QBD 23 in which Stephen J said (at page 45):
"If a man laid a trap for another into which he fell after an interval the man who laid it would during the interval be guilty of an attempt to assault and of an actual assault as soon as the man fell in."
Parker LJ concluded (at page 27):
"In the same way a Defendant, who pours a dangerous substance into a machine, just as truly assaults the next user of the machine as if he had himself switched the machine on. So, too, in my judgment would he be guilty of an assault if he was guilty of relevant recklessness."
"... I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of actus reus, suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failures to act cannot give rise to criminal liability in English Law."
In the present case, the relevant state of mind would be one of recklessness rather than intention.