CO/3522/2003 
Neutral Citation Number: [2003] EWHC 2908 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 13th November 2003
 B E F O R E:

MR JUSTICE MAURICE KAY 

MR JUSTICE MACKAY 
 
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DIRECTOR OF PUBLIC PROSECUTIONS
(APPELLANT)

-v- 

SANTA-BERMUDEZ
(RESPONDENT) 
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MISS R LAWRENCE (instructed by Crown Prosecution Service) appeared on behalf of the APPELLANT
The RESPONDENT did not appear and was not represented 
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J U D G M E N T 
Thursday, 13th November 2003

1.	MR JUSTICE MAURICE KAY:  This is a prosecutor's appeal by way of case stated from a decision of the Crown Court sitting at Middlesex Guildhall on 6 December 2001.  It raises an important point and we have given permission for the appeal to proceed notwithstanding that it was lodged out of time.  The decision of the Crown Court was to accede to a defence submission of no case to answer in respect of an appeal against a conviction by Horseferry Road Magistrates Court for an offence of assault occasioning actual bodily harm.  The alleged victim of the offence was a woman police officer, PC Hill. 
2.	On the hearing of the appeal PC Hill gave evidence that at about 5.45 pm on 3 June 2001 she and other officers had been called to Stockwell Underground Station where ticket touts were operating.  She was in full uniform.  She saw the respondent by the ticket machines and apparently acting as a tout.  She approached him and after a brief conversation she asked him to accompany her to the station supervisor's office, which he did.  In the office PC Hill informed the respondent that she intended to carry out a full body search pursuant to section 1 of the Police and Criminal Evidence Act 1984.  She first asked him to turn out all his pockets and to place the contents on a table.  The respondent did so.  The items placed on the table included one or more syringes without needles.  PC Hill also asked the respondent to pull out the linings of the pockets of the leather jacket which he was wearing, and this he did with the exception of two small breast pockets, one on either side, at the top of the jacket.  The linings of these pockets could not be pulled out. 
3.	There was then a short conversation.  The officer asked the respondent "Is that everything", to which he replied "Yes".   She then asked "Are you sure", and he again replied "Yes".   She then asked "Are you sure that you do not have any needles or sharps on you?", and the respondent replied "No".  Following this conversation PC Hill commenced the search, and in the course of so doing put two fingers of her left hand into one of the small pockets.  She felt a stinging sensation to her middle finger, and on withdrawing her fingers from the pocket she saw that her middle finger had been pierced by a hypodermic needle which was still hanging from her fingertip.  She removed the needle and saw that her finger was bleeding.  She noticed that the respondent had a smirk on his face.  He also immediately took another needle from a small pocket at the top of his trousers.  PC Hill said "I thought you didn't have any sharps on you", at which the respondent merely shrugged his shoulders and again smirked.  Although it is not material to the issue that arises in this case, it is a fact that the respondent's blood, when tested, proved positive for HIV and Hepatitis C.  It may be that he was previously unaware of the infection.  Happily, PC Hill does not appear to have been infected.
4.	At the end of the prosecution case a submission was made on behalf of the respondent that he had no case to answer on the charge of assault occasioning actual bodily harm.  The submission was to the effect that an omission to act cannot amount to an assault or battery and that there was no evidence of any act on the part of the respondent capable of amounting to an assault.  The court came to the reluctant conclusion that this submission was well founded.  The decision is summarised in these paragraphs:
"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)
5.	The question posed for the opinion of this court is simply whether the Crown Court was correct in law in reaching these conclusions.  We have had the benefit of the submissions of Miss Lawrence on behalf of the Crown Prosecution Service.  We have not had submissions on behalf of the respondent, probably because it has been made clear that the Crown Prosecution Service seek an answer to the question posed to this court but, if that answer is in their favour, they do not wish the matter to be remitted to the Crown Court for rehearing.  This view is conditioned by the passage of time for which, it has to be said, the Crown Prosecution Service is substantially responsible.  
6.	As often happens, Miss Lawrence, who appeared below, has been able to place before us far more authorities than were to hand in the Crown Court, where she was instructed at the last minute and had to deal with the defence submission at short notice.  It seems that the only authorities submitted to the Crown Court were Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 and Regina v Roberts 56 Cr App R 95.  The passage in Archbold, Criminal Pleading Evidence and Practice, 2003, dealing with the actus reus of assault occasioning actual bodily harm states (at paragraph 19-195):
"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.  
7.	In Roberts, the complainant had been a passenger in the appellant's car.  As he had been driving it, he had assaulted her in the car but not so as to cause her actual bodily harm.  However, as his assault continued, she opened the car door and jumped out.  This caused her to sustain actual bodily harm.  He was convicted of an offence under section 47 of the Offences Against The Person Act.  On appeal, it was held that the proper test was not whether he actually foresaw the conduct of the victim which resulted in the actual bodily harm, but whether that conduct could reasonably have been foreseen as the consequence of what he was saying or doing.  The appeal was dismissed.  Stephenson LJ said (at page 102):
"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.
8.	Miss Lawrence has referred us to a number of authorities over and above Roberts.  She places particular reliance on Director of Public Prosecutions v K (1990) 91 Cr App R 23.  The facts of that case were set out as follows in the headnote:
"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."
9.	Of the other authorities referred to by Miss Lawrence, it is appropriate to refer to Regina v Miller [1983] 2 AC 161.  That was a case of arson rather than assault but, apparently speaking in terms of general principle, Lord Diplock said (at page 176D):
"... 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.
10.	A great deal of undesirable complexity has bedevilled our criminal law as a result of quasi theological distinctions between acts and omissions.  Some of the illogicality is identified in Smith and Hogan, Criminal Law, 10th Edition, pages 46 to 52.  In my judgment, and without the need to express oneself in the language of universal principle, the authorities of Roberts, K and Miller support the following proposition: where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm.  It remains necessary for the prosecution to prove an intention to assault or appropriate  recklessness.  
11.	In the present case, if (as the court implicitly found) the respondent, by giving PC Hill a dishonest assurance about the contents of his pockets, thereby exposed her to a reasonably foreseeable risk of an injury which materialised, it was erroneous of the court to conclude that there was no evidential basis for the actus reus of assault occasioning actual bodily harm.  For my part I would answer the question posed in the negative - the court was not correct to accede to the submission of no case to answer.  I would therefore allow the appeal but without further order. 
12.	MR JUSTICE MACKAY:  I agree.