England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		Friday, 12th May 2000

Friday, 12th May 2000

1. LORD JUSTICE LAWS: This is an appeal by way of Case Stated against the appellant's conviction on 8th September 1999 by the Chesterfield Justices of an offence of assault upon a child by beating, contrary to section 39 of the Criminal Justice Act 1988.
2. The draft case as I understand it was prepared late, owing to the absence from the office of the responsible Justices' clerk. The appellant applied for an extension of time within which to file the case, to which the respondent prosecutor consented. A consent order (I am told by the Crown Office) was submitted on 16th February 2000 but apparently has not been sealed. I merely mention that in order to indicate that if there is any procedural defect in relation to the consent order, I would make the consent order as sought.
3. Section 39 of the Criminal Justice Act 1988 merely provides thus:

"Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the Standard Scale, to imprisonment for a terms not exceeding six months or to both."

4. Although the charge referred to section 39, in truth, common assault by beating remains a common law offence. In fact the appellant faced three charges of assault by beating. In the first the alleged victim was Angela Wright, a young woman with whom he had been involved in a sexual relationship. In the second, the victim was her 12 month old son, Matthew, as I understand it by a different father; and it is the appellant's conviction on that second charge that forms the subject of this appeal. In the third, the victim was a neighbour, Sharon Maycock. All the offences were said to have happened on 26th April 1999.
5. The Magistrates set out their finding in paragraph 2 of the Case, which reads as follows:

"The appellant had entered a plea of guilty to offences (i) and (iii) and not guilty to offence (ii). The matter was heard by us on the 8th September as a trial and also as a 'Newton Hearing' in relation to offences (i) and (iii) as the appellant had disputed the facts. Having considered the evidence, we found the following facts:-

(a) Angela Wright lived at 3 St John's Mount, Newbold, Chesterfield with her child Matthew right, and had been involved in a relationship with the appellant. By April 1999 the relationship was coming to an end.

(b) On the 24th April there had been an incident at the home of Angela Wright after she had confirmed that the relationship was over. During the incident the appellant had said, 'if I cannot have you, that's it, I'll gas you.' He closed the curtains and door and switched on the gas fire. The incident was brought to an end with the appellant saying that he loved Miss Wright and only wanted to frighten her.

(c) Between the 24th and 26th April the appellant made telephone calls to Miss Wright's home and at 10 a.m. on the 26th April he visited the home once again. Miss Wright was present with her child who was approximately 12 months of age at that time.

(d) Miss Wright was in the living room when the appellant knocked on the window and said that he had cancer and asked her to open the window which she did. The appellant was allowed into the house and he accused Miss Wright of taking the child with her when she was stealing from shops.

(e) Whilst Mrs right was holding her baby the appellant punched her twice in the face and as a direct result of the punches the child fell from her arms hitting his head on the floor. The child was visible to the appellant and he would have foreseen the risk of the child being injured given the degree of violence to Miss Wright.

(f) The child was on the floor crying and Miss Wright was also on the floor trying to console him. The appellant punched Miss Wright again. The incident came to an end and the appellant left the house."

6. The remainder of paragraph 2 deals with the epilogue to this unpleasant incident that involved the neighbour Miss Maycock, the victim of the third offence. It is not necessary to read the subparagraphs which deal with that.
7. The appellant made a submission of no case to answer which the magistrates rejected. He declined to give evidence and was convicted of the second charge against the child having, as I have made clear, pleaded guilty to the other two charges.
8. The basis of the submission of no case was essentially the same as the basis of the Appellant's appeal to this court. The Magistrates summarised it in this way in paragraph 3 of the case:

"3. He submitted that to be guilty of battery it was necessary to establish that he had used force directly to the person of the child and that the evidence indicated that no force was applied directly to the child..."

9. Paragraph 4 of the case records the submission of the respondent prosecutor.

"The respondent conceded that there had been no direct violence to the child and that the appellant had not intended to assault the child. However it was submitted that the appellant had been reckless and that he had applied violence to the mother which had itself caused the child to fall. As such there had been direct violence to the child."

10. Mr Head for the appellant submits that there is a mismatch between the opening words of that paragraph "reporting respondent's concession" and the last sentence. However that may be, as I have said, the magistrates convicted the appellant. The Case Stated shows that upon the way to doing so, they considered two questions: (i) was it shown that the Appellant was reckless in relation to the injury to the child? It is common ground that recklessness may suffice as the mens rea for battery, at least where there is actual foresight by the defendant of the risk of harm to the potential victim of the kind which, in the event, the victim suffered (See Cunningham [1957] 2 QB 396). The Magistrates concluded in this case that it was proved that the appellant had been reckless, and there is no challenge to that finding.
11. (ii) Did the facts disclose a battery properly so called? It is to this question that the appeal is directed. It is accepted that the meaning of battery is correctly given in the current edition of Archbold, paragraph 19/166A:

"An act by way a person intentionally or recklessly applies force to the complainant."

12. The crucial question is, what is meant by the application of force in the context of the offence of battery?
13. The Case Stated makes it plain that the Magistrates heard only exiguous argument on this issue. This is what they said in conclusion:

"To be guilty of a reckless battery it was necessary to establish in this case that unlawful force was applied by the appellant to the child and that the appellant saw that possibility.

The appellant's use of force on this occasion was unlawful. He punched Angela Wright twice and in such a way that the child fell from her hands and was injured. It is plain to us that the application of the force to Miss Wright is indistinguishable from the application of force to the child. The fact that the unlawful force caused the child to fall is in our view the same as applying the force directly to the person of the child. The situation was entirely foreseeable. The force applied to Miss Wright was the same force which caused the child to fall, and it was unlawful force.

If the appellant had swung a punch at the child and missed it is likely that no 'assault' would have taken place because the child would not have apprehended immediate violence. If he had swung a punch at Miss Wright and missed but hit the child he would have been guilty of a reckless assault by beating. There is no suggestion that the child jumped - he fell as a direct consequence of the application of force to person that was holding him. Accordingly to suggest that by swinging a punch at Miss Wright, connecting and directly causing the child to fall thereby suffering an injury, no offence is committed in respect of the child, we believe to be absurd. The single act of unlawful violence by the appellant was a battery to both Angela Wright and the child."

14. The question for this Court is put in this way:

"The question for the opinion of the High Court is whether on the facts found in this case the defendant could be said to have assaulted the child Matthew right by beating."

15. I should add, perhaps it is plain already, that in putting forward the question in that way the Magistrates were not, as I understand it, proposing that this Court should examine their finding as to recklessness. I have already said there is no challenge to that. The case is concerned entirely with the proper meaning of "battery" within the context here of a common assault by beating.
16. The appellant's submission is summarised by Mr Head in paragraph 9 of his skeleton argument:

"It is submitted that a direct application of force requires the assailant to have had direct physical contact with the complainant either through his body e.g. a punch or through a medium controlled by his actions e.g. a weapon."

17. What is critical to Mr Head's case is the emphasis placed on the "direct application of force".
18. In support of the position he takes, he has cited the recent decision in their Lordships' House of R -v- Ireland (1998) AC 147. The facts of that case concern what may be called nuisance 'phone calls made to three women. It was said that, as a result of these repeated calls, each of the women suffered psychological damage. It can be seen at once that the facts could hardly be further from those of the present case.
19. Mr Head relies, in particular, on a passage from the speech of Lord Steyn at page 161E to G. Lord Steyn said:

"The starting point must be that an assault is an ingredient of the offence under section 47. It is necessary to consider the two forms which an assault may take. The first is battery, which involves the unlawful application of force by the defendant upon the victim. Usually, section 47 is used to prosecute in cases of this kind. The second form of assault is an act causing the victim to apprehend an imminent application of force upon her: see Fagan -v- Metropolitan Police Commissioner [1969] 1 QB 439, 444 D-E.

One point can be disposed of, quite briefly. The Court of Appeal was not asked to consider whether silent telephone calls resulting in psychiatric injury is capable of constituting a battery. But encouraged by some academic comment it was raised before your Lordships' House. Counsel for Ireland was most economical in his argument on the point. I will try to match his economy of words. In my view not it is not feasible to enlarge the generally accepted legal meaning of what is a battery to include the circumstances of a silent caller who causes psychiatric injury."

20. Mr Head's submission is that it is implicit in that passage that battery is limited to the direct application of force.
21. Then Lord Hope of Craighead said:

"Plainly there was no element of battery, although council for the Crown made brief submissions to the contrary, as at no time was there any kind of physical contact between the appellant and his victims. As Swinton Thomas LJ observed in the Court of Appeal [1997] QB 114, 119D, that is a fact of importance in this case. But it is not an end of the matter, because as he went on to say it has been recognised for many centuries that putting a person in fear may amount to what in law is an assault."

22. Mr Head's submission is that here too it is implicit in the reasoning set out in the speech that battery involves the direct application of force. Quite rightly, Mr Head showed us by way of contrast the case of DPP -v- K (1990) 91 Crim App R 23 which, as he accepted, was against him. This is a case whose context was a school chemistry class. One boy went to the lavatory to wash some acid off his hand. He took with him, very foolishly, a boiling tube of concentrated acid. He wanted to test the reaction of the acid with toilet paper, but then he heard footsteps outside. In a panic he poured the acid, or what remained of it, into the upturned nozzle of the drying machine that was there in the lavatory, and he went back to the class. Another boy went to the lavatory to wash his hands, turned on the dryer and the acid was injected into his face, leaving him permanently scarred. The first boy was charged with an assault causing actual bodily harm contrary to section 47.
23. The Justices dismissed the charge, but this Court, upon the prosecutor's appeal by way of Case Stated, directed a conviction, holding that on the Justices' findings:

"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."

24. We were also shown the case of Commissioner of Police of the Metropolis -v- Clarence Wilson [1984] 1 AC 242. This was a case under section 20 of the Offences against the Person Act 1961. In the course of his speech, Lord Roskill found it necessary to ask the question at 259 C:

"What, then, are the allegations expressly or impliedly included in a charge of 'inflicting grievous bodily harm'."

25. An issue in the case was whether grievous bodily harm might be inflicted without an assault being committed. Lord Roskill at 259E referred to the decision of the Supreme Court of Victoria in R -v- Salisbury [1976] VR 452 and cited a passage from that decision at 259G in the House of Lords report as follows:

"'It may be that the somewhat different wording of section 20 of the English Act has played a part in bringing about the existence of the two lines of authority in England, but, be that as it may, we have come to the conclusion that, although the word 'inflicts'... does not have as wide a meaning as the word 'causes'... the word 'inflicts' does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted... either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'inflicted' it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault... are not necessarily included in the misdemeanour of inflicting grievous bodily harm..."

26. Lord Roskill then proceeds to remark that the conclusion in the Supreme Court of Victoria was reached after review of earlier English authorities. The cases in question are referred to. They include the case of R -v- Martin (1888) 8QBD 54, a case decided by the Court of Crown Cases Reserved presided over by the Lord Chief Justice, Lord Coleridge. The case is quite a celebrated one. It concerned events at a theatre when the defendant, intending to cause terror in the minds of persons as they left the theatre, put out the gas lights on a staircase which many of those present had to descend and also placed an iron bar across a doorway through which they had to pass in order to leave the theatre. There was a great panic in the theatre as the lights went out and there was a good deal of injury as persons ran down the steps and, no doubt, collided with the iron bar.
27. The defendant in that case was convicted of unlawfully and maliciously inflicting grievous bodily harm upon two victims in particular. The Court on appeal upheld the conviction.
28. Mr Head was not constrained to say that the case was wrongly decided. That would be a large hill to climb, although he rightly pointed out that no counsel appeared on either side of the case. His submission was that the case can be explained upon the basis that the Appellant was rightly convicted of inflicting grievous bodily harm without, however, having committed an assault; that is to say a battery (compare Lord Roskill's reasoning in Wilson). In the ninth edition of their textbook, Criminal Law, Smith & Hogan say this at page 406:

"Most batteries are directly inflicted, as by D's striking P with his fist or an instrument, or by a missile thrown by him, or by spitting upon P. But it is not essential that the violence should have been so directly inflicted. Thus Stephen J and Wills JJ thought there would be a battery where D digs a pit for P to fall into, or, as in Martin, he causes P to rush into an obstruction. It is submitted that it would undoubtedly be a battery to set a dog on another. If D beat O's horse causing it to run down P, this would be battery by D. No doubt the famous civil case of Scott -v- Shephard is equally good for the criminal law.

D throws a squib into a market house. First E and then F flings the squib away in order to save himself from injury. It explodes and injures P. The acts of E and F are not 'fully voluntary' intervening acts which break the chain of causation. This is battery by D. If there is no violence at all, there is no battery; as where D puts harmful matter into a drink which is consumed by P."

29. It seems to me that Professor Smith in the latest edition of Smith and Hogan there sets out the right approach, subject perhaps to this qualification, that some of the cases may be explained as being in truth cases of the infliction of grievous bodily harm without an assault.
30. However that may be, in my judgment, it is not necessary in this case to find the dividing line between cases where physical harm is inflicted by an assault and those where it is not. The reason is that even if one takes Mr Head's submission as to the meaning of battery to be correct, and it may well be too narrow, the test is made out on the facts of this case.
31. I repeat Mr Head's submission for convenience: a direct application of force requires the assailant to have had direct physical contract with the complainant either through his body, for example by a punch, or through a medium controlled by his action, for example a weapon.
32. Here the movement of Miss Wright whereby she lost hold of the child was entirely and immediately the result of the appellant's action in punching her. There is no difference in logic or good sense between the facts of this case and one where the defendant might have used a weapon to fell the child to the floor, save only that this is a case of reckless and not intentional battery.
33. In a case such as the present, it seems to me plain that it is right that the offence of assault by beating should be available for the criminal condemnation of the defendant's conduct.
34. Mr King for the respondent prosecutor put in a short skeleton argument submitting that on the facts this was a case of transferred malice. With respect to him, I greatly doubt whether that is the case; but I would uphold this conviction and dismiss the appeal on the grounds I have set out. If my Lord were to agree, then any question of transferred malice does not arise.
35. I would answer the question posed by the Magistrates in the affirmative.
36. MR SILBER: I agree.
37. MR HEAD: My Lord, two other matters. My Lord, the first is I have a legal aid certificate.
38. LORD JUSTICE LAWS: You may have taxation.
39. MR HEAD: I am grateful. My Lord, the other matter and one with which I would approach with great deference I would approach is the question of leave to appeal. I am told by my learned friend that the circumstances are not as rare as one would hope them to be and that this method of charging is widespread, so it is apparently a matter of some widespread public importance. In those circumstances, in view of the previous authorities, I venture to submit that it would be proper for the consideration of the Court of Appeal.
40. LORD JUSTICE LAWS: The first question is whether we would certify a point of general public importance.
41. MR HEAD: My Lord, certainly. I would take my submission in a compendious way and ought not to have done so.
42. LORD JUSTICE LAWS: I am not indicating any view at all. What is some times done, perhaps quite frequently done, is that this Court, as does the Court of Appeal (Criminal Division), may certify a point but decline to grant leave. Mr King, do you have any attitude to this application?
43. MR KING: My Lord, in general, no. The practice varies from authority to authority and from county to county. In Derbyshire I know, particularly following the Crown Prosecution Service's current guidelines -- frequently cases of this nature are prosecuted in the form this court has heard, rather than what might be thought to be more appropriate which is a case of actual bodily harm. In other areas it varies. In Nottingham, for example----
44. LORD JUSTICE LAWS: If he was prosecuted for assault occasioning actual bodily harm, exactly the same points of law would arise, just as it is a more serious offence than common assault. Assault occasioning actual bodily harm, except in a threat case, is a battery situation. There is no difference between section 39 and section 47 for the purposes of this point.
45. MR KING: This has focused attention on the precise meaning of the word "battery".
46. LORD JUSTICE LAWS: Unless my Lord has any observations at this point, what I think I might invite you to do is to agree in the next ten minutes a form of words for a question to their Lordships' House. We will come back at 12.10 p.m. and consider that form of words. By then you will have drafted it and we will consider whether or not to certify (a) and (b) to give you leave.

(Short adjournment)

47. LORD JUSTICE LAWS: Is this question agreed by both counsel?
48. MR HEAD: Yes.
49. LORD JUSTICE LAWS: Do sit down while we read it, thank you very much (pause). I take it the square brackets are there to indicate possible options.
50. MR HEAD: Exactly. I was not sure whether to use the word "force" or "violence" and secondly, whether, for this purpose, "foreseeably", which I think everyone has worked on the basis of needs to be in there. Indeed I have not put in the words deliberately or recklessly.
51. LORD JUSTICE LAWS: Foreseeability has nothing to do with the actus reus it only has to do with the mens rea, so it should not be there.
52. MR HEAD: That is why it was, at best, in square bracket and probably should not have been there in the first place.
53. MR JUSTICE SILBER: I think it should be deleted.
54. MR HEAD: I do not know whether the word "force" or "violence" commends itself to you?
55. LORD JUSTICE LAWS: Speaking for myself, I think you would be better of using the word "force" because "violence" might just be thought to beg some questions.
56. MR HEAD: It conceivably might be narrower, which I do not intend to argue it should be.
57. LORD JUSTICE LAWS: The other thing than occurs to me - I am not indicating that we are going to certify, you follow, but just for the purpose of drafting, whether you want to in some way incorporate the words of your submission in paragraph 9 which I thought, for my part, if I may say so, had the virtue of clarity.
58. MR HEAD: My Lord, by all means.
59. LORD JUSTICE LAWS: As you have drafted this question, it refers to direct physical application of unlawful force.
60. MR HEAD: Perhaps it should be the word "contact".
61. LORD JUSTICE LAWS: I think you want to say: "Whether the actus reus of the offence of battery requires that the assailant have direct physical contact with the complainant, either through his body, such as by a punch or through a medium controlled by his actions such as by a weapon."
62. MR HEAD: Perhaps, without interrupting your Lordships, the phrase "direct physical contact". The words "application of unlawful violence" is rather ponderous, and if it were replaced by a single or perhaps two words "unlawful contact" that would (a) shorten things which is always a virtue and (b) might perhaps meet my Lord Laws LJ's points.
63. LORD JUSTICE LAWS: We both feel that the phrase "direct physical contact" ought to appear somewhere.
64. MR JUSTICE SILBER: Your suggestion, Mr Head, is whether the actus reus of the offence of battery requires direct physical contact.
65. MR HEAD: By the defendant upon the complainant.
66. LORD JUSTICE LAWS: That leave out the weapon example though, does it not?
67. MR JUSTICE SILBER: You could put in brackets "whether by his body or through a medium such as a weapon".
68. LORD JUSTICE LAWS: Then you put in the alternative as well, "or whether the actus reus is satisfied in circumstances where the unlawful force is transmitted through a medium..."
69. MR HEAD: Tying into the facts of this case.
70. MR SILBER: The facts of this case highlight the problem.
71. MR HEAD: Yes. For my part, your Lordships might feel that simply deleting the second "whether" is sufficient, because the issue was crystallised in the first part of the draft question.
72. LORD JUSTICE LAWS: I think that is right.
73. MR HEAD: We know what the facts of this case are and it is a good example of the problem.
74. LORD JUSTICE LAWS: I think that is right.
75. MR JUSTICE SILBER: I think the second part is merely an example of the problem.
76. LORD JUSTICE LAWS: It would say: "Whether the actus reus of the offence of battery requires that there be direct physical contact between defendant and complainant (whether by the body or by a medium controlled by the defendant such as a weapon)."
77. MR HEAD: Yes.
78. LORD JUSTICE LAWS: Is that it?
79. MR HEAD: Yes. I will re-draft that and lodge it.
80. LORD JUSTICE LAWS: You would ask for a certificate as to a point of importance drafted in that way and also leave.
81. MR HEAD: Yes.
82. LORD JUSTICE LAWS: Mr King, do you have anything to say?
83. MR KING: I have no comments on that.
84. LORD JUSTICE LAWS: We will certify in those terms, but refuse leave. Can you make sure that an agreed draft in the form we have now discussed is lodged with the Court.
85. MR HEAD: My Lord, if manuscript is acceptable I will do it right now, but if typescript is preferred, I will do it in an hour.
86. LORD JUSTICE LAWS: Just on a belt and brace basis, let there be a manuscript copy delivered to the associate now, but perhaps you would be good enough to send a typescript in later in the day, signed by both counsel.
87. MR HEAD: Yes.