Sunday, 5 December 2010

Assault by silence

Some think this notorious UK case was a victory for common sense. Others think it's further evidence of an overly-regulated society. You be the judge.

In R v Ireland [1997] 3 WLR 534 the appellant had been convicted of three counts of assault causing actual bodily harm under the Offences against the Person Act 1861.
Lord Steyn recounted the allegations and proceedings prior to the appeal to the House of Lords (now UK Supreme Court):

The case against [the appellant] was that during a period of three months in 1994 covered by the indictment he harassed three women by making repeated telephone calls to them during which he [would] remain silent. Sometimes, he resorted to heavy breathing. The calls were mostly made at night. The case against him, which was accepted by the judge and the Court of Appeal, was that he caused his victim to suffer psychiatric illness. [The appellant] had a substantial record of making offensive telephone calls to women. The judge sentenced him to a total of three years imprisonment.

An assault can be the unlawful application of force against a person (a battery) or through the unlawful intention to create apprehension of the immediate application of force: Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439. The Court knew it was not the former, but could it be the latter?

Lord Steyn (Lords Goff, Hutton and Slynn agreed, Lord Hope penned his own judgment also agreeing),

That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be "yes, depending on the facts." It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way "I will be at your door in a minute or two" may not be guilty of an assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call or calls on the victim. Such a prosecution case under [the relevant section] may be fit to leave to the jury. And a trial judge may, depending on the circumstances, put a common sense consideration before jury, namely what, if not the possibility of imminent personal violence, was the victim terrified about? I conclude that an assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be guilty of an offence under [the relevant section].

In Australia offences under 474.17 of the Commonwealth Criminal Code would probably have been charged, avoiding the issue.


Popeye said...

... or Stalking ......

Alan said...

With all due respect to their Lordships - and yourself - I don't doubt the correctness of the judgment but it is a good decision poorly expressed.

Steyn uses the example of a person using the telephone to threaten, I'm going to be on your doorstep in a minute to beat you up. It isn't really a useful comparison since that's not what Ireland did. The judgment tends to suggest that Ireland was convicted for what he didn't do (say anything) than what he did. You might as well say, if he'd arrived on the doorstep with a shotgun and robbed the place he'd be guilty of robbery. It's true but doesn't really explain anything more.

A more useful comparison is if instead of ringing he'd turned up on the doorstep and knocked. When the home owner came to the door he says nothing but just stands there staring off into the middle distance. After trying to talk to him she closes the door and goes inside, only to hear him knocking on the door again. How many times do you think that would happen in one night before a jury is comfortable (in the absence of any other explanation being offered) that the door-knockers intention was to intimidate and distress the home owner? Not many, I suggest.

The emphasis should have been placed on what Ireland did, not what he didn't do. The fact that he repeatedly called the same women for no reason is the assault, and the fact that he said nothing when the phone was answered shows the calls were purposeless. The only remaining question then becomes whether an assault can occur when the assailant isn't physically present, and it can provided the fear of force is imminent.

Anonymouse said...

3 years in prison fur nuisance calls! Was the Magistrate Rod Crisp?