Regina v. Burstow; Regina v. Ireland

The House of Lords held that 'bodily harm' in sections 18, 20 and 47 of the Offences against the Person Act 1861 can include recognisable psychiatric illness. The court endorsed the reasoning in Reg. v. Chan-Fook [1994] 1 WLR 689 and applied an "always speaking" approach to statutory construction so that Victorian wording is read in the light of contemporary medical knowledge.

The court further held that the word 'inflict' in section 20 can include the infliction of psychiatric injury and need not be limited to cases involving direct physical application of force; accordingly conduct causing psychiatric injury can amount to grievous bodily harm under section 20. Finally, the court rejected an absolute rule that words or silence can never constitute an assault, concluding that repeated menacing telephone calls (including silent calls) may, depending on the facts, cause a victim to apprehend immediate and unlawful personal violence and thus may amount to an assault for the purposes of section 47.

This is a joint appellate judgment addressing two related criminal appeals concerned with psychiatric injury caused by campaigns of harassment and by repeated silent telephone calls. Both appellants faced convictions under the Offences against the Person Act 1861: Burstow was convicted (after changing his plea) of unlawfully and maliciously inflicting grievous bodily harm contrary to section 20; Ireland pleaded guilty to three counts of assault occasioning actual bodily harm contrary to section 47. The Court of Appeal in each case had relied upon Reg. v. Chan-Fook [1994] 1 WLR 689 in holding that psychiatric injury can amount to bodily harm, and certified questions of general importance about whether psychiatric injury can be bodily harm and whether silent telephone calls can amount to an assault.

The House considered three core issues:

• Whether psychiatric illness can constitute 'bodily harm' under sections 18, 20 and 47 of the 1861 Act;
• Whether the word 'inflict' in section 20 requires direct physical application of force (or differs materially from 'cause');
• Whether a series of silent telephone calls can ever amount to an assault under section 47.

The reasoning was that modern psychiatric illnesses (neurotic disorders such as anxiety and depressive illnesses) are recognisable clinical conditions affecting the central nervous system and therefore fall within the concept of bodily harm. The court endorsed Chan-Fook's approach that identifiable clinical psychiatric conditions may be "actual bodily harm" and rejected arguments that Victorian legislative language precludes that meaning. On the meaning of 'inflict', the court concluded that in the context of the 1861 Act there is no practical distinction preventing the word from encompassing psychiatric injury and that previous authority to the contrary (notably Reg. v. Clarence) did not remain persuasive in this context. On assault, the court rejected any absolute rule that words or silence can never constitute an assault: whether silent telephone calls amount to an act causing apprehension of immediate unlawful violence is a factual question for the jury. The House dismissed both appeals.

Both appeals were dismissed. The House held (i) that 'bodily harm' in sections 18, 20 and 47 of the Offences against the Person Act 1861 can include recognisable psychiatric illness; (ii) that 'inflict' in section 20 can cover psychiatric injury and does not require direct physical application of force; and (iii) that silence or words delivered by telephone may, depending on the facts and impact on the victim, amount to an assault under section 47 because they can cause apprehension of immediate and unlawful personal violence.

Both matters came to the House of Lords from the Court of Appeal. In Reg. v. Ireland the Court of Appeal decision is reported at [1997] Q.B. 114 (appeal dismissed); in Reg. v. Burstow the Court of Appeal decision is reported at [1997] 1 Cr.App.R. 144 (appeal dismissed). The Court of Appeal had relied on Reg. v. Chan-Fook [1994] 1 WLR 689. Both cases raised certified points of general public importance which were determined by the House of Lords.