Director of Public Prosecutions v Santa-Bermudez

Conduct consisting of an act, words, or a combination of both may provide the actus reus of assault occasioning actual bodily harm where it creates a danger, exposes another person to a reasonably foreseeable risk of injury, and that injury occurs. The prosecution must still prove the necessary mens rea, namely an intention to assault or appropriate recklessness. A defendant who creates a danger cannot avoid liability merely because the final injury results from the victim’s own conduct or from a later failure to remove the danger.

The Director of Public Prosecutions appealed by way of case stated from the Crown Court’s decision allowing an appeal against conviction and quashing a conviction for assault occasioning actual bodily harm. The respondent had concealed a hypodermic needle in a pocket, assured a police officer that he had no needles or sharps, and the officer was injured when she searched the pocket.

The Crown Court held that the respondent’s conduct involved only an omission and disclosed no positive act capable of constituting the actus reus of assault. The question for the Administrative Court was whether that conclusion was correct in law.

1. Appeal allowed. The Crown Court was wrong to conclude that there was no evidential basis for the actus reus of assault occasioning actual bodily harm. The appeal was allowed without further order.
2. The distinction between acts and omissions should not be applied in an artificially rigid manner. The authorities, including Regina v Roberts, Director of Public Prosecutions v K and Regina v Miller, supported the proposition that conduct may amount to the actus reus where a person, by act, word, or a combination of both, creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises.
3. The relevant conduct may include creating a danger and then failing to counteract it, or giving words of assurance which expose another person to the danger. It is immaterial that the immediate physical cause of the injury is the victim’s own action, provided the risk was reasonably foreseeable and the defendant’s conduct exposed the victim to it.
4. The prosecution must additionally prove an intention to assault or appropriate recklessness. On the assumed facts, the respondent’s dishonest assurance could have exposed the officer to a reasonably foreseeable risk of injury which in fact materialised. The Crown Court therefore erred in law in acceding to the submission of no case to answer.

• High Court (Administrative Court): allowed the prosecutor’s appeal by way of case stated from the Crown Court sitting at Middlesex Guildhall, which had allowed the respondent’s appeal against conviction and quashed the conviction. The matter was not remitted for rehearing.