D, R v

For offences under the Offences Against the Person Act 1861, psychiatric injury may constitute bodily harm only if it amounts to a recognisable psychiatric illness or identifiable clinical condition. Psychological impairment which does not meet that threshold is not bodily harm, however serious its effects. The established boundary should not be extended by incremental common-law development. Subject to proof of causation, unlawful conduct causing a recognised psychiatric condition which results in suicide may nevertheless found a charge of manslaughter.

The prosecution sought to appeal a terminating ruling made at the Central Criminal Court by Judge Roberts QC. D was charged with manslaughter and inflicting grievous bodily harm after his wife died by suicide following a history of alleged domestic abuse and an assault shortly before her death.

The prosecution accepted that no reasonable jury could be sure that the deceased had a recognised psychiatric illness. It instead contended that the psychological injury identified by two experts, despite not amounting to an identifiable psychiatric condition, could be bodily harm under the Offences Against the Person Act 1861. The central issue was whether such psychological injury was capable of amounting to actual or grievous bodily harm.

1. The prosecution appeal was dismissed. The court confirmed the terminating ruling and ordered that D be acquitted. The prosecution had accepted that the evidence could not establish, to the criminal standard, that the deceased suffered from a recognised psychiatric illness.
2. For sections 18, 20 and 47 of the Offences Against the Person Act 1861, bodily harm can include psychiatric injury only where there is a recognisable psychiatric illness or identifiable clinical condition. Psychological injury which falls short of that threshold, including an impairment of mental functioning or a state of mind not evidencing such a condition, is insufficient.
3. The court followed R v Chan-Fook [1994] 99 CAR 147 and the House of Lords’ endorsement of that distinction in R v Ireland; R v Burstow [1998] AC 147. Those authorities drew a necessary line between ordinary emotional or psychological effects and clinically identifiable psychiatric injury. That line was binding on the Court of Appeal.
4. The Crown’s proposed extension would blur a well-understood legal boundary and create unacceptable uncertainty, particularly given the potential for conflicting expert evidence in a developing field. Later sentencing legislation which refers separately to physical and psychological personal injury did not alter the distinct statutory expression, bodily harm, in the 1861 Act.
5. The court added, obiter, that an unlawful assault on a psychologically vulnerable person may be capable of amounting to manslaughter if it materially causes death by suicide. That possibility depends on proof of causation. A case based on a recognised psychiatric illness, such as reactive depression or post-traumatic stress disorder, was not excluded as a matter of law.

• Court of Appeal (Criminal Division) — in [2006] EWCA Crim 1139, dismissed the prosecution appeal and confirmed the terminating ruling.
• Central Criminal Court — on 7 March 2006, Judge Roberts QC ruled that the case should not proceed to trial because no reasonable jury, properly directed, could convict D of either charged offence.