RvIreland and Burstow - 1998

page 94
University of London International Programmes
19 Extract from R v Ireland and Burstow [1998] AC 147
This material relates to the Criminal law subject guide, Chapter 9.

Criminal law Study pack page 95
R v Ireland and Burstow [1998] AC 147
Lord Steyn
Reg. v. Ireland: was there an assault?
It is now necessary to consider whether the making of silent telephone calls causing
psychiatric injury is capable of constituting an assault... The Court of Appeal, as
constituted in Reg. v. Ireland case, answered that question in the affirmative. There has
been substantial academic criticism of the conclusion and reasoning in Reg. v. Ireland:
see Archbold News, Issue 6, 12 July 1996; Archbold’s Criminal Pleading, Evidence & Practice,
Supplement No. 4 (1996), pp. 345-347; Smith and Hogan, Criminal Law, 8th ed. (1996),
413; “Assault by Telephone” by Jonathan Herring [1997] C.L.J. 11 and “Assault” [1997]
Crim.L.R. 434, 435-436. Counsel’s arguments, broadly speaking, challenged the decision
in Reg. v. Ireland on very similar lines. Having carefully considered the literature and
counsel’s arguments, I have come to the conclusion that the appeal ought to be
dismissed.
And later
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 Q.B. 439, 444d-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 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.
It is to assault in the form of an act causing the victim to fear an immediate application
of force to her that I must turn. Counsel argued that as a matter of law an assault
can never be committed by words alone and therefore it cannot be committed by
silence. The premise depends on the slenderest authority, namely, an observation by
Holroyd J. to a jury that “no words or singing are equivalent to an assault:” Rex v. Meade
and Belt (1823) 1 Lew. 184. The proposition that a gesture may amount to an assault,
but that words can never suffice, is unrealistic and indefensible. A thing said is also
a thing done. There is no reason why something said should be incapable of causing
an apprehension of immediate personal violence, e.g. a man accosting a woman in
a dark alley saying, “Come with me or I will stab you.” I would, therefore, reject the
proposition that an assault can never be committed by words.
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… And a trial judge may,
depending on the circumstances, put a common sense consideration before the 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
section 47. In these circumstances no useful purpose would be served by answering
the vague certified question in Reg. v. Ireland.

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page 94

University of London International Programmes

19 Extract from R v Ireland and Burstow [1998] AC 147

This material relates to the Criminal law subject guide, Chapter 9.

R v Ireland and Burstow [1998] AC 147

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