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Grievous bodily harm by stalking

160 J.P 794: (1996) The Times, July 30

R v BurstowCourt of Appeal


THE FACTS

THE facts are taken from the judgment of the LORD CHIEF JUSTICE.

At issue was whether "inflict" necessarily required the application of physical force directly or indirectly to the body of the victim and that there could have been no argument had the charge been that harm was "caused."

"May an offence of unlawfully and maliciously inflicting grievous bodily harm contrary to S.20 of the Offences against the Person Act 1861 (the Act) be committed where no physical violence has been applied directly or indirectly to the body of the victim?"

Burstow was a petty officer serving in an RN. Shorebase. His wife was a Wren, stationed abroad. He became acquainted with Mrs Tracey Sant, a civilian employee at the base and they enjoyed a social relationship for a time.

She was determined to put an end to it. Burstow refused to accept that the relationship had come to an end. He started following her to work, turning up unexpectedly at places where she happened to be.

She made her first complaint to the police in January 1993. They warned him about his behaviour but later he was arrested for breach of the peace.

He was sentenced to various terms of imprisonment for behaviour directed against Mrs Sant, and in September 1995 he was sentenced to 12 months imprisonment for contempt of court following his obsessional pursuit of her.

Burstow's conviction was based on his conduct between February and July 1995, including telephone calls, letters and photographs, and frequent visits to her home.

It was sufficient to quote the terms of a note written by him to her, which the judge quoted when passing sentence. Their Lordships were satisfied that that note was, and was understood to be menacing. It was intended to prey on Mrs Sant's mind, as did the other elements of Burstow's conduct, and did so.

A consultant psychiatrist diagnosed that Mrs Sant was suffering from severe endogenous depression with marked features of anxiety. He regarded that as grievous harm of a psychiatric nature.

His judgment was that every contact of Burstow caused her psychiatric injury and, in his opinion, the accumulation of incidents had caused a serious depressive illness such that she feared for her life.

Both sides accepted in argument before their Lordships that the expression "grievous bodily harm" in S.20 of the Act could include psychiatric injury of the kind referred to by Mrs Sant.

Burstow's argument rested on the use of "inflict" in section 20. Had the section used the word "cause" counsel accepted that he would have no argument. But he submitted that "inflict" necessarily required the application of physical force directly or indirectly to the body of the victim.

He was able to rely on authority: R v Salisbury [1976] VR 452, 461, a passage quoted with apparent approval by Lord Roskill in R v Wilson [1984] AC 242.

Counsel also relied on the summary of the law in Smith and Hogan, Criminal Law (7th edition (1992) pp.425-426), leading to the conclusion "The position appears to be that if force is applied directly or indirectly by D, harm is 'inflicted'. If harm is caused without the use of force, it is inflicted but, if grievous, and intentionally caused, it may be the subject of an indictment under S.18". That was entirely consistent with, for instance, R v Clarence (1888) 22 QBD 23, 36.

Had the question been free from authority, their Lordships would have entertained some doubt whether the Victorian draftsman of the 1861 Act intended to embrace psychiatric injury within the expressions "grievous bodily harm" and "actual bodily harm".

If he did it was not obvious why he used the expression "bodily" in a statute concerned with offences against the person and in no way concerned with damage to reputation or economic interests. But there was clear and, in their Lordships' court, unchallenged authority that actual bodily harm was capable of including psychiatric injury: R v Mike Chan-Fook [1994] 1 WLR 689.

There could in that respect be no meaningful distinction between actual bodily harm and grievous bodily harm. Whatever the intention of the original draftsman, their Lordships' ruling was to be welcomed since it was now accepted that the distinction between physical and mental injury was by no means clear-cut and psychiatric injury might often be manifested by physical symptoms, as in the present case where Mrs Sant suffered, as a direct result of Burstow's conduct, a loss of weight.

The question posted at the outset of the judgment had, accordingly, to be answered by their Lordships on the premise that "grievous bodily harm" could include psychiatric injury. That distinguished the case from all others cited to their Lordships, which were concerned with physical violence whether direct or indirect.

It might be questioned whether in the present context great weight was to be put on the difference between the meaning of the two verbs. In R v Mandair [1995] 1 AC 208, 215 Lord Mackay had said: "In my opinion . . . the word 'cause' is wider or at least not narrower than the word 'inflict'."

The decision in R v Mike Chan-Fook was, in their Lordships' view, fatal to Burstow's submission and they accordingly agreed with the conclusion reached by the trial judge. The appeal against conviction was dismissed.

Mrs Sant was entitled to look to the court for protection. Their Lordships regarded it as important that that protection should be effective. They accordingly refused leave to appeal against sentence.

Leave to appeal to the House of Lords was refused.

THE DECISION

A "stalker" could be convicted of an offence of unlawfully and maliciously inflicting grievous bodily harm, contrary to S.20 of the Act, even where he had not applied physical violence directly or indirectly to the body of the victim.

The Court of Appeal, so held when dismissing an appeal by Burstow, against conviction after a change of plea to guilty at Crown Court after the jury had been sworn.

COMMENT

For an overview of many of the assault cases see "Intent or consequences? Assault cases under the Offences Against the Person Act 1861" Rob Jerrard The Criminal Lawyer, No.23 January 1992 p4.

In the future Stalkers will risk five years in jail under new Legislation.

Stalkers will face prison under proposals published the week this case was decided. The move is aimed at protecting thousands of women whose lives are ruined by harassment.

The plans could also help those bothered by harassment or molestation at work or by neighbours causing a nuisance. The measures are expected to be in a Bill introduced in the next session of Parliament.

David Maclean, a junior Home Office Minister, is reported to have said that the proposals amounted to a "comprehensive response" to a problem that had not been sufficiently covered by the law.

Mr Maclean said: "Stalking is a menace to society and a terrible scourge to the lives of victims. Stalkers can subject victims to constant harassment at home, at work, in public places to the extent that they can no longer go about their normal lives.

"Innocent people should not have to suffer such a terrifying ordeal. These proposals would give courts the power to punish stalkers for what they have done in the past and with the civil measures stop them from repeating their behaviour."

Victims of stalkers will in the future seek an injunction against the person responsible. Breaching the injunction would be a criminal offence, punishable by up to five years imprisonment.

The Government is also proposing a new criminal offence of "intentionally or unintentionally causing people to fear for their safety". It will be an offence whether or not the stalker intended to have this effect.

Anyone found guilty of committing the offence will face a punishment of 5 years in prison, an unlimited fine or both.

Another new offence of "causing harassment, alarm and distress, whether or not intended", will carry a maximum penalty of six months in prison, a 5,000 fine or both.

For a discussion on the new Crime Bill see "Stalking and the New Crime Bill" Philip Bean 160 JP 1043 where he discusses the use, or non-use as the case may be, of the existing law, i.e. ss.4 and 5 Public Order Act 1986 and s.154 of The Criminal Justice and Public Order Act 1994. S.154 adds s.4A to the 1986 Act.

Rob Jerrard

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