Reconsidering psychic assault

Criminal Law Review

Volumn 1998, Issue 6, 1998, Pages 392-403

  Horder, Jeremy ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 3042909499     PISSN: 0011135X     EISSN: None     Source Type: Journal    
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References (64)

1. Violence: Reforming the Offences Against the Person Act 1861, Home Office (1998). References to this Paper will be to the paragraph number, placed in brackets in the text.
2. See Legislating the Criminal Code: Offences Against the Person and General Principles. Law Com. 218, Cm. 2370 (1993).
3. ibid. Appendix A, cl. 6. It is the government's intention to leave the definition of consent as that which currently governs at common law, pending further Law Commission research: see Violence: Reforming the Offences Against the Person Act 1861, n.1 above, para. 3.27. For further detailed discussion, see J. C. Smith, "Offences Against the Person: The Home Office Consultation Paper" [1988] Crim.L.R. 317.
4. ibid. Appendix A, cl. 6. It is the government's intention to leave the definition of consent as that which currently governs at common law, pending further Law Commission research: see Violence: Reforming the Offences Against the Person Act 1861, n.1 above, para. 3.27. For further detailed discussion, see J. C. Smith, "Offences Against the Person: The Home Office Consultation Paper" [1988] Crim.L.R. 317.
5. ibid. Appendix A, cl. 6. It is the government's intention to leave the definition of consent as that which currently governs at common law, pending further Law Commission research: see Violence: Reforming the Offences Against the Person Act 1861, n.1 above, para. 3.27. For further detailed discussion, see J. C. Smith, "Offences Against the Person: The Home Office Consultation Paper" [1988] Crim.L.R. 317.
6. For an excellent brief discussion, giving the hair-stroking example, see J. Gardner, "Rationality and the Rule of Law in Offences against the Person" (1994) 53 C.L.J. 502 at 508.
7. The root of the problem is the common failure to bear in mind that assault has its roots in civil trespass, involving the merest (threatened) physical interference. Suppose that I make as if to spray acidic vapour in your direction, so that you believe you will be caused pain following inhalation, although (unbeknownst to you) I do not actually intend to spray it. Here, I threaten you with physical interference, but clearly not by way of the use of force or the causing of an impact in the ordinary sense. I ought to be guilty of assault, and probably would be at common law, but would clearly be not guilty under cl. 4. In theory, assaults may go beyond physical interference. Suppose a doctor must give a patient methodone at a particular time of day, otherwise the patient will suffer immediate and painful withdrawal symptoms. Is the doctor guilty of assault if - at the relevant time - he makes as if to throw the methodone away, thus frightening the patient into thinking he will not get his methodone, and will suffer the pain of immediate withdrawal symptoms? For simplicity's sake, I shall assume that assault is focused on any kind of physical interference.
8. Glanville Williams, Textbook of Criminal Law (London: Sweet and Maxwell, 2nd ed., 1983), p. 173, is a proponent of the view that V must merely be made to believe that force is about to be applied to him; s/he need not experience the fear that it is. He cites no case, however, in support of this proposition. A contrary view is taken in Comyn's Digest: see text at n.12 below.
9. See further, text at n.36 below. On the distinction between cognitive and affective states, and its relevance to the criminal law, see S. Shute, "The Second Law Commission Consultation Paper on Consent (1) Something Old, Something New, Something Borrowed: Three Aspects of the Project" [1996] Crim.L.R. 684 at 686-687.
10. Williams, n.6 above, at 172.
11. [1997] 4 All E.R. 225.
12. [1997] 4 All E.R. 225 at 239, citing Archbold's Criminal Pleading, Evidence and Practice (1997), p.1594, para. 19-66. On the supposed need for apprehension of "violence", see n.6 above.
13. n.6 above, at 174.
14. See, e.g. s.8 of the Theft Act 1968, defining robbery, where a person commits the offence if he steals and immediately before or at the time of doing so, he uses force on any person, "or puts or seeks to put any person in fear of being then and there subjected to force" (my emphasis). See also the fifth edition of Comyn's Digest, 11, 275, note r: "7. And as such impression (a fear of immediate violence) can only arise where the attempt to injure is coupled with a present ability, the plaintiff must be placed within reach of the offensive means . . . 8. Thus, if the assault consists in lifting up one's fist, in a threatening manner, the plaintiff must stand within reach of a blow; if in pointing a gun at the plaintiff, he must stand within range . . . ".
15. (1674) 3 Keble 283, doubted by Williams, n.6 above, at 174 n.16.
16. (1983) 76 Cr.App.R. 234.
17. See also Lewis [1970] Crim.L.R. 647.
18. [1997] 4 All E.R. 225.
19. [1997] 4 All E.R. 225 at 236 (Lord Steyn's emphasis).
20. See text at n.11.
21. See Hudson and Taylor [1971] 2 All E.R. 244.
22. [1986] A.C. 20.
23. [1986] A.C. 20 at 62.
24. On both these points, see Smith and Hogan, Criminal Law (London: Butterworths, 8th ed., 1996), p.413.
25. This is endorsed by Smith and Hogan, who take the view that "there can be no assault if it is obvious to P that D is unable to carry out his threat, as where D shakes his fist at P who is safely locked inside his car": n.22 above.
26. I do not mean, by this claim, to underestimate the sense in which victims of "stalking" can be made to feel powerless to escape the persistent attentions of the stalker: see further, C. Wells, "Stalking: The Criminal Law Response" [1997] Crim.L.R. 463. My point is that the imminence requirement in the law of assault is not well-equipped to deal with this problem, because of its emphasis on the importance of the physical proximity of the attacker.
27. [1997] 4 All E.R. 225 at 236g-h.
28. See on this, e.g. J. W. C. Turner, "Assault at Common Law" in L. Radzinowicz and J. W. C. Turner (eds), The Modern Approach to Criminal Law (MacMillan & Co., London, 1945), pp.348-349. For a recent discussion of the interrelation of the mens rea of assault and of battery, see J. C. Smith, n.3 above, at 319-320.
29. Logdon v. DPP [1976] Crim.L.R. 121.
30. 5th ed., vol. 11 (1822), 275 note r, cited by J. W. C. Turner, n.26 above.
31. (1857) D. & B. 332.
32. Williams, n.6 above, at 175 (my emphasis). Williams' argument seems to imply that in the famous case of Tuberville v. Savage (1669) 1 Mod. 3, whether or not Tuberville assaulted Savage ought perhaps to have turned on whether laying one's hand on one's sword is an act "of a very menacing character". For detailed analysis of this case, see n.57 below.
33. I take it that by a sudden change of mind, Williams means a change of mind in favour of a sudden attack, consistent with the imminence requirement.
34. On which, see text following n.37 below.
35. The same kind of reasoning, namely that the words used merely held the threat in suspense, could be used to question whether the words spoken could have been sufficient to negate the assault constituted by P placing his hand on his sword in Tuberville v. Savage (1669) 1 Mod. 3: see below, text at n.56.
36. See, for example, the Administration of Justice Act 1970, s.40(1), which makes someone, whose object is to coerce another into paying money claimed as a debt, guilty of an offence if he "harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation." It is interesting, of course, to compare this wording with the wording of the new Protection from Harassment Act 1997; see Wells, n.24 above. For other examples, see the Public Order Act 1986, Part 1.
37. This point is brought out by Peter Alldridge when he correctly identifies crimes involving threats that are members of the same "family": see his "Threats Offences - A Case for Reform" [1994] Crim.L.R. 176 at 178-179, and he makes the distinction explicitly in his conclusion: ibid. at 183.
38. This point is brought out by Peter Alldridge when he correctly identifies crimes involving threats that are members of the same "family": see his "Threats Offences - A Case for Reform" [1994] Crim.L.R. 176 at 178-179, and he makes the distinction explicitly in his conclusion: ibid. at 183.
39. ibid. at 182-183 and 185-186.
40. ibid. at 183.
41. J. Gardner, n.4 above.
42. n.1 above.
43. n.4 above, at 505.
44. See Chan-Fook [1994] 2 All E.R. 552. I do not, of course, exclude the possibility that sustained fear of violence, as experienced (say) by women in violent relationships, may lead to recognisable psychiatric (and hence, bodily) harm.
45. It is protection from this kind of fear that the Protection from Harassment Act 1997 seeks to provide.
46. See, J. Feinberg, Offense To Others (Oxford: Oxford University Press, 1985), pp. 1-5; and, more recently, P. Roberts, "The Philosophical Foundations of Consent in Criminal Law" (1997) 17 O.J.L.S. 389.
47. See, J. Feinberg, Offense To Others (Oxford: Oxford University Press, 1985), pp. 1-5; and, more recently, P. Roberts, "The Philosophical Foundations of Consent in Criminal Law" (1997) 17 O.J.L.S. 389.
48. See, in this regard, David Dyzenhaus's criticisms of Hart and Feinberg on offensiveness and the harm principle: D. Dyzenhaus, "Liberalism, Autonomy and Neutrality" (1992) 42 U.T.L.J. 354.
49. n.6 above, at 172-173.
50. n.4 above, at 507-508.
51. See also Beach (1912) 76 J.P. 287, cited by Williams, n.6 above, at 174 n.16, where D threatened V through a locked door leading V to believe that D was about to break down the door.
52. The phrase is that of Tobriner J., in Dillon v. Legg (1968) 68 C. 2nd 728 at 740-741. Although there is no requirement in English law that the plaintiff who suffers nervous shock, as a result of an accident to another, have perceived the accident, this factor is often still significant. In McLoughlin v. O'Brien [1982] 2 All E.R. 298 at 318, Lord Bridge indicated that he would be inclined to hold nervous shock to be reasonably foreseeably suffered by a witness to a train crash who was: "a mere spectator, as, for example, an uninjured or only slightly injured passenger in the train, who took no part in the rescue operations but was present at the scene after the accident for some time . . ." (my emphasis). For an analysis of the current law, see the Law Commission Report, Liability for Psychiatric Illness, Law Com. No. 249 (1998).
53. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 at 401. This depiction of nervous shock can be usefully compared with the description of the damage done by a psychic assault in Comyn's Digest: see text at n.28 above.
54. This is a point naturally and rightly picked up by the Law Commission in their proposal to abolish any "shock" or "contemporaneous observance" restriction on the right to compensation in tort for psychiatric injury: n.48 above, at para. 6.16. It does not, however, affect the point being made in the text through the drawing of the analogy, for the obvious reason that moral distinctions relevant to principles of criminalisation may differ from those appropriate for principles of compensation.
55. See Gardner, n.4 above; also S. Shute and J. Horder, "Thieving and Deceiving: What is the Difference?" (1993) 56 M.L.R. 548. Analogously, in the law of evidence, a particular out-of-court statement made in a document may be regarded as in principle no more or less reliable than direct oral testimony to the same effect; but each piece of evidence may have to be evaluated using different criteria.
56. So, for example, the sincerity and ruthlessness of the threatener are in issue where duress per minas is concerned, as is the fact that s/he is demanding something specific, whereas these factors do not play a role, at least in this form, in necessity or duress of circumstances cases, where the agent, him or herself makes a judgment of appropriate response to a threat.
57. Or his agent. There seems no reason to distinguish, for the purposes of psychic assault, between someone who says "I am going to hit you", and someone who says "my bodyguard will hit you".
58. Although my view casts doubt on the remarks of the judge in Thomas v. NUM. about assault, cited above (see text at n.21 above).
59. See text at n.32.
60. (1669) 1 Mod. Rep. 3.
61. Happily, it is the common supposition about what the case decided that is wrong, not the decision itself. Unless one has read the case in the English Reports, or is familiar with Williams' full description of the legal background to the case (n.6 above, at 174-175), one is likely to overlook the fact that, as Williams indicates, the Court did not need to decide whether Tuberville assaulted Savage. There may very well have been an assault, if Tuberville laid his hand on his sword before uttering the words, a point fully appreciated by Williams (n.6 above) and by Smith and Hogan (n.22 above, at 415). The key issue in the case was that, given Tuberville's indication that he was not in fact going to attack Savage there and then, Savage was not justified in self-defence in putting out Tuberville's eye with a sword thrust, whether or not there was a psychic assault when Tuberville laid his hand on his sword. The case really stands for the proposition that D must believe he is about to be attacked if he is in principle to be justified in making a pre-emptive strike in self-defence.
62. n.4, above, at 508-509.
63. See n.1 above. For analysis of the new offence, see J. C. Smith, n.3 above, at 320-321.
64. See J. Horder, "Crimes of Ulterior Intent", in A. P. Simester and A. T. H. Smith, Harm and Culpability (Oxford: Clarendon Press, 1996), p. 153 at 167-170. The ulterior intent in cl. 7 of the new Bill is D's intention, in assaulting, "to resist, prevent or terminate the lawful arrest of himself or a third person" (taken from cl. 8 of the Law Commission's proposals: see n.2 above).