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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fook, R. v [1993] EWCA Crim 1 (22 October 1993) URL: https://www.bailii.org/ew/cases/EWCA/Crim/1993/1.html Cite as: [1994] 1 WLR 689, [1993] EWCA Crim 1, [1994] WLR 689, [1994] 2 All ER 552 |
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THE COURT OF APPEAL
CRIMINAL DIVISION
Strand London WC2 Tuesday, 19th October 1993 and |
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B e f o r e :
MR JUSTICE JUDGE
and
MR JUSTICE BELL
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R E G I N A | ||
v | ||
MIKE ![]() |
____________________
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
MR B.BARKER and MR R.OVERBURY appeared on behalf of the Crown
Tuesday, 19th October 1993 and
Friday, 22nd October, 1993
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Crown Copyright ©
Friday, 22nd October 1993
JUDGMENT
LORD JUSTICE HOBHOUSE: On 24th February 1992 after a trial at the Crown Court at Southwark before His Honour Judge Bernard Charles QC and a Jury this Appellant, Mike Chan Fook, was convicted on a single count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. He was ordered to pay £250 compensation and £1,000 costs. The particulars of the offence were that on 30th May 1991 he "assaulted Sidney Martins thereby occasioning him actual bodily harm". (No point was taken on the drafting of these particulars.) The question raised by this Appeal is whether the Jury were correctly directed upon the meaning of the words "actual bodily harm".
If you are satisfied that he committed an assault, then you have to consider whether it was an assault, as the indictment says, occasioning him actual bodily harm, in other words, causing Mr Martins actual bodily harm. What is meant by 'actual bodily harm'? It does not have to be permanent. It does not have to be serious. It is some actual harm which interferes with the comfort of the individual for the time being, described as any hurt or injury calculated to interfere with the health or comfort of Mr Martins, in this case. An assault that causes a hysterical or nervous condition is capable of being an assault causing actual bodily harm.
They [the Crown] have to prove that the harm some actual bodily harm was sustained and was the result of the assault. What the Crown says the result of the assault was, firstly, his bruising to his head or face; and a bruise that is temporary, interferes with one's comfort, does it not; on a temporary basis. It was sore, it was tender, you do not have it beforehand. One would be able to say 'I have been harmed as a result', 'on my body I have a bruise which I did not have before'. Not the most serious thing naturally. Equally the Crown says that his mental state which caused him to lock the door and take that extreme action of climbing out of the window, tying the sheets together indicates that he was in a nervous, maybe hysterical condition. It is a matter for you to Judge what his condition was. That in itself is capable of amounting to actual bodily harm. Why did he go out of the window at all?
You have to be satisfied, before you can convict, that some actual bodily harm was sustained by Mr Martins which was caused by the assault. So it has to be a direct consequence, and what the Crown puts in front of you and invites you to consider is the bruising to the face, and the mental state of Mr Martins when he let us break the sequence, put his foot onto the windowsill in order to descend down the sheet, not when he hit the ground, having tried to descend down the sheet. So members of the Jury, that, in a nutshell, is what this case is about.
He [the defendant] was asked if he could think of any reason why Mr Martins should leave his room via the window, lock himself in his room and leave all his property behind him, and he couldn't. The Crown says that the reason for acting in that way was, he was hysterical, he was frightened. He was in such a state that he took extreme emergency action. It is for you to decide which is right. "
"You you must be satisfied that the prisoner had an intent to do grievous bodily harm. It is not necessary that such harm should have been actually done, or that it should be either permanent or dangerous, if it be such as seriously to interfere with comfort or health, it is sufficient."
"My Lords I confess that whether one is considering the crime of murder or the statutory offence I can find no warrant for giving the words 'grievous bodily harm' a meaning other than that which the words convey in their ordinary natural meaning. 'Bodily harm' needs no explanation, and 'grievous' means no more and no less than 'really serious'. In this connection your Lordships will refer to the judgment of the Supreme Court of Victoria in the case of R.v.Miller [1951] VLR 346, 357). In giving the judgment of the Court, Martin J, having expressed the view that the directions of Willes J could only be justified, if at all, in the case of the statutory offence said: '....there does not appear to be any justification for treating the expression 'grievous bodily harm' or the other similar expressions used in the authorities upon this common law question which are cited as bearing any other than their ordinary and natural meaning.' In my opinion the view of the law thus expressed by Martin J is correct and I would only add that I can see no ground for giving the words a wider meaning when considering the statutory offence."
"It is a misdirection to adopt the old formula and invite a Jury to find a man accused of wounding with intent to do grievous bodily harm guilty if the only intent established is one to interfere seriously with the health or comfort. Reading the speech of the Lord Chancellor as a whole it seems to follow that, certainly as applied to this case, the adoption of the old formula is one which amounts to a misdirection."
In certain cases an explanation may be required of what is involved in the word "bodily". The sentence we have quoted from Archbold and the direction which the trial judge gave in the present case derived from what was said by Lynskey J in R.v. Miller [1954] 2 QB 282 and 38 Cr.App.R.1. That was a case where the defendant was charged on an indictment containing two counts. The first alleged rape and the second alleged assault occasioning actual bodily harm. Both counts related to the same incident. The alleged victim was the defendant's wife to whom he was still legally married although they had separated and she was petitioning for divorce. At the commencement of the trial the defence moved to quash the indictment. The rape count was quashed on the basis that a husband could not in law rape his wife. (See now R.v. R [1992] 1 AC 599.) Mr Justice Lynskey declined to quash the other count. The report at [1954] 2 QB 285 shows that there was evidence that the wife had suffered acute mental and emotional distress which persisted over more than one day as a result of the assaults upon her; it was said that that was capable of amounting to a hurt or injury calculated to interfere with her health and comfort. At pages 292 and 10 of the respective reports Lynskey J said:
"The point has been taken that there is no evidence of bodily harm. The bodily harm alleged is said to be the result of the prisoner's action, that is, if the jury accept the evidence that he threw the wife down three times. There is evidence that afterwards she was in a hysterical and nervous condition, but it is said by counsel that that is not actual bodily harm. Actual bodily harm, according to Archbold 32nd Edition page 959 includes 'any hurt or injury calculated to interfere with the health or comfort of the prosecutor'. There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that if a person is caused hurt or injury resulting, not in any physical injury but in an injury to her state of mind for the time being, that is within the definition of actual bodily harm, and on that point I would leave the case to the jury."
The first question on the present appeal is whether the inclusion of the word "bodily" is the phrase "actual bodily harm" limits harm to harm to the skin, flesh and bones of the victim. Mr Justice Lynskey rejected this submission. In our judgment he was right to do so. The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties. The matter was well summarised by Lord Wilberforce in McLoughlin v. O.Brian [1983] 1 AC 410 at 418:
"Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact."
As is pointed out by Lord Wilberforce earlier in his speech the conventional phrase "nervous shock" is now inaccurate and inappropriate. Observations to the like effect are to be found in Attia v. British Gas [1988] 1 QB 304 and Alcock v. The Chief Constable of South Yorkshire [1992] 1 AC 310. In the case of Attia, the Court of Appeal discussed where the borderline should be drawn between on the one hand the emotions of distress and grief and on the other hand some actual psychiatric illness such as anxiety neurosis or a reactive depression. The authorities recognised that there is a line to be drawn and whether any given case falls on one side or the other is a matter for expert evidence. The civil cases are also concerned with a broader question of the boundaries of the law of negligence and the duty of care, which do not concern us.
It is also relevant to have in mind the relationship between the offence of aggravated assault comprised in section 47 and simple assault. The latter can include conduct which causes the victim to apprehend immediate and unlawful violence. (Fagan v. Metropolitan Police [1969] 1 QB 439.) To treat the victim's fear of such unlawful violence, without more, as amounting to actual bodily harm would be to risk rendering the definition of the aggravated offence academic in many cases.