375 / 448
person is caused hurt or injury
resulting, not in physical injury but in
an injury to the state of mind for the
time being, this is within the
definition of 'actual bodily harm'."
Senior counsel Peter Charleton, in his
book
Offences against the person
(1992), considered that this ruling was
incorrect. He noted that the section
restricts its application to "bodily harm".
In the absence of physical injury, he
submitted that nervousness or hysteria
was not bodily harm. He noted that the
presence of those symptoms may,
however, be evidence of bodily suffering
within the definition of the crime.
A person who sends a menacing or
false message by telephone or
persistently makes use of the
telephone for the purpose of
causing annoyance, inconvenience
or needless anxiety to another; may
be liable to a term of imprisonment
and a substantialfine
In
R v Ireland, (The Times,
22 May,
1996) the Court of Appeal (England and
Wales) held that a telephone call or a
series of telephone calls, followed by
silence, could constitute an assault caus-
ing actual bodily harm. Robert Matthew
Ireland had been convicted following
pleas of guilty in the crown court to three
counts of assault occasioning actual
bodily harm contrary to section 47 of the
Offences Against the Person Act, 1861
(the same legislation as in this juris-
diction). He was sentenced to a total of
three years' imprisonment. The accused
had made a large number of unwanted
telephone calls to three women. When the
women answered the telephone, there
was silence. On occasion, there were
repeated telephone calls over a relatively
short period. The women were examined
by a psychiatrist who gave evidence that
the result of the repeated telephone calls
was that each of them suffered significant
psychological symptoms which included
palpitations, difficulty in breathing, cold
sweats, anxiety, inability to sleep,
dizziness and stress.
Swinton LJ, delivering the judgment of
the court, held that an assault was any
act by which a person intentionally or
360
recklessly caused another to apprehend
immediate and unlawful violence. In
R v
Chan-Fook
[1994] 1 WLR 689, it was
held that "actual bodily harm" was
capable of including psychiatric injury
but not mere emotion such as fear,
distress or panic. The Court of Appeal in
Ireland
considered that if the prosecution
could prove that the victims had
sustained actual bodily harm (in this
case, psychological harm), and that the
accused must have intended the victims
to sustain such harm or have been
reckless as to whether they did sustain
such harm, and that harm resulted from
the telephone calls followed by silence,
it was open to the jury to find that the
person had committed an assault.
In relation to the concept of immediacy,
the court considered that by using the
telephone the accused put himself in
immediate contact with the victims and
when the victims lifted the telephone
they were placed in immediate fear and
suffered the consequences to which
reference had been made.
The Supreme Court of New South
Wales, in
Barton v Armstrong
[1969] 2
NSWR 451, a civil action based in part
on the allegation of assault alleged to
have been committed by telephone, held
that a threat made over the telephone
was capable of amounting to an assault.
In
Ireland's
case there were no threats
but merely silence. The Court of Appeal
considered that such telephone calls
followed by silence were just as capable
of being terrifying to the victims as if
physical threats had been made. In
conclusion, the Court of Appeal consid-
ered that the making of a telephone call
or a series of calls followed by silence
was capable of amounting to a relevant
act for the purposes of section 47 of the
Offences Against the Person Act, 1861.
The "act" consisted in the making of the
telephone call and it did not matter
whether words or silence ensued.
It was accepted in
Ireland
that in most
cases an assault was likely to involve
direct physical violence to the body. The
fact that the violence was inflicted
indirectly, causing psychological harm,
did not render the act to be any less an
act of violence. Nor in the opinion of the
Court of Appeal was it necessary that
there should be an immediate proximity
between the defendant and victim.
Repetitous telephone calls of that nature
were likely to cause a victim to appre-
hend immediate and unlawful violence.
With the penalties on indictment of up to
five years' imprisonment and a fine of
£50,000, a criminal prosecution based on
the facts of
Ireland
above would, in this
jurisdiction, probably be based on
section 13 of the
Post Office Amendment
Act, 1951
as amended by the
Postal and
Telecommunications Serx'ices Act, 1983.
The ingredients of causing "annoyance
or needless anxiety to another" are less
difficult to prove than that of an assault
occasioning actual bodily harm pursuant
to section 47 of the
Offences Against the
Person Act, 1861.
•
* Dr Eamonn Hall is the Company
Solicitor in Telecom Eireann.
Future of the
Profession Committee
"A
Future of the Profession Committee
should be established to produce a report
within one year identifying and assessing
the factors likely to produce changes in the
profession and in the environment in which
the profession operates within the next ten
years and beyond." (Recommendation No
46 in the Report of the Law Society Review
Working Group adopted at the Special
General Meeting on 7 March 1996).
The President, Frank Daly, has established a
Future of the Profession Committee under the
chairmanship of Michael Irvine, Council
member. The other members are: Walter
Beatty Jnr; Eugene McCague; Patricia
McNamara; Paul O'Connor, Dean of Law,
UCD; Harry Sexton; and Ken Murphy,
Director General.
It is intended that the committee will co-opt
other-members, as necessary.
The report, which will be circulated to the
membership, should set out the profession's
future strengths, weaknesses, opportunities
and threats. Among the chief concerns of the
committee should be to estimate the likely
level of demand by the public for legal
services and the new areas of service to the
public which might be developed for the
profession. The report should also indicate the
steps which should be taken in the short and
medium-term to maximise the profession's
position in the long term.
In the next issue of the
Gazette
the
committee will be inviting submissions
from members of the profession under a
series of specific headings.
•