No.

96/1851/W4

IN THE COURT OF APPEAL

CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Monday 29 July 1996

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill)

MR JUSTICE OWEN

and

MR JUSTICE CONNELL

__________________

REGINA

-v-

ANTHONY CHRISTOPHER BURSTOW

__________________

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4
Telephone 0171-831 3183
(Official Shorthand Writers to the Court)
__________________

MR PETER FEINBERG QC and MR ANDREW TURTON appeared on behalf of

THE APPLICANT

MR PAUL REID and MR SINCLAIR CRAMSIE appeared on behalf of THE CROWN

____________________

JUDGMENT
(As Approved by the Court)
____________________

CROWN COPYRIGHT
Monday 29 July 1996

THE LORD CHIEF JUSTICE: At the heart of this application lies a short but difficult question of

law: May an offence of unlawfully and maliciously inflicting grievous bodily harm contrary to

section 20 of the Offences against the Person Act 1861 be committed where no physical violence has

been applied directly or indirectly to the body of the victim? After hearing detailed argument, His

Honour Judge Lait, sitting in the Crown Court at Reading, answered this question in the affirmative.

The defendant thereupon changed his plea to one of guilty. He now seeks leave to appeal to this

Court, contending that the judge's ruling was wrong in law. The application has been referred to the

full Court.

In about April 1992, the applicant was a Petty Officer serving in HMS Collingwood at

Fareham in Hampshire. His wife was a Wren, stationed abroad. The applicant became acquainted

with

Mrs Tracey Sant, a civilian employee at the base, and they enjoyed a social relationship for a time.

There came a time when Mrs Sant felt the relationship had gone far enough, and she was determined to

put an end to it. Unfortunately, the applicant 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.

In January 1993, she made her first complaint to the police about his behaviour. They

warned the applicant about it, but later on in the same month he was arrested for breach of the peace.

That led to his appearance in the Gosport Magistrates' Court, which bound him over for two years to be

of good behaviour and keep the peace. In February 1993, he was brought back before the Court for

breach of the bind-over, but the case did not proceed since Mrs Sant was unwilling to give evidence.

In July 1993, he appeared before the Portsmouth Magistrates' Court for breach of his
bind-over, and in August 1993, he pleaded guilty to an offence under the Offences against the Person

Act 1861. He was conditionally discharged. He continued to persecute Mrs Sant. On 17 September

1993, he was sentenced to a term of imprisonment for pouring solvent on Mrs Sant's car, and he was

also sentenced for a series of offences involving the making of malicious communications to Mrs Sant

and the persistent making of nuisance telephone calls. On 27 April 1994, he was sentenced

to 18 months' imprisonment for burglary, and on 20 February 1995 to three terms of 12 months'

imprisonment concurrent on a further three counts of burglary. All this conduct was directed at Mrs

Sant. When sentence was passed on 20 February 1995, the applicant was immediately released,

because of time that he had spent in custody before sentence. But his obsessional pursuit of Mrs Sant

continued. He wrote her letters; he made telephone calls; he made visits; he distributed insulting

cards. This conduct was in breach of an injunction made by or undertaking given to the County Court,

and on 29 September 1995 he was sentenced to 12 months' imprisonment for contempt.

The applicant's conviction was based on his conduct between February and July 1995,

including the telephone calls, letters and photographs already mentioned and frequent visits to Mrs

Sant's home. It is unnecessary to recount the details. It is enough to quote the terms of one note

written by the applicant to Mrs Sant which the judge quoted when passing sentence on the applicant.

It read:

"Dearest Tracey,

Do you covet the stable life of your peers? Is there a desire for
normality to return at the tender age of 27.5 years, to re-discover your
self-esteem and finally put to rest those recent traumas in life? Do you
long for that new era when you can:

(a) wake up in the morning and smile at the day it brings, be it work or
rest, weekday or weekend, and not be concerned about the motives and
plans of another.

(b) sit at the breakfast table and discuss what lies ahead without fretting
over the contents of the postbox or agonizing over possible untoward
news from your father's short walk for the daily paper.

(c) leave the house and, along with your family, not have to check the
 immediate vicinity, the road and passing traffic.

(d) drive the car without suspicion of other vehicles ahead or behind you
and be able to park and leave the car without fear of what may be there
on your return.

(e) be at home, either alone albeit with Bertie and Co or in the company
of others and not be fearful for your safety and without apprehension
answer the telephone; to take one or both dogs for a walk unconcerned
at whom you meet.

(f) spend lunch and other hours shopping, browsing through town centre
or village High Street untroubled at who is around or without the feeling
of dread that someone may be watching or waiting.

(g) return home to discuss how ordinary and normal life has been, not to
just feel that you have survived another trip of another day yet unsure of
what or whom may await you on the next journey outside the safe haven
of the family home.

If this is a true picture of your preference for the future you must
exercise complete control and totally ignore the influence of another in
and on your life. But if as it appears you leave home on each and every
occasion with a frown/scowl, almost semi-permanently etched into the
face, your right eye-lid screwed tight, wearily watching humanity
around you unable to return home without one final glance from the
porch to check for someone, then that someone still holds a significant
degree of influence (control) over you and your life!

Tracey, one final point: please remember this is totally personal and
nothing will change how much I hate you -- a comforting thought, is it
not!"

The Court is satisfied that this note was, and was understood to be, menacing. It was

intended to prey on Mrs Sant's mind, as did the other elements of the applicant's conduct, and did so.

There was clear evidence to this effect. Before the trial court was a report by a consultant

psychiatrist who had first interviewed Mrs Sant in September 1994 and who had reviewed her mental

state through the Autumn of 1994 and the Winter of 1994-1995. He interviewed her again in August

1995. He found her:

".... extremely distressed and tearful, reporting a depressed mood and

very poor sleep. She had lost weight. She had panic attacks at night.
 I asked her about her content of thought. She told me that she was
continually frightened -- that BURSTOW had contacted her by post and
telephone -- saying that he hated her and calling her a 'lying slut', 'stupid
bitch' and a 'prostitute'. He had left condoms in her parents' garden and
distributed them in the garden of neighbours of her parents. He had
threatened personal violence and attack on Tracey. She became
extremely distressed describing this to me. She was beginning to lose
hope for the future and at times felt that her life was not worth living. I
made the diagnosis of severe depressive illness with noticeable
deterioration since I last interviewed her on 8 February 1995."

The consultant diagnosed that Mrs Sant was suffering from severe endogenous depression

with marked features of anxiety. He regarded this as grievous harm of a psychiatric nature. His

judgment was that every contact of the applicant direct or indirect by any means with Mrs Sant caused

her psychiatric injury and in his opinion the accumulation of incidents had caused a serious depressive

illness such that Mrs Sant feared for her life at the hands of the applicant.

II

It was accepted by both sides in argument before the Court that the expression "grievous

bodily harm" in section 20 could include psychiatric injury of the kind suffered by Mrs Sant. The

argument for the applicant rested on use of the word "inflict" in section 20. Had the section used the

word "cause" counsel accepted that he would have no argument. But he submitted that the term

"inflict" necessarily required the application of physical force directly or indirectly to the body of the

victim.

In support of his submission counsel was able to rely on authority. He relied in particular

on a decision of the full Court of the Supreme Court of Victoria, R v Salisbury [1976] VR 452. In that

case the Court construed a section equivalent to section 20 of the 1861 Act and reviewed the leading

English authorities. At page 461, the Court said:

"In our opinion, grievous bodily harm may be inflicted, contrary to

 s.19A, either where the accused has directly and violently 'inflicted' it
by assaulting the victim, or where the accused has 'inflicted' it by doing
something intentionally, which, though it is not itself a direct application
of force to the body of the victim, does directly result in force being
applied violently to the body of the victim, so that he suffers grievous
bodily harm...."

This passage was quoted with apparent approval by Lord Roskill in R v Wilson [1984] AC 242, in a

speech with which all their Lordships agreed. Counsel also relied on the summary of the law in Smith

and Hogan, Criminal Law, 7th edition (1992), at pages 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
not inflicted, but, if grievous, and intentionally caused, it may be the
subject of an indictment under s.18."

This, counsel submitted, was an accurate statement of the law. It was entirely consistent with earlier

judicial observations, such as that of Wills J in R v Clarence (1888) 22 QBD 23 at 36:

"But I think the section clearly points to the infliction of direct and
intentional violence, whether with a weapon, or the fist, or the foot, or
any other part of the person, or in any other way not involving the use of
a weapon, as, for instance, by creating a panic at a theatre whereby
people trampled upon one another: Reg v Martin (1881) 8 QBD 54."

III

Were the question free from authority, we should entertain 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 is 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 is clear and (in this Court) unchallenged

authority that actual bodily harm is capable of including psychiatric injury: R v Mike Chan-Fook
(1994) 99 Cr App R 147. There can in this respect be no meaningful distinction between actual bodily

harm and grievous bodily harm. Whatever the intention of the original draftsman, this ruling is to be

welcomed since it is now accepted that the distinction between physical and mental injury is by no

means clear-cut, and psychiatric injury may often be manifested by physical symptoms, as in the

present case where Mrs Sant suffered, as a direct result of the applicant's conduct, a loss of weight.

The question posed at the outset of this judgment must accordingly be answered by this Court on the

premise that "grievous bodily harm" can include psychiatric injury. This distinguishes the case from

all others cited to us, which were concerned with physical violence whether direct or indirect.

Counsel for the applicant would, as we understand, accept that if the applicant had caused

the harm actually caused to Mrs Sant with intent to cause such harm, he would be guilty of an offence

under section 18 of the 1861 Act. His argument that the applicant is not guilty of an offence depends

on the fact that section 20 uses the verb "inflict" in contrast with the use of the verb "cause" in section

18. This puts great weight on the difference between the meaning of the two verbs. It may be

questioned whether in this context this is justified. In R v Mandair [1995] 1 AC 208 at 215 Lord

Mackay of Clashfern LC said:

"In my opinion, as I have said, the word 'cause' is wider or at least not
narrower than the word 'inflict'."

This observation, with which a majority of the House agreed, would not suggest any radical divergence

between the meaning of the two words. The word "inflict" may primarily suggest a corporal blow, but

accepted dictionary definitions include such meanings as "impose" or "cause to be borne". It is not

straining language to speak of one person inflicting psychiatric injury on another. It would in our

judgment be an affront to commonsense to distinguish between section 18 and section 20 in the way

contended for by the applicant. It would also, we think, introduce extreme and undesirable artificiality

into what should be a very practical area of the law if we were to hold that, although grievous bodily

harm includes psychiatric injury, no offence against section 20 is committed unless such psychiatric
injury is the result of physical violence applied directly or indirectly to the body of the victim. The

decision in R v Mike Chan-Fook is in our view fatal to the applicant's submission. We accordingly

agree with the conclusion reached by the trial judge.

Since the point argued for the applicant is one of obvious significance, we grant him leave

to appeal against conviction. For reasons already given, however, we dismiss his appeal.

The applicant also applied for leave to appeal against the sentence of 3 years' imprisonment

imposed by the judge. In imposing that sentence the judge made a deduction of 6 months to reflect

the period which the applicant had spent in custody under the sentence for contempt imposed for the

same conduct giving rise to this conviction. That was in our judgment a proper course for the judge to

adopt.

The real question for decision in relation to sentence is whether the sentence of 3 years is

excessive given the sustained campaign of persecution waged by the applicant against Mrs Sant and its

effect upon her. Were this the applicant's first conviction, we should certainly regard the sentence as

excessive. But he has already served prison sentences of 2 months, 18 months and 12 months. These

sentences do not appear to have had any significant deterrent effect. Mrs Sant is entitled to look to the

Court for protection. We regard it as important that that protection should be effective. We do not

think the sentence of 3 years was in any way excessive in all the circumstances, and accordingly refuse

leave to appeal against sentence.

The following question was certified as a point of general public importance fit for the consideration of
the House of Lords:

"May an offence of inflicting grievous bodily harm under section 20 of

the Offences against the Person Act 1861 be committed where no
physical violence is applied directly or indirectly to the body of the
victim?"

The Court declined to give leave to appeal to the House of Lords, but granted legal aid for Mr Feinberg
QC and Mr Turton to apply to their Lordships' House for leave.
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