No: 9602137/Y3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                          Tuesday 17th December 1996

                    B E F O R E :
 
                 LORD JUSTICE EVANS

                MRS JUSTICE EBSWORTH
 
                         and
 
          THE RECORDER OF MANCHESTER
                (HHJ RHYS DAVIES)
           (Acting as a Judge of the CACD)
 
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                    R E G I N A

                       ‑ v ‑

                  GAETANO CONSTANZA
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
      Tel No: 0171 831 3183   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
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MR M HURST appeared on behalf of the Applicant
 
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                      JUDGMENT
             (As Approved by the Court)
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                   Crown Copyright 
                          Tuesday 17th December 1996
LORD JUSTICE EVANS:  The applicant, Gaetano Constanza, was convicted, on 26th March 1996, in the Luton Crown Court, after a trial before His Honour Judge Moss and a jury, of the offence of assault occasioning actual bodily harm. Subsequently, as late as 5th September 1996, he was sentenced, being made subject to a probation order for 3 years as with certain conditions attached. As Mr. Hurst has reminded us, this is the kind of case of some popular concern at the moment, known as the offence of stalking.
      The circumstances are summarised by Mr. Hurst as follows. The appellant and a Miss Louise Wilson both used to work for Vauxhall Motors in Luton, and the appellant formed a strong fascination for Miss Wilson and sought to form a relationship with her. It should be said at once that there is no suggestion that she gave him any encouragement whatsoever. Nevertheless he persisted.
      In one week in 1993 he sent her flowers on five consecutive days which, in the light of subsequent events, can be seen as a for taste of what was to come. During the period from October 1993 to June 1995, he followed her home from work; he made numerous silent telephone calls to her at home and work; he sent and  delivered 800 letters to her home; he sat in his car outside her home in the early hours; he drove past her home and circled turned on occasions; he visited her home and talked to her and her mother for long periods on the doorstep when asked not to do so. On three occasions he daubed the words "No guts. Coward" on her door in marker pen. A specific further occasion was when he delivered to her house two letters which were alleged to contain threats against her. Miss Wilson said in evidence that at that stage she feared that she might flip as a result in part of the contents of those letters.
      The application for leave to appeal against conviction is based, as Mr. Hurst candidly accepted, on consideration of the legal issues involved and the possible legal merits of an appeal, rather than the merits in any other sense.
      In R v. Ireland (14th May 1996) where the Court presided over by Swinton Thomas L.J. There was an appeal from a trial presided over by His Honour Judge Prosser QC at Newport, where the appellant had pleaded guilty to three offences of assault occasioning actual bodily harm. His conviction was challenged on grounds which are similar to those which Mr. Hurst seeks to raise in the present case. The appeal was dismissed. Mr. Hurst  accepts that he seeks by his submissions in the present case to challenge the correctness of that decision.
      The nature of the issues are these. The first requirement for a section 47 offence is that there was assault occasioning actual bodily harm, and in a case where psychiatric illness is alleged to have been caused the first question is whether psychiatric illness can amount to actual bodily harm. Mr. Hurst  accepts that it can. He does not challenge the proposition that for the purposes of a different offence under section 20 of the Offences Against the Person Act 1861 a defendant might be guilty of causing or inflicting grievous bodily harm if the psychiatric illness was sufficient to come within that category, because there, he says, the only issue is one of causation.
      As regards section 47, however, he submits that the essence of the statutory offence is that there should be an assault and he refers to the conventional common law definition of assault as being
committed "where a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence", citing amongst others R v. Savage [1992] 1 A.C. 699, at page 740.
      On that analysis, he submits that there are insuperable difficulties in bringing this case within  that definition of assault. He submits, in particular, that according to other old common law authorities, an assault cannot be committed by words alone. He submits also that an assault cannot be committed over as long a period as 19 months, as was alleged here, and that in any event for there to be an unlawful assault there must be an apprehension of immediate personal violence, in accordance with the definition already referred to.
      He has referred us to a number of academic commentators on the judgment in Ireland's case, which are, he submits, critical of it and he has raised a number of issues which he says have to be faced for the purposes of the present case.
      It seems us to that there are matters of importance which should be argued before the Court, and for that reason we are prepared to give leave to appeal, so that they may be fully ventilated.
      There is one further matter which we should add. In the present case the indictment charged the offence of assault occasioning actual bodily harm over a period from 1st November 1993 to 16th June 1995. When Mr. Hurst submitted that there was no case to answer, and raised this particular point, the learned judge ruled that there was included in the evidence the allegation that on the occasion when the two letters were delivered to  Miss Wilson's house, there was, according to the prosecution evidence, an apprehension of immediate harm, which would be sufficient to constitute an assault. The learned judge left the case to the jury on that basis. If it is the fact, as Mr. Hurst submits, that there cannot be an assault in law, spread over such a long period as 19 months, it might nevertheless be appropriate to uphold the conviction on the basis that there was proved an assault on that specific occasion, when Miss Wilson said in evidence that she flipped; thereby meaning perhaps, that on that occasion, she suffered a mental upset, which was sufficient to constitute actual bodily harm.
      But if that was an appropriate course to take, the further fact would arise whether the conviction on the charge framed as it was should properly be upheld on that narrower and rather different basis.
      By way of conclusion, we would add simply this. Mr. Hurst raises interesting points of construction and of definition. Once it is accepted, as it is, that mental illness can constitute actual bodily harm, then it is necessary to contemplate a situation where that form of harm is caused by words alone. The question may therefore be whether, just as the definition of harm has been expanded in the light of current debate and medical  knowledge, so also the concept of a relevant assault should be expanded also, notwithstanding the earlier common law definition.
      Finally, if it is the case that actual bodily harm can consist of mental illness, then that mental illness might be caused by the apprehension of physical violence. There would then be a hybrid situation in which an assault was proved, resulting in harm, but harm of a different kind from that which was feared to be imminent.
      These are merely passing references to some of the issues which Mr. Hurst has raised. It is sufficient to say, in conclusion, that they are matters which we think appropriate to be raised before the Court.
 
LORD JUSTICE EVANS:  Mr. Hurst, you have not had legal aid but you would like legal aid for today. We can grant you legal aid for counsel only for today and for the purposes of the appeal.