R v D (Dhaliwal) [2006] EWCA Crim 1139

D was accused of manslaughter and inflicting grievous bodily harm after his wife, allegedly subjected to long-term domestic abuse, committed suicide. The Court of Appeal held that psychological injury without a recognisable psychiatric illness does not constitute “bodily harm” under the Offences Against the Person Act 1861, upholding the terminating ruling.

Facts

On 22 February 2005, D’s wife committed suicide by hanging herself in an outhouse at the matrimonial home. D was indicted for the manslaughter of his wife and for inflicting grievous bodily harm upon her.

After her death, evidence emerged suggesting that over a period of years she had been subjected to various forms of abuse by D, mainly psychological but including occasional physical assaults. The evidence came from:

• Mrs D’s diary, kept during the last five months of her life, recording two incidents of physical assault (one involving D spitting at her, and another of him slapping her face).
• Statements by several close relatives.
• A statement made by Mrs D in March 1999 in county court proceedings for a non-molestation order and an occupation order.
• Police records of incidents between 1994 and 2003 in which Mrs D made allegations of assault or threatening behaviour, though she declined to pursue formal complaints.
• Medical records relating to alleged assaults in 1994, 1998 and 1999.

In August 2004, Mrs D had been admitted to hospital after consuming a large quantity of alcohol and attempting to slit her wrists, citing “family problems” as the reason.

On the evening of her suicide, there was an argument between Mr and Mrs D, during which he struck her on the forehead, causing a cut from a bangle he was wearing. Expert psychiatric evidence suggested this assault was the immediate trigger precipitating her suicide, and that the:

“overwhelming primary cause” for the suicide “was the experience of being physically abused by her husband in the context of experiencing many such episodes over a very prolonged period of time”.

The trial judge, His Honour Judge Roberts QC, ruled on 7 March 2006 that there was no basis on which a reasonable jury, properly directed, could convict D of either offence and that the case should not proceed to trial. The Crown applied under section 58 of the Criminal Justice Act 2003 for leave to appeal this terminating ruling.

Issues

Primary legal issue

The Crown’s case, as recorded by Judge Roberts and adopted on appeal, depended on whether:

“psychological injury, without any recognised psychiatric illness, is capable of being ‘bodily harm'”

within sections 18, 20 and 47 of the Offences Against the Person Act 1861. The short question for the Court of Appeal was whether the psychological condition described by the experts, expressly said not to amount to a recognisable psychiatric illness, could amount to actual or grievous bodily harm under the 1861 Act.

Expert evidence

The Crown relied on expert reports from:

• Dr Roxanne Agnew-Davies (clinical psychologist, specialist in domestic violence): she concluded that Mrs D experienced domestic violence, lived in fear of physical violence, and at the time of her death was:

“experiencing psychological symptoms consequent on her protracted experience of domestic violence”

However, she was unable to make a psychiatric diagnosis. She identified possible depression and post-traumatic stress disorder, but did not believe there was sufficient evidence that these reached clinical status. She therefore concluded that the deceased had sustained:

“psychological injury”, characterised by features of depression and post-traumatic stress disorder.

• Dr Gillian Mezey (consultant psychiatrist): she concluded there was:

“sufficient evidence”

to support a diagnosis of depressive disorder and psychiatric illness.

• Dr L. P. Chesterman (consultant psychiatrist): he was unable to diagnose any:

“identifiable psychiatric illness”

but believed Mrs D’s experiences would have impacted her:

“psychological functioning”

and that the psychological impact of the final assault was likely magnified by years of such experiences.

The Crown ultimately conceded, and the case proceeded on the basis, that no reasonable jury could be satisfied beyond reasonable doubt that Mrs D suffered from any recognised psychiatric illness. Given the conflict between Dr Mezey and the other two experts, the Crown felt constrained to rely on the evidence of psychological injury without diagnosable psychiatric illness.

Judgment

Approach to causation and manslaughter

Judge Roberts had suggested that where a decision to commit suicide is triggered by a physical assault representing the culmination of a course of abuse, the Crown could argue that the final assault played a significant part in causing the victim’s death. The prosecution, however, expressly disavowed pursuing manslaughter on that causation basis, preferring to rely on a section 20 route focused on psychological harm.

The Court of Appeal recorded that, subject to evidence and argument on causation, unlawful violence on a vulnerable individual which is a material cause of death, even by suicide, could arguably amount to manslaughter. Nonetheless, that was not the case advanced by the Crown.

Psychological vs psychiatric injury under the 1861 Act

The Court examined the authorities on whether mental injury can constitute bodily harm. It noted Lord Wilberforce’s formulation in McLoughlin v O’Brian:

“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.”

The civil cases such as McLoughlin v O’Brian, Attia v British Gas, Alcock, Page v Smith and Frost were reviewed, highlighting a consistent distinction between ordinary emotional reactions (distress, grief, anxiety) and positive, recognisable psychiatric illness. Lord Bridge in McLoughlin stated:

“Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms…A plaintiff claiming damages of the kind in question must…establish that he is suffering…a positive psychiatric illness.”

In Page v Smith, Lord Lloyd said:

“There is no justification for regarding physical and psychiatric injury as different “kinds of damage”….a defendant who is under a duty of care to the plaintiff…is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness”

In Frost, Lord Griffiths observed that:

“Bereavement and grief are a part of the common condition of mankind which we will all ensure at some time in our lives. It can be an appalling experience but it is different in kind from psychiatric illness and the law has never recognised this as a head of damage.”

Lord Steyn in the same case underlined that:

“Only recognisable psychiatric harm ranks for consideration. Where the line is to be drawn is a matter for expert psychiatric evidence. This distinction serves to demonstrate how the law cannot compensate for all emotional suffering even if it is acute and truly debilitating”

Criminal authorities: Chan-Fook and Ireland; Burstow

Turning to criminal law, the Court considered R v Chan-Fook, where Hobhouse LJ concluded that:

“…the phrase ‘actual bodily harm’ is capable of including psychiatric injury, but it does not include mere emotions…nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase ‘state of mind’ is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused…”

The Court rejected the Crown’s contention that Chan-Fook did not address psychological harm. It held that the decision clearly distinguished between “states of mind” and psychiatric injury resulting from an identifiable clinical condition, expressly excluding the former from the ambit of bodily harm.

The House of Lords in R v Ireland; R v Burstow had directly considered whether psychiatric illness can amount to bodily harm. Lord Steyn identified the question:

“Can psychiatric illness amount to bodily harm?”

He emphasised that neuroses are recognisable psychiatric illnesses and that the 1861 Act is an “always speaking” statute, to be interpreted in light of modern scientific understanding of the mind-body relationship. The challenge to Chan-Fook was rejected; its reasoning was endorsed. Recognisable psychiatric injury could amount to bodily harm, but “states of mind” that are not evidence of an identifiable clinical condition could not.

Application to the present case

The Crown argued before the Court of Appeal that psychological harm diagnosed by experts should be treated equivalently to psychiatric illness, and that the 1861 Act should encompass psychological injury not amounting to a recognised psychiatric condition. It was submitted that there was no principled difference between a medically diagnosed psychological condition and a psychiatric condition brought about by psychological factors and that Ireland; Burstow did not confine liability to recognised psychiatric conditions.

The Crown also referred to statutory provisions defining “violent offences” for sentencing purposes, where “personal injury” includes physical or psychological injury. The Court, however, held that those provisions operated in a different context to the 1861 Act, which speaks of “bodily harm”. It noted that:

For the purposes of the 1861 Act, bodily harm is now known to extend to injury to the parts of the body responsible for mental faculties, provided the injury results from an identifiable clinical condition. The difficulty for the prosecution was that, unlike Dr Mezey, neither Dr Agnew-Davies nor Dr Chesterman supported a diagnosis of recognisable psychiatric illness.

Defence counsel emphasised that every psychiatric illness involves psychological damage, but not all psychological damage constitutes psychiatric illness. Reference was made to Law Commission Report No 249, Liability for Psychiatric Illness, highlighting the medical and legal difficulties in drawing the line between mental distress and psychiatric illness.

The Court concluded that Chan-Fook had drawn a clear and principled distinction between identifiable psychiatric injury and other “states of mind”, consistent with civil authority, and that this line had been endorsed by the House of Lords in both criminal and civil contexts. To extend “bodily harm” to psychological injury not amounting to a recognised psychiatric illness would blur that line, create uncertainty, and go beyond incremental common-law development.

The Court stated that adherence to the requirement of recognisable psychiatric illness provides a clear and workable test, allowing prosecutors and defendants to approach cases with appropriate certainty despite the evolving nature of psychiatric understanding.

It added, by way of illustration, that had the Crown proceeded solely on the basis of Dr Mezey’s evidence (supporting a psychiatric diagnosis), without contrary expert opinion, the case could have gone forward, subject to causation. Recognisable psychiatric illnesses, such as post-traumatic stress disorder, battered wife syndrome or reactive depression, can amount to actual or grievous bodily harm and, if causally linked to suicide, can ground manslaughter.

Implications

The Court of Appeal held that, under sections 18, 20 and 47 of the Offences Against the Person Act 1861, “bodily harm” includes psychiatric injury but does not extend to psychological injury that does not amount to a recognisable psychiatric illness. Mere psychological symptoms, emotional distress, or impaired mental functioning without an identifiable clinical condition fall outside the statutory concept of bodily harm.

The decision confirms that:

• In criminal prosecutions for offences involving bodily harm, there must be expert evidence of a recognisable psychiatric condition where no physical injury is alleged.
• Long-term psychological abuse and its non-clinical effects, however serious, cannot alone sustain a charge of inflicting actual or grievous bodily harm under the 1861 Act.
• Manslaughter remains potentially available where unlawful conduct causes a recognised psychiatric illness that leads to suicide, subject to proof of causation.

This case brings criminal law into line with civil principles on psychiatric injury, reinforces the authority of Chan-Fook and Ireland; Burstow, and clarifies that the threshold for mental harm constituting “bodily harm” is a diagnosable psychiatric illness.

Outcome

The Court agreed with Judge Roberts’ ruling, confirmed his decision that there was no case for the jury, and ordered that the respondent be acquitted.

Verdict: The Court of Appeal upheld the trial judge’s terminating ruling, holding that psychological injury without a recognisable psychiatric illness does not constitute bodily harm under the Offences Against the Person Act 1861. The prosecution’s appeal was dismissed and the respondent was to be acquitted.

Source: R v D (Dhaliwal) [2006] EWCA Crim 1139