The Gazette 1996

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.

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

In the next issue of the Gazette the committee will be inviting submissions from members of the profession under a series of specific headings. •