DPP v Santana-Bermudez

Facts

A police officer was about to search the defendant. She asked him whether he had any needles or sharp objects on him, and he said that he had not. When she put her hand into his pocket she was pricked by a hypodermic needle and suffered injury. The defendant had not warned her of the needle.

History

The defendant was charged with assault occasioning actual bodily harm. The magistrates acquitted him, and the prosecutor appealed by way of case stated to the Divisional Court.

Issue

Whether an omission to avert a danger which the defendant has himself created can provide the conduct element of assault occasioning actual bodily harm, where the defendant is aware of the danger and has the necessary fault.

Held

The prosecution appeal was allowed. The Divisional Court held that the omission could found liability and remitted the case to the magistrates with a direction to convict.

Ratio

• Where a defendant has by his own act or statement created a dangerous situation, and is aware of it, he is under a duty to take reasonable steps to avert the danger; failure to do so can be an omission sufficient for the offence of assault occasioning actual bodily harm.
• The duty arises from the creation of the danger, and does not depend on a pre-existing legal relationship between the defendant and the person put at risk.

Key reasoning

• The court applied the approach in Miller [1983] 2 AC 161 that a person who creates a dangerous situation, and who becomes aware of it, comes under a duty to act to counteract the danger.
• The court treated the conduct as a continuing situation, in line with the reasoning in Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, so that the fault and the conduct could be brought together.
• The false assurance that nothing sharp was in the pocket, followed by failure to take any step to avert the danger, was treated as supplying the required recklessness.

Where it fits in the module

In the Non-Fatal Offences topic it is used to examine when criminal liability can rest on an omission and the line between assault, battery and the Offences against the Person Act 1861 offences. It sits alongside Miller and Fagan as part of the debate over whether the criminal law should adopt a wider general duty to act, and over the effect of a defendant misleading statement.

Criticisms

• The analysis stretches the idea of assault, which is traditionally an act causing apprehension of violence, to cover a failure to speak or act, and it is arguable that the injury was caused by the officer own search rather than any act of the defendant.
• The duty rests on a vague notion of creating a danger, and it is unclear how far that notion extends to ordinary lies or silence which expose another to risk.
• Treating the matter as a continuing act or omission is a device to bridge the gap between the conduct and the fault element, and arguably departs from the usual requirement that they coincide.