• In the case of DPP v Santana Burmudez e admin 2004 crim lr 471, it was held that where a person by acts or words creates a danger and exposes another to foreseeable risk of injury, there is basis for the actus reus of an assault and this remained necessary for the prosecution to prove intention to assault or the requite recklessness.

Facts of the Case

  • The DPP appealed against a decision of the Crown Court acceding to a submission of no case to answer in respect of an appeal against a conviction by the magistrate’s court for the offence of assault occasioning actual bodily harm.
  • The alleged victim of the offence was a policy officer (H), who had approached the accused (S) as they were allegedly acting as a ticket tout at an underground station.
  • H informed S that she intended to conduct a full body search within the station supervisor’s office.
  • S emptied his pockets to reveal several syringes.
  • H askes S to pull out the lining of his jacket pockets which he did except for two small breast pockets that could not be pulled out.
  • H then asked S whether he possessed any needles or sharps and S replied that he did not.
  • H then commenced the search and out her fingers into one of the breast pockets where her finger was pierced by a hypodermic needle.
  • S removed another needle from his pocket in his trousers and smirked.
  • The crown court had concluded that the evidence did not disclose a positive act committed by S and that an omission to act did not amount to assault in law.
  • The DPP contended that S had created danger by putting the needle in his pocketed which was furthered by lying words of assurance that he had no needles or sharps on him and that as a result it was reasonably foreseeable that H would be injured.

Issues in DPP v Santana Burmudez e admin 2004 crim lr 471

  • Could S be held liable for being reckless as to the harm caused to H.

Held by Divisional Court

  • Appeal Allowed

MacKay

  • Here, it was held that when someone did by act or word or a combination, created a danger and thereby exposed another to a reasonably foreseeable risk of injury, that is evidential for the actus reus of an assault occasioning actual bodily harm although it remained necessary for the prosecution to prove an intention to assault or the appropriate risk.
  • “Miss Lawrence relies on that test so formulated, not least because of the reference to “saying or doing”. Reduced to its essentials, Miss Lawrence’s submission is that the respondent had created a danger by an act, namely putting an exposed needle into his pocket; that act was a continuing act until the injury was caused; it was compounded by a further positive act, namely the respondent’s lying words of assurance that he had no needles or sharps on him; and that, in the circumstances, it was reasonably foreseeable that PC Hill would be injured by the needle upon pursuing the search following the assurance.” [7]

Study Law in the UK

  • This field is for validation purposes and should be left unchanged.