Law Weblog

An omission can amount to the actus reus of an assault. Director of Public Prosecutions v Santana-Bermudez (2003) DC

[Assault – actus reus – inactivity by D – an omission can amount to the actus reus of an assault]
D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets. V asked D if the items he removed himself was everything to which he replied ‘yes’. She then asked ‘are you sure that you do not have any needles or sharps on you’. D said ‘no’. D was stuck by a needle causing bleeding. She noticed that the defendant had a smirk on his face.
D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, the appeal was allowed.

Held: Where someone, by act or word or a combination of the two, created a danger and thereby exposed another to a reasonably foreseeable risk of injury which materialised, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. However, it remained necessary for the prosecution to prove an intention to assault or appropriate recklessness.

In the instant case, D by giving the police officer a dishonest assurance about the contents of his pockets, thereby exposed her to a reasonably foreseeable risk of injury which materialised.