Abstract
We live in a world in which we are urged to #bekind and where there has never been greater awareness of the impact of cruel behaviour on an individual's mental wellbeing. As such, it seems unfathomable that the criminal law only concerns itself with damage to a person's state of mind if it falls into a narrow, arbitrary and artificial clinically-defined category. This article argues that this restrictive interpretation of preceding authorities in Dhaliwal was wrong and a more expansive approach would strengthen the law and create much-needed parity between physical and non-physical harm.
Gurjit Dhaliwal hanged herself in an outhouse behind the family home after an argument with her husband. Her diary documented years of abuse, mostly emotional but with some episodes of physical violence. Her mistreatment at the hands of her husband was substantiated by medical reports, police reports, court papers filed in relation to an application for an occupation order and a non-molestation order and statements of her close relatives. She had previously attempted to take her own life, citing "family problems" as the reason to the doctors who treated her. Following her suicide, her husband was charged with inflicting grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 and manslaughter. The trial judge described the case as one in which "a decision to commit suicide had been triggered by a physical assault which represents the culmination of a course of abusive conduct". 1 Despite this finding, he ruled that the case should not proceed to trial as no reasonable jury, properly directed on the law, could convict the defendant of either offence as the symptoms suffered by the victim prior to her suicide did not amount to a recognised psychiatric illness. This decision was upheld by the Court of Appeal. In the same year, the Divisional Court ruled that a defendant who cut off his girlfriend's ponytail without her consent could be liable for assault occasioning actual bodily harm contrary to s.47 of the Offences against the Person Act 1861 on the basis that "hair is an attribute and part of the human body". 2 Side-by-side, these cases offer a powerful illustration of the differential protection afforded by non-fatal offences to victims of physical and non-physical harm. *Crim. L.R. 359
This article argues that the disparity created by the interpretation of the law favoured by the Court of Appeal in Dhaliwal is unacceptable and that the issue needs to be revisited to establish a clear and workable basis upon which to impose criminal liability on those who cause non-physical harm to others provided it goes beyond transient emotional upheaval. Central to this is the need for a move away from the primacy given to recognised psychiatric injury which makes diagnosis the determinative factor in the evidence of an expert medical witness and creates the potential for a misleading appearance of dissent between medical experts who agree on the victim's symptoms but cannot agree on diagnosis. A refocus on harm as the central component of liability for non-fatal offences would avoid this problem and is entirely consistent with the pre-Dhaliwal authorities, which, if read correctly, leave the door open for a more expansive approach to the imposition of criminal liability for non-physical harm.