DPP v Santana-Burmudez (Admin), [2004] Crim LR 471

Key point

  • Actus reus for assault can include omission where D exposed the victim to a reasonably foreseeable risk of injury through his acts or speech, and that force does not have to be applied by D directly
  • However, note that this case not strong authority and has been doubted by commentators


  • Police officer undertook a full body search of a suspect, D
  • When asked if he had any sharp items on him, D denied it
  • Police officer subsequently injured himself on a hypodermic needle in D’s pocket, D then shrugged and smirked
  • D was acquitted of assault by the Crown Court on the basis that D had not committed a positive act and an omission did not amount to assault

Held (High Court)

  • Appeal allowed – D convicted of assault occasioning actual bodily harm
  • 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 the actus reus for assault is satisfied
  • D by giving dishonest assurance had exposed the police officer to the risk reasonably foreseeable risk of injury that materialised, and thus there was actus reus for assault