All England Law Reports/2010/Volume 3 /R v Curtis – [2010] 3 All ER 849

 

[2010] 3 All ER 849

 

R v Curtis

 

[2010] EWCA Crim 123

 

 

COURT OF APPEAL, CRIMINAL DIVISION

 

PILL LJ, BENNETT and FIELD JJ

 

 

13 JANUARY, 9 FEBRUARY 2010

 

Criminal law – Harassment – Prohibition of harassment – Putting people in fear of violence – Course of conduct amounting to harassment – Ingredients of offence – Protection from Harassment Act 1997, ss 1, 4.

 

Section 1(1)a  of the Protection from Harassment Act 1997 provided: ‘A person must not pursue a course of conduct–(a) which amounts to harassment of another, and (b) that he knows or ought to know amounts to harassment of the other’. A person who pursued a course of conduct in breach of s 1(1) was guilty of an offence. Under s 4(1)b  a person whose course of conduct caused another to fear, on at least two occasions, that violence would be used against him was guilty of an offence if knew or ought to have known that his course of conduct would cause the other so to fear on each of those occasions. For the purposes of s 4, the person whose course of conduct was in question ought to have known that it would cause another to fear that violence would be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion. C was prosecuted under s 4; the prosecution was based on six incidents which occurred while he and the complainant, B, were living together. At trial the prosecution argued that C’s actions had amounted to a course of conduct because there was a nexus or connection between each incident, namely that on each occasion B had stood up to C and he had then used or threatened violence against her. The defence argued that there had been no such nexus or connection and no course of conduct on the part of C; the defence said that there had been a few sporadic incidents in the course of a volatile relationship in which neither C nor B had behaved in an exemplary manner. The jury were directed as to ‘nexus or connection’ or ‘no more than sporadic incidents’ but they were not directed that it was necessary for the prosecution to establish that the course of conduct amounted to harassment. C was convicted. He appealed.

 

Held – The ‘course of conduct’ identified in s 4(1) of the 1997 Act was a course of conduct which amounted to harassment of another. Assessment of a defendant’s conduct for the purposes of s 1 of the 1997 Act involved consideration of whether the conduct could be described as a course of conduct but that course of conduct had to be conduct amounting to harassment, which was conduct targeted at an individual which was calculated to alarm the person or cause the person distress and which was oppressive and unreasonable. The conduct had to be unacceptable to a degree which would sustain criminal liability and also had to be oppressive. The two limbs were inter-related in that an analysis of the course of conduct, including the

 

 

 

 

a     Section 1, so far as material, is set out at [18], below

b     Section 4, so far as material, is set out at [19], below

[2010] 3 All ER 849 at  850

 

 

 

 

frequency of acts, could well throw light on whether it amounted to harassment. The issue in the instant case was whether C had pursued a course of conduct in relation to B which had amounted to harassment of her. If he had done, there had been sufficient evidence to go to the jury on the ‘fear’ element in s 4(1). In the instant case the incidents had been far from trivial and significant force had been used on occasion. However, in that volatile relationship, it was not possible to conclude that the six incidents over a nine month period amounted to a course of conduct amounting to harassment within the meaning of the 1997 Act. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which were the hallmarks of the instant case, interspersed as those outbursts had been with considerable periods of affectionate life, could not be described as such a course of conduct. Accordingly the conviction under the 1997 Act would be quashed (see [20], [26], [29], [31]-[33], [35], below).

 

Dicta of Lord Phillips MR in Thomas v News Group Newspapers Ltd [2002] EMLR 78 at [29], [30], and dicta of Lord Nicholls in Majrowski v Guy’s and St Thomas’s NHS Trust [2006] 4 All ER 395 at [30] applied.

 

Notes

 

For putting a person in fear of violence, see 11(1) Halsbury’s Laws (4th edn) (2006 reissue) para 153.

 

For the Protection from Harassment Act 1997, ss 1, 4, see 12(2) Halsbury’s Statutes (4th edn) (2008 reissue) 701, 705.

 

Cases referred to in judgment

 

C v CPS [2008] EWHC 148 (Admin), [2008] All ER (D) 117 (Feb), DC.

 

Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, [2006] 4 All ER 395, [2007] 1 AC 224, [2006] 3 WLR 125.

 

Pratt v DPP [2001] EWHC Admin 483, (2001) 165 JP 800, DC.

 

Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, [2002] EMLR 78.

 

R v Hills [2001] 1 FCR 569, [2001] 1 FLR 580, CA.

 

R v Henley (2000) Crim LR 582, CA.

 

Appeal

 

James Daniel Curtis was convicted on 10 July 2008 in the Crown Court at Lincoln after a trial before Judge Heath and a jury of putting a person in fear of violence by harassment contrary to s 4(1) of the Protection from Harassment Act 1997 and of causing danger to road users contrary to s 22A(1) of the Road Traffic Act 1988. He appealed against conviction with leave of the full court. The facts are set out in the judgment of the court.

 

Michael Magee (instructed by Fraser Dawbarns LLP, King’s Lynn) for the appellant.

 

Michael Cranmer-Brown (instructed by the Crown Prosecution Service) for the Crown.

 

Judgment was reserved.

 

9 February 2010. The following judgment of the court was delivered.

 

 

 

PILL LJ.

 

[1]  On 10 July 2008 in the Crown Court at Lincoln before Judge Heath, James Daniel Curtis was convicted, by a majority, of putting a person in fear of

[2010] 3 All ER 849 at  851

 

violence by harassment contrary to s 4(1) of the Protection from Harassment Act 1997 (count 1) and, unanimously, of causing danger to road users contrary to s 22A(1) of the Road Traffic Act 1988 (count 2). On 1 September 2008, he was sentenced on count 1 to a 12-month community service order with an unpaid work requirement of 120 hours. A similar order was imposed on count 2 with an unpaid work requirement of 60 hours, to run consecutively to count 1. Curtis was acquitted of counts of attempting to administer a noxious thing, theft and damaging property, on the judge’s direction. He appeals against conviction by leave of the full court.

 

[2]  The appellant and the complainant, Donna Brand, lived together from the Spring of 2005 until August 2006. They were both police constables in the Norfolk Constabulary and crewed together. They bought a house together in July 2005. The appellant was separated from his wife and Donna left her husband in order to cohabit with him. He was under medication for depression following a serious road accident in March 2000 when he was involved in a pursuit and three people in the car pursued were killed. At times, he drank too much.

 

[3]  The prosecution was based on six incidents which occurred while the appellant and Donna were living together. There is no doubt that the relationship was a volatile one. It was alleged that the appellant followed a course of conduct in which he used or threatened violence against Donna which caused her to fear that violence would be used against her and that the appellant knew or ought to have known that his course of conduct would cause her so to fear. Count 2 involved a specific incident in which the appellant and Donna were travelling in a motor car.

 

[4]  The defence accepted that there were ‘a few sporadic incidents in the course of a volatile relationship in which neither the defendant nor Donna Brand behaved in an exemplary manner’ but denied that there was any nexus or connection with the incidents which allowed them to be described as a course of conduct. He had not harassed her. A submission at the close of the prosecution case that there was no case to answer on harassment failed.

 

[5]  There were arguments because the appellant conducted long telephone conversations with his wife. Donna thought that he felt guilty about leaving his wife and said that he was jealous and possessive. His behaviour was bad when he had been drinking.

 

[6]  We summarise her evidence about the six incidents. The first incident (the stereo incident) was in November 2005. During a car journey the appellant sat in the passenger seat, very drunk and smoking. He kept dropping his cigarette and swore at Donna. He behaved in a bizarre manner, including opening the door of the moving vehicle. She was frightened that he would fall out and hurt himself. When they reached home, the appellant said his ex-wife was worth ten of her and otherwise abused her. Until then he had not been physically violent to her but he ‘palm heeled’ her backwards twice towards the sofa. He also ‘man-handled’ her. He turned the stereo on and she turned it off. She said that she wanted to stand up for herself and picked up a computer portable keyboard and threw it on the floor to show him that she was brave. She was frightened of him and showed him that she could be angry and could not be intimidated. She was shocked that he had laid his hands on her. She did not want him to see her as the little woman who could be intimidated. Eventually they went to bed together. In the following weeks, things were much better.

[2010] 3 All ER 849 at  852

 

[7]  The second incident (the Baileys incident) occurred in March 2006, that is three to four months after the first incident. He complained that she had taken the last drop of his bottle of Baileys whereupon he became angry. She pulled the cigarette out of his mouth, threw it in the sink and said ‘all you think about is drink’. She apologised to him but he put his hand in an L shape against her throat. She punched him in the face. He pushed her. Her dog came in and bit him. He kicked the dog into the garden. Donna was on his back. He then pushed her and she fell hitting her head on the radiator. When she began to call the police, he smashed a glass over his head. He was bleeding from the dog bite and had a small cut to his head. She felt guilty about punching him when he had not punched her. They then went to bed. She bought him a new guitar because she thought he deserved it.

 

[8]  The third incident (the handbrake incident) occurred in April 2006 and needs to be considered in relation to both counts in the indictment. Donna collected the defendant at midnight when he was ‘really drunk’. Her account was that while initially he was in a good mood he became angry having spilled tobacco while rolling a cigarette. He started texting and she thought he might be texting another woman. When she was driving at about 60 miles an hour, he pulled the handbrake putting the car into a skid. She was crying and shaking but he thought it was funny.

 

[9]  A police expert witness, Mr Chance, stated that when a vehicle is travelling fast, application of the handbrake may cause it to spin through 180 degrees. However, that was highly unlikely with the vehicle being driven unless the footbrake was also applied. Tests on the particular vehicle would be required to test which of the versions of the incident was accurate.

 

[10]  In his account, the appellant said that he applied the handbrake after repeatedly asking Donna to stop the car. The car was travelling at 35-40 miles an hour. There was no danger. Her account was inaccurate.

 

[11]  The fourth incident occurred when they arrived home following the handbrake incident. He was angry and shouting at her and said she was pathetic and jealous. She threw some drink in his face whereupon he palm heeled her three times to the shoulders and held her dressing gown, pinching her skin underneath. He held her against the door causing bruising to her chest. She bumped her arm as they went through a door but that was not his fault. He poured a drink over her head but she said she should have expected that because her beer had gone over him. She was locked out and stayed the night at his parents’ home. He was really apologetic on the next morning. She said she was still in love with him, she thought he was genuinely sorry. In cross-examination, she accepted that, when she had thrown beer in his face, he had not laid a finger on her.

 

[12]  The fifth incident occurred during a camping holiday in the Lake District in July 2006. They had a pleasant evening though he had drunk heavily. She asked him not to smoke in the tent because she was anxious about the tent catching fire. A gas bottle was nearby. The appellant’s daughter, Abbey, left the tent for a while. In bed, Donna said that he made sure his elbows and knees were digging into her. She pushed him with the flat of her feet to get him off her and he rolled backwards off the bed. He then got on top of her and put his hands around her throat, she thought he was going to hit her. She was crying, frightened and upset. She and the appellant’s daughter went home and she decided to put the house on the market. He was very apologetic and said he would stop drinking and wanted them to stay together.

[2010] 3 All ER 849 at  853

 

[13]  The sixth incident occurred on 12 August 2006. Donna learnt of a suicide note another man had written and did not want to be in that position with the appellant. She wanted to separate because otherwise one of them would end up getting hurt. The appellant begged her not to go. At night, he woke her and she found that the house smelt of fumes, like petrol fumes. The fumes were from the engine of a power motor. She texted the appellant’s brother to come over and was frightened of what the appellant would try to do. She thought he had tried to hurt himself. However, she got into bed with him. While there was no force, she said she was frightened of his approaches. He was angry that Donna had phoned his brother and was by this time calm. She was shaking with fear though he did not behave in a violent, aggressive or threatening way. He said he would not hurt her and he fell asleep.

 

[14]  At the close of the prosecution case, and with a view to hearing submissions from the prosecution, the judge, as he put it, articulated his thoughts to assist prosecuting counsel. He related the complainant’s evidence in detail referring to the ‘insecurity on both sides’ and commented that ‘both were being somewhat childish’. The judge said that he could not see ‘how that fits into a course of conduct of harassment. It was a response, it seems to me, on the face of it, to her saying: “I am sorry, but this relationship is now over”.’

 

[15]  The judge further commented that ‘it is not as though it is a deliberate course of repeated conduct on the part of a defendant. There appear to have been a series of domestic disagreements which have arisen. Neither may have acted in an exemplary fashion in relation to each of them’. The judge asked rhetorically whether it was something where a jury could safely say that they were satisfied that the appellant had been guilty of a course of conduct within the meaning of the Act. However, having heard submissions, the judge concluded that ‘a properly directed jury could come to the conclusion that there is a course of conduct in this case’.

 

[16]  On count 1, the particulars of offence stated in the indictment were:

 

‘James Daniel Curtis between first day of November 2005 and thirty-first day of August 2006 caused Donna Brand to fear that violence would be used against her by his course of conduct which he knew or ought to have known would cause fear of violence to Donna Brand on each occasion, in that …’

 

 

Brief particulars of each of the six incidents described more fully above are given. Apart from the handbrake incident, they each read as straightforward assaults.

 

[17]  The appellant’s submissions are, first, that the evidence for the prosecution did not amount to what in law was an offence under s 4(1) of the 1997 Act. Secondly, had the case been stopped on count 1, it would have been necessary to discharge the jury on count 2 because they had heard a very considerable amount of evidence unrelated to that count which may have unfairly prejudiced the appellant in the jury’s consideration of that count.

 

[18]  In so far as material, ss 1 and 2 of the 1997 Act provide:

1 (1) A person must not pursue a course of conduct–(a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other …

 

2 (1) A person who pursues a course of conduct in breach of section 1(1) … is guilty of an offence.’

 

 

[19]  Section 4 provides, in so far as is material:

[2010] 3 All ER 849 at  854

‘(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.

 

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.’

 

 

[20]  The ‘course of conduct’ identified in s 4(1) is a course of conduct which amounts to harassment of another. That follows, in our judgment, from the definition in s 1(1)(a), confirmed in s 2 by the reference to ‘a course of conduct in breach of section 1(1)’. Section 1 is headed ‘Prohibition of harassment’. The 1997 Act describes itself as ‘An Act, to make provision for protecting persons from harassment and similar conduct’. On a trial on indictment, the jury may find a defendant guilty of an offence under s 2, as an alternative, on a charge under s 4, which demonstrates that both are concerned with a course of conduct amounting to harassment. The issue is whether, on the evidence, the appellant had pursued a course of conduct in relation to Donna which amounted to harassment of her. If he did, there was sufficient evidence to go to the jury on the ‘fear’ element in s 4(1).

 

[21]  The word ‘harassment’ does not appear in the particulars of offence which the judge correctly quoted. That may explain why it is a feature of the judge’s summing up that, save for a recital of the statement of offence at the beginning of the legal directions, there is no mention of ‘harassment’. It concentrates upon whether or not there was a course of conduct, without reference to whether that course of conduct amounted to harassment of another.

 

[22]  The judge continued, and we refer to relevant paragraphs:

‘Now, the law is that a person whose course of conduct causes another to fear on at least two occasions that violence will be used against that person is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions. The law is that a person ought to know that his course of conduct will cause another to fear that violence will be used against that person if a reasonable person in possession of the same information would think that the course of conduct would cause the other so to fear on that occasion …

 

Now, before you may convict the defendant on count 1, you must be sure of each of three elements of the offence. Those elements are as follows: firstly, that what the defendant did amounted to a course of conduct. The prosecution say that what the defendant did amounted to a course of conduct because there is a nexus or connection between each incident, that is, on each occasion Donna Brand stood up to the defendant and he then used or threatened violence against her. The defence say that there was no such nexus or connection and no course of conduct on the part of the defendant. The defence say that there were simply a few sporadic incidents in the course of a volatile relationship in which neither the defendant nor Donna Brand behaved in an exemplary manner …

 

Bear in mind the number of incident of which you are sure and how they arose. Bear in mind the length of time between each incident and that the fewer the number of incidents and the longer between them, the less

 

[2010] 3 All ER 849 at  855

likely it will be that they amount to a course of conduct. You must all agree upon the incidents which amount to the course of conduct if you are sure that there was one.

 

If you are not sure that there was a course of conduct–for example, you think that the incidents were or may have been no more than sporadic incidents in the course of a volatile relationship–then you must find the defendant not guilty on count 1.’

 

 

In the course of his legal directions on count 1, the judge used the expression ‘course of conduct’ no fewer than 29 times.

 

[23]  As to whether there was a nexus or connection between each incident or whether there were ‘no more than sporadic incidents’, the jury had sufficient help but they were not directed that it was necessary for the prosecution to establish that the course of conduct amounted to harassment. No definition of harassment appears in the 1997 Act save that s 7(2) provides that reference to harassing a person includes alarming the person or causing the person distress.

 

[24]  For the prosecution, Mr Cranmer-Brown submitted that the prosecution are required to prove only that there was a course of conduct which causes another to fear. That inevitably constitutes harassment, he submitted.

 

[25]  Consideration is required of what can amount to harassment. Reference has been made, and we are told made before the judge, to cases in which the issue was whether there has been a course of conduct (eg Pratt v DPP [2001] EWHC Admin 483, (2001) 165 JP 800). That will often be in issue, and indeed is in issue in the present case. In R v Henley (2000) Crim LR 582, there was no doubt, if the evidence was accepted, that there was a course of conduct amounting to harassment. The defendant ‘conducted a campaign deliberately designed’. The issue was whether the summing-up was defective in its approach to the required consequences of the campaign; the judge used words ‘seriously frighten’ instead of the words of the statute and referred to what might happen to the victim’s ‘family’.

 

[26]  The importance of these issues should not, however, deflect from the need to establish, as was accepted in Pratt‘s case, that the relevant course of conduct amounts to harassment. Whether a course of conduct amounted to harassment was analysed, on very different facts, in the Divisional Court in C v CPS [2008] EWHC 148 (Admin) at [73]-[77], [2008] All ER (D) 117 (Feb) at [73]-[77]. Harassment of a person may include alarming a person or causing a person distress (s 7(2)) but that does not, in our view, change the essential nature of harassment, to which we now turn.

 

[27]  In Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, [2006] 4 All ER 395, [2007] 1 AC 224, an action for breach of statutory duty, the House of Lords considered whether an employee had been unlawfully harassed by his departmental manager, in breach of s 1 of the 1997 Act. A civil remedy is provided by s 3 of the Act. Lord Nicholls of Birkenhead stated, at [18]:

‘The purpose of this statute is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation. The Act seeks to provide protection against stalkers, racial abusers, disruptive neighbours, bullying at work and so forth.’

 

 

[28]  At para [30], Lord Nicholls added:

[2010] 3 All ER 849 at  856

‘Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the “close connection” test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under s 2.’

 

 

[29]  To harass as defined in the Concise Oxford Dictionary (10th edn, 1999), is to ‘torment by subjecting to constant interference or intimidation’. The conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive. We respectfully agree with the analysis of Lord Phillips of Worth Matravers MR, with whom Jonathan Parker LJ and Lord Mustill agreed, in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, [2002] EMLR 78:

‘[29] Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.

 

[30] The Act does not attempt to define the type of conduct that is capable of constituting harassment. “Harassment” is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.’

 

 

[30]  In R v Hills [2001] 1 FCR 569, [2001] 1 FLR 580, the prosecution case was based on two incidents six months apart between two people who were partners and lived together. Otten LJ stated ([2001] 1 FCR 569 at 576, [2001] 1 FLR 580 at 586 (para 31)):

‘It is to be borne in mind that the state of affairs which was relied upon by the prosecution was miles away from the “stalking” type of offence for which the Act was intended. That is not to say that it is never appropriate so to charge a person who is making a nuisance of himself to his partner or wife when they have become estranged. However, in a situation such as this, when they were frequently coming back together and intercourse was taking place (apparently a video was taken of them having intercourse) it is unrealistic to think that this fell within the stalking category which either postulates a stranger or an estranged spouse.’

 

 

[31]  Assessment of a defendant’s conduct for the purposes of s 1 involves, of course, consideration of whether the conduct can be described as a course of conduct but that course of conduct must be conduct amounting to harassment, as so defined. The two limbs are inter-related in that an analysis of the course of conduct, including the frequency of acts, may well throw light on whether it amounts to harassment.

[2010] 3 All ER 849 at  857

 

[32]  In the present case, the jury would have been entitled, if they saw fit, to conclude that, over the course of the relationship, the appellant’s conduct was deplorable and worse than that of Donna. The incidents were far from trivial and significant force was on occasion used. However, we cannot conclude that, in this volatile relationship, the six incidents over a nine-month period amounted to a course of conduct amounting to harassment within the meaning of the statute. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which are the hallmarks of the present case, interspersed as those outbursts were with considerable periods of affectionate life, cannot be described as such a course of conduct. We do not exclude the possibility that harassment in s 1 may include harassment of a co-habitee but the appellant’s conduct in this case could not properly be categorised as a course of conduct amounting to harassment within the meaning of the Act.

 

[33]  The judge should have followed his first instincts and stopped the case at the close of the prosecution. Even if the judge was permitted to allow the case to continue, the verdict on count 1 was unsafe because the jury received no sufficient direction on the elements of the offence under s 4. On the evidence in this case, a direction that the course of conduct was one which amounted to harassment was also required and was absent from the summing up. The conviction on count 1 must be quashed.

 

[34]  In view of that, the conviction on count 2 is also unsafe. That was a specific offence under the 1988 Act and the appellant was unfairly prejudiced by the jury considering it in the ill-conceived context of an offence under the 1997 Act. Count 2 turned on an assessment of credibility. The jury’s assessment of the credibility of the two people concerned was unfairly affected by having heard a mass of evidence on unrelated issues which should not in any event have been before the jury.

 

[35]  The appeal is allowed and both convictions quashed.

 

Appeal allowed.

 

Karen Widdicombe     Solicitor.

 

 

 

All England Reporter/2010/February/*R v Curtis – [2010] All ER (D) 94 (Feb)

 

[2010] All ER (D) 94 (Feb)

 

*R v Curtis

 

[2010] EWCA Crim 123

 

 

Court of Appeal, Criminal Division

 

Pill LJ, Bennett and Field JJ

 

 

9 February 2010

 

Criminal law – Harassment – Course of conduct amounting to harassment – Whether conduct amounting to harassment – Six incidents occurring in course of relationship – Whether evidence in instant case demonstrating conduct amounting to harassment – Whether judge erring in declining to withdraw case from jury – Protection from Harassment Act 1997.

 

Abstract

Criminal law – Harassment. The Court of Appeal, Criminal Division, allowed the appeal of the defendant against his conviction for putting a person in fear of violence by harassment, and causing danger to road users as it could not be said that the defendant’s conduct could be categorised as a course of conduct amounting to harassment within the meaning of Protection from Harassment Act 1997.

 

Digest

 

The judgment is available at: [2010] EWCA Crim 123

 

The defendant and complainant, both of whom were police constables, lived together between 2005 and 2006. The defendant was under medication for depression following a serious road accident in March 2000. At times, he drank too much. The defendant and complainant’s relationship was volatile. At the defendant’s trial for putting a person in fear of violence by harassment, contrary to s 4(1) of the Protection from Harassment Act 1997, and causing danger to road users, contrary to s 22A(1) of the Road Traffic Act 1988, the prosecution relied on six incidents which had occurred between them (see [6]-[13] of the judgment). The prosecution alleged that the defendant had followed a course of conduct in which he had used or threatened violence against the complainant which had caused her to fear that violence would be used against her and that the defendant had known or should have known that his course of conduct would cause her so to fear. The defendant accepted that there were a ‘few sporadic incidents in the course of a volatile relationship in which neither [he nor the complainant] behaved in an exemplary manner’, but denied that there had been any nexus or connection with the incidents which allowed them to be described as a course of conduct. He submitted that there was no case to answer. The judge rejected the submission, albeit he commented that it was not a though it was a deliberate course of repeated conduct on the part of a defendant; there appeared to have been a series of domestic disagreements. It was common ground that the word ‘harassment’ did not appear in the particulars of offence on the indictment. The defendant was convicted. He appealed.

 

He submitted that the evidence for the prosecution did not amount to an offence in law under s 4(1) of the 1997 Act. Moreover, he contended that had the case been stopped on the harassment charge, it would have been necessary to discharge the jury on the driving offence because they had heard a very considerable amount of evidence unrelated to that count which might have unfairly prejudiced the jury’s consideration of it.  The prosecution submitted that it was required only to prove that there had been a course of conduct which caused another to fear; that inevitably constituted harassment. Accordingly, the principal consideration was what could amount to harassment.

 

The appeal would be allowed.

 

The course of conduct identified in s 4(1) was a course of conduct which amounted to harassment of another. That followed from the definition in s 1(1)(a), confirmed by s 2, by reference to a course of conduct in breach of s 1(1). Section 1 was headed ‘prohibition of harassment’. The 1997 Act described itself as ‘an Act to make provision for protecting persons from harassment and similar conduct’. On a trial on indictment, the jury might find a defendant guilty of an offence under s 2, as an alternative, on a charge under s 4, which demonstrated that both were concerned with a course of conduct amounting to harassment. No definition of harassment appears in the 1997 Act save that s 7(2) provided that reference to harassing a person included harming the person or causing the person distress. The importance of the issues of whether there had been a course of conduct should not deflect from the need to establish that the relevant course of conduct amounted to harassment. As stated in authority before the Civil Division of the Court of Appeal, s 7 of the 1997 Act did not purport to provide a comprehensive definition of harassment. There were many actions which foreseeably alarmed or caused a person distress that could not possibly be described as harassment. Section 7 was dealing with the effect of the conduct rather than with the types of conduct which produced that effect. The 1997 Act did not attempt to define the type of conduct that was capable of constituting harassment. However, ‘harassment’ was a word which had a meaning which was generally understood; it described conduct targeted at an individual which was calculated to produce the consequences described in s 7 and which was oppressive and unreasonable conduct; the practice of stalking was a prime example of such conduct. Assessment of a defendant’s conduct for the purposes of s 1 of the 1997 Act involved consideration of whether the conduct could be described as a course of conduct but that course of conduct had to be conduct amounting to harassment, as so defined. The two limbs were inter-related in that an analysis of the course of conduct, including the frequency of acts, might well throw light on whether it amounted to harassment (see [20]-[31] of the judgment).

 

In the instant case, the issue was whether, on the evidence, the defendant had pursued a course of conduct in relation to the complainant which had amounted to harassment of her. If he had, there would have been sufficient evidence to go to the jury on the ‘fear’ element in section 4(1). The word ‘harassment’ did not appear in the particulars of offence which the judge had correctly quoted. That might explain why it was a feature of the judge’s summing up that, save for a recital of the statement of offence at the beginning of the legal directions, there was no mention of harassment. It concentrated upon whether or not there was a course of conduct, without reference to whether that course of conduct amounted to harassment of another. The judge had used the expression ‘course of conduct’ no fewer than 29 times in his summing up. As to whether there was a nexus or connection between each incident or whether there were no more than sporadic incidents, the jury had had sufficient help but they had not been directed that it was necessary for the prosecution to establish that the course of conduct amounted to harassment. In the instant case, the jury would have been entitled, if they saw fit, to conclude that, over the course of the relationship, the defendant’s conduct was deplorable and worse than that of the complainant; the incidents were far from trivial, and significant force had on occasion been used. However, it could not be concluded that, in the volatile relationship, the six incidents over a nine-month period had amounted to a course of conduct amounting to harassment within the meaning of the statute. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which were the hallmarks of the instant case, interspersed as those outbursts were with considerable periods of affectionate life, could not be described as such a course of conduct. The defendant’s conduct in the instant case could not properly be categorised as a course of conduct amounting to harassment within the meaning of the 1997 Act. The judge should have followed his first instincts and stopped the case at the close of the prosecution. In view of that, the conviction on the driving offence was also unsafe; the defendant had been unfairly prejudiced by the jury considering it in the ill-conceived context of an offence under the 1997 Act (see [20]-[23] and [32]-[35] of the judgment).

 

The convictions would be quashed (see [35] of the judgment).

 

R v Hills [2001] 1 FCR 569 considered; Thomas v News Group Newspapers Ltd [2001] All ER (D) 246 (Jul) considered; Pratt v DPP [2001] All ER (D) 215 (Jun) considered; Majrowski v Guy’s and St Thomas’ NHS Trust [2006] 4 All ER 395 considered; C v Crown Prosecution Service [2008] All ER (D) 117 (Feb) considered.

 

Michael Magee (instructed by Fraser Dawbarns) for the defendant.

 

Michael Cranmer-Brown (instructed by the Crown Prosecution Service) for the Crown.

 

Vanessa Higgins   Barrister.

 

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