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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