England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		4th December 2000

1. LORD JUSTICE OTTON: In the Crown Court at Lewes before His Honour Judge Hayward, GSH, the appellant, was convicted of an offence of harassment contrary to section 4(1) and (4) of the Protection from Harassment Act 1997. He was subsequently sentenced to six months' imprisonment. He appeals against conviction and sentence by leave of the single judge.

2. The appellant and the complainant were partners of some standing. They lived together from March 1998 until 27th October 1999, when she left the appellant.

3. On 1st November 1999 the appellant was arrested. He was interviewed in respect of three matters, namely an alleged rape and two offences of causing actual bodily harm, which were said to have occurred on 30th April and 26th or 27th October 1999 respectively.

4. The appellant was subsequently charged with harassment only.

5. There then followed a rather unusual train of events, centring on a number of indictments, the history of which it is necessary to set out in some detail.

6. The first indictment contained one count of harassment. The count alleged a course of conduct between 11th April and 30th October 1999 and included an allegation that on 12th April the appellant had indecently assaulted the complainant. No plea was taken at the first plea and directions hearing on 21st January 2000 because the Crown indicated that it wished to review the indictment and consider whether to add a count of rape. The Crown later informed the defence that it intended to apply to add a count of rape to that indictment and that the harassment particulars would not include the allegation of indecent assault.

7. The matter came before the judge on 22nd March. On that occasion the Crown applied to amend the indictment to include a count of rape. This was objected to on the ground that the rape count should not be added to the indictment since it was not founded on the same facts as the harassment count, nor was it part of a series of offences of the same character. The learned judge indicated that there was a gap in the particulars in the harassment count between April and October, although it was clear from the complainant's statement that the abusive, violent and threatening behaviour continued during that period. If the count were amended to include particulars of incidents between those months then the count on the present indictment would be sound. Thus, the alarm bells started to ring for the Crown.

8. The learned judge also held that the allegation of rape was not founded on the same facts but it did arise from an incident on 12th April. The allegation was that the appellant was guilty of a course of violent and abusive behaviour towards the complainant and that allegations included rape on one occasion and violence and threats of violence on the other occasions. The proper way to proceed was to add the rape count. However, in respect of the rape allegation, the counts would be heard separately because the evidence of the appellant's alleged behaviour after 12th April would be highly prejudicial to a fair trial on the rape count. That was the way the matter rested on 22nd March.

9. On 10th April the indictment was amended. In respect of the harassment count, particulars were set out in numbered paragraphs identifying the incidents relied upon to show harassment. The count alleged a course of conduct between 28th April and 30th October. Paragraph 2 alleged that between 30th April and 30th October the appellant assaulted the complainant on a number of occasions by throwing a stool at her, hitting her, restricting her breathing by putting her hands over her mouth or around her throat and attempting to smother her with a pillow.

10. The case eventually came into court on 10th April, when the appellant was arraigned. On that occasion it was contended on his behalf that, since none of the complainant's witness statements referred to the dates of the allegations outlined in paragraph 2, they could all easily have occurred in October, in which case the original complaint about the indictment had not been cured. The learned judge ruled that the complainant had said that, over a period of time and on a fairly regular basis, she had been ill-treated by the appellant. Consequently, the indictment was valid. If the evidence did not support a course of conduct then the remedy was to make a submission at the end of the Crown's case. That, so far as this Court is concerned, was an indication to the prosecution that if their case did not stand up and there was no interlink between the April and October incidents they were in trouble on the indictment as it was then hooked to a general count of harassment. The Crown indicated that it proposed to take a further statement from the complainant, which would deal with her ability to recall the dates upon which the incidents occurred.

11. On 3rd August the trial commenced. At the outset, the Crown successfully applied to delete paragraph 3 of the particulars of the harassment count. The remaining paragraphs were renumbered, thus making version four of the indictment. The counts still alleged a course of conduct between 28th April and 30th October, the particulars of which alleged as follows:

    "(i) On 30th April the appellant assaulted the complainant by throwing a coffee table at her which struck her leg and pushing her over;

    (ii) Between 30th April and 30th October the appellant assaulted the complainant on a number of occasions by throwing a stool at her, hitting her, restrict her breathing by putting his hands over her mouth or around her throat and attempting to smother her with a pillow;

    (iii) on a date Between 25th and 28th October the appellant threatened the complainant with a kitchen knife, caused damage to her property and assaulted her by forcibly bending her backwards and subsequently putting her against a wall and on 29th October he attended 32 Parker Court [where the complainant lived] and kicked the door several times."

12. Confronted with this indictment, defence counsel submitted that the complainant's most recent witness statement disclosed no evidence that the April incident was linked to the October incidents. Harassment was a continuing offence. There was nothing to show that the April matter was more than an unconnected incident. This was particularly so since the parties continued to live with each other through the relevant period, during which time as it had emerged in the earlier rape trial the complainant had made a video of the parties having sexual intercourse together. The judge was referred to the case of Lau, to which reference will be made hereafter.

13. On that occasion the learned judge held that the present state of the evidence was that the complainant could not recall specific dates when she had been assaulted. The gap had been narrowed from the end of April to early October. It was not clear from the statement how often she had been assaulted. Counsel suggested that the phrase "a number of occasions" in paragraph 2 of the particulars suggested a number of single, separate incidents of violence. Her statements did not suggest that each type of incident had occurred more than once.

14. It was agreed that the incident involving the kitchen knife, the damage to the complainant's property and bending her backwards, as alleged in paragraph 3, all occurred on the same occasion. Counsel had contended that, if the incident on 29th October, the kicking of the door at 32 Parker Court, was a separate incident then it was not something which could come within the course of conduct. The learned judge disagreed. It was a matter for the jury to decide. If true, the incident would be the clearest possible evidence of an aggressive attitude on the part of the appellant towards his by then former partner. At the stage at which the proceedings had reached there was evidence to support the allegation of harassment.

15. Pausing there, we would not criticise the learned judge for taking that line. On the papers there was at least a tenuous link between the substantive incident in April and the incident at the end of October, which suggested that there was some linkage between the two incidents and they were not merely separate and isolated incidents but part of a course of conduct.

16. However, when the complainant came to give evidence she made it plain that she was able to pinpoint the incidents which occurred on 30th April since her aunt had held a barbecue on that day. The appellant had lost his temper and had thrown a small table, which hit her on the leg. The appellant then grabbed her hair, pulled her to the ground and caused her to hit her head on the daughter's doll's buggy. That clearly indicated an assault occasioning actual bodily harm.

17. She went on to say that, on a day in October, the appellant came home after he had been drinking. The appellant fell on the stairs. An argument ensued, during which she was threatened and subsequently pushed against a door, at which point the appellant punched a knife into the doorframe. The complainant said that she believed that the appellant was going to kill her.

18. She then gave evidence which tended to show a linkage. She said that, although vague as to dates of the other incidents, between April and October the appellant frequently pulled her hair and sometimes placed his hand over her mouth from behind in order to stop her screaming. This had taken place two or three times a week from April onwards. She would be pulled back towards the floor. The applicant also began to push her, putting his weight on her, sometimes holding her down by his knee when she was in bed. She said that there had only been one occasion when the appellant had smothered her with a pillow, which had occurred on the same occasion that he tried to restrict her breathing. She also said that, on occasions, things did improve between them, but in October they deteriorated again.

19. She was then cross-examined by counsel, Miss Frost, to some effect. This revealed that there were inconsistencies between her evidence and what she had said in her affidavits sworn on 1st November 1999 and prepared in respect of injunction proceedings in a civil domestic dispute. The complainant agreed that in her affidavit she had said that the incident of hair pulling had occurred only in April 1999 and that there had been no physical incidents at all between April and October. She did not regard the incidents of hair pulling as physical incidents at all or but as a wholly different form of violence. When describing the April incident in her witness statement, the complainant had not mentioned that her hair had been pulled. When describing the October incident, she had said in evidence that she did not see the knife until it was stuck into the doorframe near her head. In her statement she said that she had seen that the appellant had a knife when she had first walked into the kitchen before the assault. The accounts were utterly irreconcilable. She must have been wrong about one version or the other, if not both. She accepted that when she had spoken to the detective constable in May 1999 she had not mentioned being pushed or pulled over. Nor had she mentioned cutting her head on the doll's buggy. In respect of the occasion when the appellant had placed a pillow over her face, she had said in her statement that that incident had occurred in October. She accepted that it might have been earlier. When pressed by reference to her affidavit, she said that it had probably taken place in April.

20. At the end of the prosecution's evidence, not surprisingly, counsel submitted that there was no case to answer. It was conceded that there was evidence on an assault on 30th April and 27th October, but counsel submitted the evidence did not establish a course of conduct. The only evidence of any conduct between those dates was of regular hair pulling, an allegation which had not been particularised in the indictment. In any event, the complainant seemed not to put these in the same category as the other two incidents she had mentioned. Her evidence of hair pulling was unreliable and did not in any event amount to an incident of the type required to establish it as being part of a course of conduct. The learned judge held that the particulars which had been given were intended to summarise: they were not a pleading. He did not agree that the Crown could not rely upon the allegation of hair pulling which the complainant said had taken place between April and October. There was ample prima facie evidence to go before the jury. It was not so tenuous or contradictory that it could be ruled out. He went on to say that if the jury were satisfied so that it was sure about those allegations it could convict. If they were not satisfied about the hair pulling incidents, then there were just two separate incidents and the jury would be told that they might feel that they did not amount to harassment as defined by the Act. The appellant did not give evidence, nor was any evidence called on his behalf.

21. Given that unusual background and the conduct of the prosecution in particular in not being able to formulate their case until after four attempts had been made to settle an indictment upon which they were prepared to prosecute, it is not surprising that Miss Frost advances her arguments with some force before this court. We are bound to say that this was a very unsatisfactory state of affairs. It may have been wiser not to have proceeded by way of a single count in the indictment alleging harassment.

22. Section 1 of the Act provides:

    "(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."

23. The commentary in Archbold is illuminating which reads (at 19-277a):

    "The Act describes itself as one 'to make provision for protecting persons from harassment and similar conduct'. It was passed for the purpose of dealing with the phenomenon of 'stalking'. There is, however, no attempt at a definition of harassment, although section 7(2) provides that references to harassing a person include alarming the person or causing the person distress. It is obvious, therefore, that the Act may be used to prosecute a range of persons apart from those commonly referred to as 'stalkers'."

24. Section 4(1), with a shoulder heading "Putting people in fear of violence", provides:

    "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 have known that his course of conduct will cause the other so to fear on each of those occasions."

25. Thus, harassment is a particular and discrete offence from the normal offences of specified violence. It is a basic ingredient of the offence that there should be a course of conduct, and one which the person knows or ought to know that his course of conduct will cause the other to fear on each of those occasions.

26. The whole thrust of the prosecution case - and indeed the evidence from the complainant herself - centred on two separate and individual incidents, namely the assault in April and the assault in October. They were a considerable distance apart. On their face and on the evidence there was a clear prima facie case which would have justified counts in the indictment alleging actual bodily harm on each occasion.

27. The Court of Appeal in March 2000 considered the case of Lau v DPP, which concerned two incidents between a girlfriend and a boyfriend. It was held that although incidents to be proved in relation to harassment need not exceed two incidents, the fewer the occasions and the wider they were spread the less likely it would be that a finding of harassment could reasonably be made. It was possible to conceive of circumstances where incidents as far apart as a year could constitute a course of conduct and harassment, namely racial harassment taking place outside a synagogue on a religious holiday and repeated each year or a threat to do something once a year on a person's birthday. Nevertheless the broad position had to be that if one was left with only two incidents it was necessary to see whether what happened on those two occasions could be described as a course of conduct. It was not possible to answer that question, adopting an essentially mathematical approach by saying that there were two incidents and that showed that there was a course of conduct. The root question on which the magistrates ought to have concentrated was whether or not, bearing in mind that they had only found two of the incidents proved, separated as they were by some four months, and in the absence of any other relevant finding, that could reasonably be described as a course of conduct by the defendant. As the facts did not reveal sufficient material to have enabled the magistrates to convict the appellant of harassment the conviction would be quashed.

28. Miss Frost has brought that decision to our attention and also the commentary, which is to be found in [2000] Crim LR 580, which emphasises that in order to constitute an offence under the Act there must be conduct on at least two occasions and that it includes verbal violence as well.

29. With that analysis we return to the instant case. At the close of the prosecution case it became abundantly clear that the position which the learned judge had adopted at the outset was, to say the least, severely undermined. In cross-examination it became apparent that the complainant herself was concentrating and most affected by the two incidents, which were some five or six months apart. When it came to the linking evidence, she became vague and the contradictory statements placed her credibility in a very serious position.

30. He had already indicated that if the case on the linking conduct did not come up to proof he would have been prepared to stop the case at half-time. Here evidence had dramatically fallen apart. We have to consider whether the evidence at that stage did constitute sufficient to make the necessarily cogent linkage between the two offences. In our view it did not. We are obliged to say that we feel that, given the particular nature of the offence of harassment, the situation did not justify the case going forward to the jury.

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. That was not the situation when the course of conduct relied upon was committed.

32. In those circumstances, we have come to the conclusion that, when the evidence crossed over the threshold from a mere putting in fear to a substantive count of actual bodily harm, the prosecution might have been wiser to have abandoned the harassment count and to have concentrated on the two substantive counts of violence, and with more prospects of success. They insisted, for reasons which are not entirely clear, on proceeding with harassment counts, where, in the events leading up to the arraignment at least, they were put on notice and that the chances of securing a conviction on the single count of harassment alone in the indictment were fast receding. We have come to the conclusion, therefore, that the conviction is not safe. We must allow the appeal and it must be quashed.