B e f o r e :
(Vice President of the Queen's Bench Division)
MR JUSTICE CURTIS
MR JUSTICE HUGHES
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MR M F PARKES appeared on behalf of the Crown
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"A person who pursues a course of conduct in breach of section 1 is guilty of an offence."
"(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) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows --
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
"As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness."
"The Crown having conceded that the issue of duress is open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows: (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [another] had said or done, he had good cause to fear that if he did not so act [that other] would kill him, or (if this is to be added) cause him serious physical injury? (2) If so have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of this defendant, would not have responded to whatever he reasonably believed [that other] said or did by taking part in the killing?The fact that a defendant's will to resist had been eroded by the voluntary consumption of drink or drugs or both is not relevant to that test."
MR BUTTERFIELD: My Lord, may I raise one final matter?
LORD JUSTICE KENNEDY: Yes.
MR BUTTERFIELD: As you may have seen from the papers it is an area that the learned judge found himself short of helpful guidance about. That, of course, has now been provided by much of my Lord's judgment, but as has been acknowledged by a number of different people in the source of their different comments about the case, this is an area where the Act does bite on people with disorders, at the lower end from mild personality disorders up to the higher end severe mental illnesses. And I wonder if you might consider, therefore, that the question raised is one of some importance, and I refer to public importance? I invite you to consider formulating a question along those lines.
LORD JUSTICE KENNEDY: I think normally if you want us to consider a question, it is for you to formulate it and for us to decide whether to certify it.
MR BUTTERFIELD: I have drafted one.
LORD JUSTICE KENNEDY: Let us have a look. (Handed). Have you had a chance to look at it, Mr Parkes?
MR PARKES: I have, thank you, my Lord.
LORD JUSTICE KENNEDY: Yes.
MR BUTTERFIELD: That is the point I raise, my Lord.
LORD JUSTICE KENNEDY: Do you want to say anything, Mr Parkes?
MR PARKES: My Lord, I don't think I can properly add anything to what has been said.
LORD JUSTICE KENNEDY: Thank you. (Pause). We are satisfied that it is a point of law, but I am afraid we are not persuaded that it is a point of sufficient public importance to certify.
MR BUTTERFIELD: So be it, my Lord.