England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		2nd December 2005

1. MR JUSTICE CRESSWELL: This case is concerned with the principles to be applied in relation to restraining orders made under section 5 of the Protection from Harassment Act 1997. On 29th June 2004 at Leicester Crown Court the appellant, who is now 37 years of age, pleaded guilty on a first indictment to harassment contrary to section 2 of the Protection from Harassment Act 1997. She also pleaded guilty to counts five and six (unauthorised modification of computer material) contrary to section 3(1) of the Computer Misuse Act 1990, and count seven (doing an act tending and intended to pervert the course of justice). She was bailed for reports, one of her bail conditions being that she was not to access the internet, but she reoffended.
2. On 3rd December 2004 she appeared before the court again in respect of further offences and pleaded guilty on a second indictment to count two (unauthorised modification of computer material), counts three, four, five and six (attempting to cause unauthorised modification of a computer) and count seven (perverting the course of justice).
3. On 28th January this year, she was sentenced by HHJ Collis to a two year community rehabilitation order concurrent on each count, and made subject to a restraining order under section 5 of the 1997 Act, prohibiting her from (1) contacting directly or indirectly the complainant, his fiancee, and others specified, and (2) publishing any information concerning the complainant and his fiancee, whether true or not, indefinitely. She appeals against sentence, limited to the restraining order only, by leave of the single judge.
4. The facts were as follows. The appellant and the complainant, Mr A, were work colleagues. One night in July 2001 they had a one night stand. The appellant believed that she had caught chlamydia from this encounter, although in fact the complainant has never had chlamydia. As to the first indictment, this belief appeared to be what sparked a course of harassment by the appellant between February 2003 and February 2004, globally encompassed in her plea to the offence of harassment contrary to section 2 of the 1997 Act.
5. She sent the complainant's fiancee emails purporting to be from one of his friends, informing her of alleged sexual indiscretions. She registered the complainant on a website called "positive singles.com", a database for people with sexually transmitted diseases seeking sexual liaisons. She set up a website called "A is gay.com", which had a fake newspaper article detailing alleged homosexual practices by the complainant. Another email asked the appellant about his car: his car had recently been sprayed with brake fluid. The Crown did not say conclusively that she was responsible for this. The complainant received large amounts of homosexual pornography. He found that he was registered on a gay American prisoner exchange. He received a letter from a long-term, gay, American prisoner, in response to a letter he had allegedly written, describing various sexual fantasies.
6. In December 2004 the complainant's former employers received an email purporting to be from him, which listed ways in which he was allegedly harassing the appellant and trying to frame her for harassing him. It was also suggested that he had a criminal record, which was not the case. The email was circulated throughout the company.
7. As to count five, in January 2004 the appellant arranged to have the complainant's email account sabotaged so that he was unable to access his account again. All the material in his account was forwarded to another email account to which the appellant had exclusive access. As to count six, in February 2004 the appellant emailed the complainant's employers (from an account in the name of his ex-girlfriend) what purported to be an exchange between the appellant and his fiancee discussing their efforts to frame the appellant. The email had been taken from the complainant's email account, but its content and internet postmark had been edited.
8. The appellant was arrested and her computers were examined. She had paid a group of computer hackers $150 to assist in sabotaging the complainant's email. She had joined a revenge internet forum, where she exchanged practical ideas about exacting revenge.
9. As to count 7, she was bailed. The police contacted the Canadian police to investigate the computer hackers, who appeared to be based in Canada. Two days later, on 14th February 2004, the appellant emailed the hackers alerting them to the police investigation.
10. The appellant came before the court on 29th June 2004, pleaded guilty to various counts and was bailed for reports. One of her bail conditions was not to access the internet. As to the second indictment, counts three, four, five and six, the appellant contacted another group of computer hackers. She gave them the names and details of five email accounts relating to the complainant. The hackers unsuccessfully attempted to hack into the first four of those email accounts. As to count one, they did hack into the fifth account, and sent an email to the complainant's employers suggesting that the complainant had a criminal record and that he had been trying to frame the appellant.
11. The company's investigation caused a lot of distress, particularly to an innocent member of the IT staff that the appellant had tried to implicate. As to count seven, the appellant was arrested. In interview she said she could not have been responsible for these emails, because she was in London at the time they were sent. She sent a text message to a woman she met whilst on remand asking her to provide an alibi. When the police went to check the appellant's alibi, the woman said, "You've come about this haven't you?", and showed them the text message.
12. In his sentencing remarks, the judge said this:

"I have taken into account the fact that you have served 23 weeks on remand, which is equivalent to virtually 12 months' prison sentence. The main point here is to see that this does not happen again and I intend to make a restraining order in certain terms that you are prohibited from contacting directly or indirectly the people named in the order."

13. He went on to make a restraining order in the terms that we have identified.
14. The appellant had not previously appeared before the courts. We have seen a presentence report dated 20th August 2004, and an addendum to the pre-sentence report dated 27th January 2005, a psychological report dated 22nd August 2004 and a psychiatric report dated 26th January 2005.
15. The terms of the restraining order as imposed (indefinitely) were as follows:

"... the defendant is prohibited from (1) contacting directly or indirectly A, H and other persons named, and (2) publishing any information concerning A and H whether true or not."

16. Mr Conlon, for the appellant, submitted that the restraining order is too wide as it impinges on the fundamental right of a citizen to publish the truth in almost any circumstances. The appellant relies on Article 10 of the European Convention. Mr Conlon referred to Handyside v United Kingdom (1976) EHRR 737 at paragraph 49:

"Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of every man. It is applicable not only to information or ideas that are favourably received, but also to those that offend, shock or disturb the state or any sector of the population."

17. Mr Conlon submitted that the order is so wide as to go beyond protecting against gratuitous personal attacks, as would be commensurate with the meaning of Article 10, as per Oberschlick v Austria (1975) 25 EHRR 375 and De Haes v Belgium (1997) 25 EHRR 1. He submitted that the law does not allow a blanket ban on publishing the truth, which often offends. Furthermore, for the restraining order to work effectively, there is no need to order the prevention of publishing the truth. To do so would be to erode the substance of democracy itself.
18. In his skeleton argument Mr Varley, for the prosecution, submitted as follows. The terms of the restraining order are no wider than necessary to protect the complainant, who has suffered a long-term campaign of harassment at the hands of the appellant. The restraining order is only breached if its terms are contravened without reasonable excuse. It is possible to commit the offence of harassment simply by publishing the truth about someone, for instance publishing accurate personal details about an individual: their address, phone number, et cetera. The restriction on the appellant's freedom is to be balanced, submitted Mr Varley, against the rights of the complainant, who is also a member of a democratic society. The purpose of the order is to afford protection to the complainant and his fiancee. Not only do they enjoy that protection under domestic law, but they also have Article 8 rights to private and family life. The correct test to apply is whether the order pursues a legitimate aim and whether the restriction imposed is proportionate and necessary to achieve that aim. The appellant has pursued this complainant since January 2005. She has two convictions relating to harassment of him, and is now facing a third indictment relating to his fiancee, Miss H, who is also protected by the order. The restriction on publishing the truth about two named individuals who are private citizens, not public figures, with whom she has no connection, is clearly, submits Mr Varley, proportionate to protect them from further interference and harassment. The appellant has no need to publish any information about the complainant. Should one arise, and she can establish there was a reasonable excuse, no offence would be committed unless the Crown did not accept the excuse. Therefore the restriction that she is subject to is minor, whereas the level of protection afforded is great.
19. We turn to consider these submissions. Section 5 of the Protection from Harassment Act 1997 (as subsequently amended) provides, as far as material:

"(1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.

"(2) The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from further conduct which --

"(a) amounts to harassment, or

"(b) will cause a fear of violence; "prohibit the defendant from doing anything described in the order.

"(3) The order may have effect for a specified period or until further order.

"(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order."

20. The following principles in our judgment apply to restraining orders under section 5:

1. The purpose of a restraining order is to prohibit particular conduct with a view to protecting the victim or victims of the offence and preventing further offences under section 2 or 4 of the Act.

2. A restraining order must be drafted in clear and precise terms so there is no doubt as to what the defendant is prohibited from doing.

3. Orders should be framed in practical terms (for example it may be preferable to frame a restriction order by reference to specific roads or a specific address). A radius restriction will not necessarily invalidate an order. If necessary a map should be prepared; R v Robert Beck 28th July 2003 Mance LJ, paragraph 9.

4. In considering the terms and extent of a restraining order the court should have regard to considerations of proportionality, Beck supra at paragraph 13.

5. The power of the court to vary or discharge the order in question by a further order under section 5(4) is an important safeguard to defendants. The Court of Appeal Criminal Division is unlikely to interfere with the terms of a restraining order, if an application to the court which imposed the restraining order to vary or discharge was in the circumstances the appropriate course.

21. As to Article 10 of the ECHR, Article 10(1) is qualified by Article 10(2). Article 10 provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

22. Lester and Pannick, "Human Rights Law and Practice", second edition, at page 363 states:

"Any restriction upon free speech must pass three distinct tests: (a) it must be prescribed by law; (b) it must further a legitimate aim; and (c) the interference must be shown to be necessary in a democratic society."

23. The authors cite Shayler (2003) 1 AC 247, paragraph 23, in support of this proposition.
24. In our judgment, in the exceptional circumstances of the present case, the wide terms of the restraining order complained of are necessary for the prevention of crime and, in particular, protecting the victims of the appellant and preventing further offences under section 2 of the Act. In reaching this conclusion we have had regard to all the circumstances described above and the evidence before the court below.
25. Further, the appellant has shown that she is incapable of distinguishing between what is true and false. If permitted to publish any information about the complainant and his fiancee, the appellant will go to quite extraordinary lengths to find some new means of harassing the complainants. It is not difficult to envisage examples of how the appellant might further harass the complainant and his fiancee by publishing information which is true, for example by placing information on a website, such as:

"I have harassed Mr A. We had an one night stand in July 2001. Thereafter he has refused to associate with me. His email address is below".

26. The court has examined the terms of the order in question with counsel in this case and we have, following that discussion, reached the conclusion that the terms of the order, exceptional as they are, are justified. In our judgment the restraining order as drafted is (a) prescribed by law, (b) to further a legitimate aim, (c) necessary in a democratic society, and (d) proportionate. It is always open to the appellant to apply for a variation at a later date if such a variation is justified.
27. For these reasons this appeal is dismissed.