England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LINCOLN CROWN COURT
HIS HONOUR JUDGE HEATH

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2010

Lord Justice Pill :

1. On 10 July 2008 in the Crown Court at Lincoln before His Honour Judge Heath, James Daniel Curtis was convicted, by a majority, of putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997 ("the 1997 Act") (count 1) and, unanimously, of causing danger to road users contrary to section 22A(1) of the Road Traffic Act 1988 ("the 1988 Act") (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.
7. The second incident (the Baileys incident) occurred in March 2006, that is 3 to 4 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^o. 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 to 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 3 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.
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 text 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 section 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, sections 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) that 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:

"4. (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 section 4(1) is a course of conduct which amounts to harassment of another. That follows, in our judgment, from the definition in section 1(1)(a), confirmed in section 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 section 2, as an alternative, on a charge under section 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 section 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 offence so to fear on that occasion.

. . .

Now, before you may convict the defendant on count one, 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 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 one."

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 section 7(2) provides that reference to harassing a person includes harming 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 (e.g. Pratt v DPP [2001] EWHC Admin 483). That will often be in issue, and indeed is in issue in the present case. In R v Henley 11 February 2000, [2000] 3 Archbold News, 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 issue should not, however, deflect from the need to establish, as was accepted in Pratt, 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 paragraphs 73 to 77. Harassment of a person may include alarming a person or causing a person distress (section 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 [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 section 1 of the 1997 Act. A civil remedy is provided by section 3 of the Act.

Lord Nicholls of Birkenhead stated, at paragraph 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 paragraph 30, Lord Nicholls added:

"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-today 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 sustained criminal liability under section 2."

29. To harass as defined in the Concise Oxford Dictionary, Tenth Edition, 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 MR, with whom Jonathan Parker LJ and Lord Mustill agreed, in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233:

"[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 s.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 s.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 FLR 580, prosecution case was based on two incidents six months apart between two people who were partners and lived together. Otten LJ stated:

"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 section 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.
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 section 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 section 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 Road Traffic 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.