England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HHJ JOSEPH QC
T20090594

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2011

Lord Justice Hooper:

1. During the hearing we announced that leave to appeal on two grounds was refused and that we granted leave to appeal on a third ground, which we shall for convenience call the Curtis ground. Having told counsel that we granted leave to appeal on this ground, counsel adopted the arguments which they had put forward during the hearing and told us that they did not wish to add anything. We now give our conclusion on the Curtis ground and brief reasons for refusing leave to appeal on the two other grounds.
2. The appellant was convicted at Snaresbrook Crown Court on 25^th May 2010 by a jury of an offence contrary to section 4(1) of the Protection from Harassment Act 1997. The judge was HHJ Wendy Joseph.
3. The statement of offence read:

Putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997.

4. Although the statement of offence referred to harassment, section 4 is headed "Putting people in fear of violence".
5. The particulars read:

Mohammed Haque between the 3^rd day of January 2009 and the 12^th day of January 2009 caused Mohammed Nazrul Islam to fear that violence would be used against him by his course of conduct which he knew or ought to have known would cause fear of violence to Mohammed Nazrul Islam on each occasion in that between the 3^rd day of January 2009 and the 12^th day of January 2009 you sent threatening emails and letters.

6. The particulars follow the precise language of sub-section (1). Section 4 reads:

(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.

(3)     It is a defence for a person charged with an offence under this section to show that—

(a)    his course of conduct was pursued for the purpose of preventing or detecting crime,

(b)    his course of conduct 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)    the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property.

(4)     A person guilty of an offence under this section is liable—

(a)     on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or

(b)     on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

(5)     If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2.

(6)  ...  

7. It was submitted by Miss Jung, who did not appear for the appellant at trial, that the particulars should have read in order to reflect the decision in Curtis [2010] EWCA Crim 123; [2010] 1 Cr App R 31:

Mohammed Haque between the 3^rd day of January 2009 and the 12^th day of January 2009 caused Mohammed Nazrul Islam to fear that violence would be used against him by his course of conduct which amounted to harassment and which he knew or ought to have known would cause fear of violence to Mohammed Nazrul Islam on each occasion in that between the 3^rd day of January 2009 and the 12^th day of January 2009 [he] sent threatening emails and letters.

The facts

8. The complainant (Mohammed Nazrul Islam) was the appellant's older brother. Both resided in the UK. The complainant had six children including a son named Shahnoor (known as Boyan). The appellant had one son called Ethesham and had full time care of six nieces and nephews, including a niece called Shahida Aziz and a nephew called Yasin Aziz. In 2000 the mother of the complainant and of the appellant passed away and their father moved back to Bangladesh, taking their sister, Roshonara Begum (known as Yahuffu or Hufu) with him. Yahuffu, as we shall call her, is now in her mid-fifties. She suffers from chronic schizophrenia and has the mental age of a young child. She requires constant care. The father remarried a woman named Somorun Nessa, who had a young daughter called Lucky from a previous marriage. The father, Yahuffu, his wife Somorun Nessa and Lucky lived together in the family ancestral home (known as the Bari) in Banigazi, Bangladesh. The father passed away in 2006. Somorun Nessa and Lucky remained in the Bari and were responsible for Yahuffu's care. The complainant was also responsible for Yahuffu's care and he visited from the UK on a regular basis. In December 2008 the appellant and the complainant travelled separately to the Bari. Prior to meeting in Bangladesh on that trip they had not seen or spoken to each other for 7 to 8 years.
9. On 4^th January 2009, both the appellant and the complainant returned to the UK.
10. It was the prosecution's case that in the days following 4^th January the appellant was responsible for sending two letters, two emails and a number of text messages venting his anger which caused the complainant to fear that violence would be used against him.
11. The defence case was that the complainant was not put in fear of violence and had lied when he said that he was. The appellant also relied upon the statutory defence that his course of conduct was reasonable. The appellant was acting to protect his sister. Yahuffu was mentally disabled and required constant care. The complainant, so the appellant claimed, had been complicit in the mistreatment and abuse of Yahuffu by Somoron Nessa and Lucky. The appellant's reaction was reasonable in the circumstances to prevent Yahuffu from coming to any further harm. The appellant also feared that the complainant would return to the Bangladesh in order to seize control of the estate and attempt to sell parts or all of the property illegally. If the complainant succeeded in doing this, Yahuffu, so the appellant claimed, would have effectively become homeless.
12. The complainant gave evidence (from behind a screen and via an interpreter) and said that by the time his mother died the appellant was already estranged from the family. The appellant made no contact or effort to do anything following their mother's death. Their father took Yahuffu to Bangladesh to live at the Bari. In 2006 their father died and the appellant again made no contact. By 2006 the visa allowing Yahuffu to return to the UK had expired. The complainant had problems arranging a move for her but had been in touch with the embassy. The appellant played no part in the arrangements for her. He did not visit, telephone or have any other contact. Thereafter Yahuffu was cared for in the Bari by Somorun Nessa and Lucky with the complainant's support. The complainant sent money and visited once a year. On occasion, he had visited two or three times in the same year. The appellant had a feud with his parents which also involved the complainant and had split the family causing some members to side with the appellant (particularly the nieces and nephews) and some with the complainant.
13. In December 2008 the complainant visited his sister and was very surprised when the appellant arrived at the Bari three hours after he did. The appellant had not been there for over thirty years. He had not had any contact with the appellant for ten years. Relatives told the complainant that the appellant was on his way to kill him. When the appellant arrived he was very critical of Yahuffu's care even though, said the complainant, she was being properly cared for. She was not being mistreated. She had a bed and he sent money for her to be properly fed. She had not been hit by Lucky. He believed that the appellant was using Yahuffu's care as an excuse to drive him out and seize the Bari. The complainant was quite satisfied that Yahuffu was being properly cared for. That night people came to the main gate and into his room in the middle of the night. He was so frightened that he left the Bari immediately and made his way back to the UK. Upon his return to the UK he reported the threats to the police. He was told they had no jurisdiction over events that had occurred in Bangladesh.
14. On the 4^th January he received the appellant's first letter which, being unsigned, the complainant asked the appellant to sign. By the time the complainant received this letter he had already received some telephone calls from the appellant. In the first telephone call the appellant swore at him, abused him and threatened to kill him. He received another two letters. The second letter arrived on or around the 7^th January 2009. He then received a third letter which made him even more frightened. The appellant also sent a number of text messages and emails to the appellant and to Shahnoor Islam (Boyan). On the 10^th January 2009 he received a number of text messages. He said that he did not know how to handle what was happening. He said that the cumulative effect of the telephone calls, the letters and the emails, combined with the belief that his nephews were looking for him to attack him, made him very scared that violence would be used against him. People came to his door looking for him and his wife. They could not find him because he went into hiding. Upon receiving the last text message he telephoned the police at 1:28am on the 11^th January 2009. The police later came to his house.
15. The thrust of the communications between the appellant and the complainant related to the complainant's alleged treatment of Yahuffu. To prove the charge under section 4(1) the prosecution relied particularly upon the following passages in the communications:

…. if you have any or all of the above and you do not hand them over to me in the next seven days I will commence a systematic onslaught on you the like of which will make you shit your pants…"   (6 January)

… I swear on my son, no matter how many pigs you call I will come and do some serious damage to you.  If I don't find you I will look for your fake Muslim son…I don't want to kill you as it is too good for you.  I want to extract each and every teeth you have left one at a time.  Now here's the payoff, I will not be using any anaesthetic.  You fucking cunt…

… One more thing so long as Sis is or will be in the Bari you and your children are not allowed to enter the compound.  If they do I will break your fucking legs…  (10 January)

… I swear on my son, no matter how many pigs you call I will come and do some serious damage to you.  If I don't find you I will look for your fake Muslim son…  (10 January)

16. In cross-examination the complainant denied that he was sick of his sister. He would have been happier if someone else visited occasionally instead of him. When the appellant first telephoned him he swore and threatened to kill him. He was scared. He called the police because he believed the threats. He thought that the letter (dated 4^th January2009) came after the first call. He said that the allegations made in the letter dated 4^th January 2009 were untrue. As far as he was aware Yahuffu was properly cared for. He had wanted the appellant to sign the 4^th January letter. The complainant felt that he was in danger and believed the appellant was violent and he believed the threats that his life was in danger. He called the police and knew that they had arrested the appellant and warned him about his harassment. There was no abuse of Yahuffu and the appellant was just using this as an excuse. The complainant was not ashamed of his sister and had great sympathy for her. The appellant was demanding Yahuffu's passport but he did not have it. As far as he was aware it was still in the Bari. The complainant thought that it would be better if Yahuffu came to the UK. He had tried to arrange this with the Embassy but his father was anxious that she stayed with him in Bangladesh. By the time his father died Yahuffu's visa had expired, so he arranged for her to be cared for and he visited her. Her other brothers and sisters also visited her. The appellant never visited or telephoned. He was not intending to provoke the appellant. His aim was the reverse. He was scared and wanted to stay away from the appellant. The appellant's threats were not a joke. The complainant wanted to calm the appellant down but the appellant swore that he would 'finish him off' and so the complainant went to the police.
17. Boyan, the complainant's son, gave evidence which it is not necessary to set out. He was cross-examined.
18. PC Charlene Deacon gave evidence and said that on the 5^th January 2009 she interviewed the appellant. He appeared to be distraught and concerned about his sister in Bangladesh. She considered the offence of harassment but this required a course of conduct. Having discussed it with a senior colleague, it was concluded that the matter could be resolved without going through the courts. In the presence of the custody sergeant and another police officer, she advised the appellant to make no further contact with the complainant and to go to a solicitor if necessary. She advised that any further incidents could lead to an investigation of harassment.
19. PC Amelie Bartlett gave evidence and said that she and PC Peveller went to the complainant's address at 10:45am on the 11^th January 2009. They saw letters, emails and text messages. As the appellant had already been warned about his conduct on the 5^th January 2009, they went to his home address to arrest him. The appellant did not seem surprised. He said that the text messages were actually sent from his computer. The appellant was arrested for harassment. On the way to the police station the appellant said, "I've stopped now. I sent the last email yesterday." The appellant was found to be in possession of a copy of one of the letters sent to the complainant and a letter in sealed envelope that was addressed to the complainant but that had not been sent.
20. Evidence was given that the appellant was interviewed and gave an account consistent with his later evidence. The appellant was offered a caution but refused and was subsequently charged.
21. The appellant gave evidence and said that he was divorced and had one child. He worked as a documentary maker. In 2003 he took over the care of his six nieces and nephews. The complainant was two years older than him. They both lived in London. Their mother died several years earlier and their father then took their disabled sister to Bangladesh. The complainant brought Yahuffu to the UK in 2002 and retuned her to his father on 2003. When she was in the UK Yahuffu was diagnosed with schizophrenia, she had the mental age of a young child. His father had remarried.
22. He went to the Bari on the 17^th December 2009 to see Yahuffu. It was his first trip in thirty years. He had not seen Yahuffu for many years. He described the Bari as dilapidated, run down, dingy and dirty. He had not expected it to be so bad. He arrived at 12:45pm and saw the complainant briefly. He had not seen the complainant for many years. The appellant saw Yahuffu and she looked white and frail. He assumed that she was being cared for but felt guilty that he had not seen her for so long. He was very concerned about her physical condition. The appellant had heard from relatives that Yahuffu was being physically abused by his father's second wife. His trip lasted ten days. Upon his return to the UK he was concerned about how he could get Yahuffu back to the UK so that he and his nephews and nieces could care for her. Her right to re-enter had expired as she had lived overseas for more then two years, he did not know her date of birth and did not have any information abut her. He knew that she had hospital records in the UK and that Tower Hamlets and the police had been involved with her, but thought that the first thing was to get her date of birth and her passport.
23. He decided to communicate with the appellant and sent the letter of the 4^th January 2009. After receiving the letter Boyan telephoned the appellant, and kept on telephoning him, to get him to sign the letter. The appellant said that he would sign the letter in front of police officers. The appellant went to the police station but the police were very bemused. The appellant could not work out how to get his sister to the UK and how to get her passport and date of birth. The complainant was deliberately obstructing him as he did not want anyone to find out how she was stuck in Bangladesh. He thought that the complainant was reluctant to hand over the details for Yahuffu because he was claiming disability allowance in her name. The appellant sent the letter to the complainant because he wanted to care for Yahuffu in the UK or Bangladesh. The appellant did not threaten to kill him whilst on the phone but he did scream at him and swear.
24. PC Deacon spoke to the appellant on the 5^th January 2009. The appellant was taken to the police station and kept there for twelve hours. The police told him that they were taking no further action and suggested that he spoke to a solicitor. He was not warned about his future conduct or that it could amount to harassment if he did it again. He was released for the police station and later he wrote another letter. He sent the letter by recorded delivery. He had been finding it difficult to confirm Yahuffu's date of birth and he believed that the complainant would know it. He asked Yasin Aziz to ask Boyan for it. Boyan had said that they had decided not to tell him. This made the appellant frustrated, not angry. He thought the complainant wanted him to react and so he decided to write the second letter. The appellant wrote another letter but did not know if it was delivered. The appellant did not believe that the complainant was scared of him. When the appellant referred to his rearranging his face he was simply expressing anger and frustration. He regarded the text messages sent by the complainant as provocative.
25. In cross-examination he said that his sister Salma had visited Bangladesh twice and told him that the complainant was visiting frequently and living with their father's second wife. Salma's last visit was in July 2008 and she told him that he should go and see Yahuffu. He went in December 2009 having seen a photograph of Yahuffu. He accepted that the complainant was Yahuffu's primary carer and that the complainant sent money out but the money, said the appellant, was not for her care.
26. Shahida Aziz, the appellant's niece, gave evidence and said that she had lived with the appellant all of her life. There was bad feeling between the appellant and the complainant. She did not believe that the complainant would ever threaten violence. She said that the appellant was very distressed when he came back from Bangladesh and could think of nothing but his sister. She had seen the first letter before it went to the complainant. She called her uncle the complainant 'weak and pathetic'. She insisted that the appellant threatened no violence. She said that the complainant was 'playing the victim'. On the 9^th January 2009 she had been at the appellant's house with other family members as it was the appellant's birthday. She telephoned the complainant. His tone was very quiet. He said that he was on his way to the Mosque and that he would call her back. He then sent her a number of text messages. She replied to the complainant. She told him that he was lying and questioned what he had said. She showed the text messages to the appellant and other family members. She regarded the text messages sent by the complainant to her as provocative.

The Protection from Harassment Act 1997

27. Section 1 of the Act headed "Prohibition of harassment" reads, as amended:

(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.

(1A)     A person must not pursue a course of conduct—

(a)    which involves harassment of two or more persons, and

(b)    which he knows or ought to know involves harassment of those persons, and

(c)    by which he intends to persuade any person (whether or not one of those mentioned above)—

(i)     not to do something that he is entitled or required to do, or

(ii)    to do something that he is not under any obligation to do.

(2)     For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.

(3)     Subsection (1) or (1A) 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.

28. Section 2 creates the offence of harassment:

1)     A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.

(2)     A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both

29. Section 3 creates a civil remedy. It is important in the appeal because cases which we shall have to look at later in the judgment were civil not criminal cases. Section 3(1) reads:

(1)     An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

Section 3 also provides that is an offence to breach an injunction granted under section 2.

30. We have already set out section 4, headed, as we have said: "Putting people in fear of violence". The word "harassment" does not appear in section 4.
31. Section 5(1) and (2) provide:

(1)     A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence 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 . . . conduct which—

(a)     amounts to harassment, or

(b)     will cause a fear of violence,

prohibit the defendant from doing anything described in the order.

32. Section 7 reads:

(1)     This section applies for the interpretation of sections 1 to 5A.

(2)     References to harassing a person include alarming the person or causing the person distress.

(3)     A "course of conduct" must involve—

(a)     in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or

(b)     in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons.

(3A)     A person's conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another—

(a)    to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and

(b)    to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.

(4)     "Conduct" includes speech.

(5)     References to a person, in the context of the harassment of a person, are references to a person who is an individual.

Ingredients of the offence against section 4(1) charged against the appellant

33. There is no dispute that the prosecution had to prove and had proved that there had been a course of conduct on the part of the appellant.
34. The prosecution had to prove that the course of conduct had caused the complainant to fear on at least two occasions that violence would be used against him. The appellant disputed that the complainant feared, and had been caused to fear, that violence would be used against him.
35. The prosecution then had to prove that the appellant knew or ought to have known that his course of conduct would cause the complainant to fear violence on each of those occasions. This was also in dispute.
36. The jury must have been sure that these ingredients had been proved.
37. It is submitted on behalf of the appellant that additionally the prosecution had to prove that the course of conduct amounted to harassment. This point was not taken at trial. Given the definition of harassment in section 1 and given that by virtue of section 7 "References to harassing a person include alarming the person or causing the person distress", proof of the offence against section 4 would seem necessarily to involve proof of harassment within the meaning of section 1. But, so it is submitted, the courts have added further ingredients to the definition of harassment in section 1 and the prosecution must therefore prove those additional ingredients. This argument, so it is said, was accepted by another Division of this Court in Curtis and, so it is said, we are bound by Curtis.
38. It is this argument which led us to grant leave to appeal. We look later in this judgment as to what those added further ingredients are said to be.
39. If the prosecution prove the necessary ingredients then it is a defence for the appellant to show on the balance of probabilities that the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property. The appellant's defence was that he pursued the course of conduct in order to protect his sister. The course of conduct the pursuit of which the appellant must show is reasonable is the course of conduct which caused the complainant to fear that violence would be used against him on at least two occasions and which the appellant knew or ought to have known would cause the complainant to fear violence on each of those occasions.
40. Given the violent nature of the threats, the appellant would have faced an uphill task in showing that it was reasonable to purse the course of conduct which he did. It is difficult to see how it is reasonable to threaten violence of the kind threatened by the appellant in this country in order to protect Yahuffu in Bangladesh from the (alleged) conduct of the complainant.

Lesser offence

41. As we have seen, section 4(5) provides that if on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2.
42. In the instant case the judge left the section 2 offence to the jury should they acquit the appellant of the section 4 offence and directed them about the ingredients of the section 2 offence.

Curtis

43. We take the facts from the Criminal Law Review Report [2010] Crim LR 638:

C was convicted of putting a person in fear of violence by harassment (Protection from Harassment Act 1997 s.4(1)) and causing danger to road users (Road Traffic Act 1988 s.22A(1)). The prosecution was based on six incidents [over a period of some 9 months] which occurred while C and the complainant [both police officers] were living together. It was alleged that C followed a course of conduct in which he used or threatened violence against the complainant which caused her to fear that violence would be used against her and that C knew or ought to have known that his course of conduct would cause her so to fear. In one incident C and the complainant were travelling in a car; the complainant said that while she was driving at about 60mph, C pulled the handbrake putting the car into a skid. C accepted that there were a few sporadic incidents in the course of a volatile relationship, but denied that there was any nexus or connection with the incidents which allowed them to be described as a course of conduct. There were arguments because C conducted long telephone conversations with his wife. The complainant 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. The judge, while rejecting a submission of no case to answer, referred to the "insecurity on both sides" and that "both were being somewhat childish … 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."

44. The Court, presided over by Pill LJ, quashed the convictions.
45. Pill LJ, having set out the facts and the arguments, said the "course of conduct" referred to in section 4(1) is a course of conduct which amounts to harassment. It followed that the prosecution had to prove that the defendant had harassed the complainant. Pill LJ said:

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).

46. The Court is here giving three reasons for the conclusion that the prosecution has to prove that the defendant had harassed the complainant, all three of which are relied upon by Miss Jung.
47. First, the Court is saying that the words "course of conduct" in section 4(1) is a course of conduct which amounts to harassment within the meaning of section 1. We respectfully doubt whether the words "course of conduct" in section 4(1) have to be interpreted in this way. Secondly, the court was influenced by the title of the Act. However the title of the Act refers to both harassment and similar conduct. Additionally section 5(2) (paragraph 31 above), not referred to by the Court, draws a distinction between conduct which amounts to harassment and conduct which will cause a fear of violence. Thirdly the Court supports the conclusion by the existence of the provision enabling the jury on a trial on indictment, to find a defendant guilty of an offence under section 2, as an alternative, on a charge under section 4. It could perhaps be said, on the other hand, that if proof of a section 2 offence was a prerequisite to proving a section 4 offence, a section 2 offence would be an "included" offence and section 4(5) would not be necessary in the light of section 6 of the Criminal Law Act 1967.
48. Having looked at the summing-up, Pill LJ in Curtis went on to say:

23. ... but they were not directed that it was necessary for the prosecution to establish that the course of conduct amounted to harassment.

49. In the next paragraph Pill LJ said:

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.

50. Ms Fawcett made the same argument to us.
51. The argument seems to us to be right (see paragraph 37 above) unless there are additional non-statutory requirements which the prosecution must prove when a person is charged with harassment contrary to section 2.
52. Having made reference to Pratt v DPP [2001] EWHC Admin 483 and Henley^[1] 11 February 2000; [2000] 3 Archbold News, both of which were primarily concerned with what constitutes a course of conduct, Pill LJ went on to say:

26. The importance of these issues should not, however, deflect from the need to establish, as was accepted in Pratt, that the relevant course of conduct amounts to harassment.

53. However, Pratt was a section 2 case and not a section 4 case.
54. Pill LJ considered Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224, an employment case, in which Lord Nicholls said in paragraph 30:

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 sustain criminal liability under section 2.

55. Pill LJ in Curtis continued:

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."

56. We should add that section 3 which creates the civil remedy requires proof of an actual or apprehended breach of section 1.
57. A little later Pill LJ in Curtis said:

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 [the complainant]. 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.

58. It could be said with some force that the Court in Curtis reached the conclusion which it did on the conventional ground that the prosecution had failed to prove a course of conduct. On the other hand the Court is making it very clear that it is necessary for the prosecution in a section 4 case to establish that the course of conduct amounted to harassment within the meaning of section 1. Whilst we might have been inclined to conclude that the conclusion that it is necessary for the prosecution in a section 4 case to establish that the course of conduct amounted to harassment within the meaning of section 1 was obiter, we feel unable to do so, particularly in the light of Widdows [2011] EWCA Crim 1500. The judgment in that case was handed down on 21 June 2011, seven days after the hearing of the appeal in this case. We are very grateful to Professor Ormerod for drawing it to our attention. We have decided that is not necessary to call for further argument.
59. Widdows was convicted of putting a person in fear of violence by harassment contrary to section 4 of the Protection from Harassment Act 1997. He was also charged with two counts of rape, of which he was acquitted.
60. We take the facts from the judgment of Pill LJ:

4. Between August 2008 and March 2010, the appellant and the complainant, Sarah Bunn, were involved in a volatile relationship and lived together. They separated on many occasions during that period but reunited after a few hours or days. During separations, the appellant would stay with an elderly friend called Daphne. The charge under section 4 was based on six incidents between January 2009 and March 2010. The rapes were alleged to have occurred during the final incident on 6 March 2010. In his summing up, the judge summarised the evidence about the incidents in considerable detail. The complainant was a mature woman in good employment but was emotionally vulnerable.

61. A little later in the judgment Pill LJ said:

25. Curtis was not cited to the judge. It has much in common with the present case; a volatile relationship, six incidents in that case over a four month period, outbursts of ill-temper and bad behaviour interspersed in considerable periods of affection.

62. Pill LJ went on to say that Curtis was indistinguishable. He continued:

29. … When bringing a charge under section 4 the prosecutor (and the judge when summing up) should have in mind the concept of harassment which is at the core of the 1997 Act, though the word is not used in section 4 and the explanation of harassment in Majrowski "stalkers, racial abusers, disruptive neighbours, bullying at work and so fourth" and in Thomas, where the practice of stalking was said to be a prime example. The section is not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in a long and predominantly affectionate relationship in which both parties persisted and wanted to continue.

30. … Description of a number of acts of violence spread over nine months during a close and affectionate relationship does not satisfy the course of conduct requirement or the requirement that it is conduct amounting to harassment.

63. Again it could be said with force that Widdows is deciding no more than that the prosecution had failed to prove a course of conduct. But in Widdows Pill LJ also said:

26. In Curtis, the court found, at paragraph 31, that it must be established that the course of conduct was conduct amounting to harassment as defined in the authorities: Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224, Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, R v Hills [2001] 1 FLR 580 were cited

64. Miss Jung submits that we should follow Curtis (and now Widdows) and decide that a prosecution under section 4 requires proof of harassment and that the prosecution must therefore prove, in addition to the statutory requirements, the requirements identified in the civil cases to which Pill LJ referred.
65. The decision in Curtis attracted a critical commentary from Mr James Richardson QC in the Criminal Law Week, Issue 20, 2010 page 2:

This decision is best explained by the court's obvious disdain for the criminal law being brought to bear on six incidents in a relationship between a couple (both police constables) who lived together for about 18 months, where the incidents were spread over a nine month period, and consisted of "spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides…interspersed…with considerable periods of affectionate life" (see [32])

Whilst the court's approach may be understandable, its analysis of the legal position is unsustainable.  If it had ruled that no reasonable jury could have concluded that six incidents spread out over nine months could amount to a "course of conduct", that would have been one thing, but it did not do so.  All the judge had done wrong was to omit to direct the jury that the course of conduct pursued by the defendant had to amount to harassment.  Since, however, the jury by their verdict found that the defendant had pursued a course of conduct that had put the complainant in fear of violence on at least two occasions, they must inevitably have found that he pursued a course of conduct that amounted to harassment, as the Act specifically states that "harassing a person [includes] alarming the person or causing the person distress" (s.7(2) Archbold 2010 § 19-277g).  It is inconceivable that the jury could have concluded that the complainant was caused to fear violence at the hands of the defendant without being caused either alarm or distress.  The Act is constructed on the basis that the greater includes the less, which is why a conviction of the lesser offence of simple harassment is an available alternative to an allegation under section 4 (s.4(5)).  A person who pursues a course of conduct (question of fact) which amounts to harassment of another (question of fact but includes alarming or distressing the other) is guilty of the basic offence (s.2).  If his course of conduct causes his victim not just to be alarmed or distressed, but to fear violence on at least two occasions, then he is guilty of the aggravated offence (s.4).  Like it or not, that is what the jury were satisfied of in this case.

66. The problem with this criticism is that it does not deal with the additional non-statutory requirements to which Pill LJ referred.
67. Professor Ormerod's commentary in the Criminal Law Review was slightly sceptical rather than critical. Professor Ormerod thought that the Court's conclusion "sits more comfortably with the fact that s.2 is an included alternative offence". He does not find the tests to be found in the civil cases very helpful. He wrote:

The simple offence of harassment under s.2 of the Act requires, inter alia, (1) a course of conduct (2) which must amount to harassment of another. The more serious offence under s.4 requires that the victim is caused, by the course of conduct, to fear violence on at least two occasions. The court concludes that the s.4 offence requires proof also that the course of conduct has to amount to harassment. Section 4 does not expressly require that the course of conduct which causes the victim to fear violence constitutes harassment. Section 4 contains the stricter limitation that the course of conduct has to cause fear (it being insufficient even to frighten the victim as to what might happen (Henley)). Arguably s.4 represents a distinct offence focused not on harassment, but on the graver wrong of creating fear of violence. However, the court's preferred interpretation is one which construes s.4 in the broader context of the Act and sits more comfortably with the fact that s.2 is an included alternative offence. Furthermore, it is consistent with the approach that seems to have been taken in previous authorities holding that the victim has been put in "fear of violence by harassment ", such as Patel [2004] EWCA Crim 3284; [2005] 1 Cr. App. R. 27 (p.440) (emphasis added). Holding that the s.4 offence does not also require the course of conduct to constitute "harassment" would only be of practical significance if there are circumstances in which two or more incidents with a sufficient nexus caused a fear of violence without also being harassing. That would seem unlikely. On the relationship between ss.2 and 4 see generally the critique by E. Finch, "Stalking the Perfect Stalking Law: an Evaluation of the Efficacy of the Protection from Harassment Act 1997" [2002] Crim. L.R. 703.

In this case, the jury received adequate direction on the need for a "course of conduct", with the judge mentioning it no fewer than 29 times. The course of conduct must involve conduct on two or more occasions and there must be some nexus between them. The question of whether the incidents are sufficiently related to constitute a course of conduct has given rise to numerous appeals: Patel; Pratt v DPP; Lau v DPP [2000] Crim LR 580 DC; Hills [2001] 1 F.L.R. 580; [2001] Crim. L.R. 318 CA (Crim Div). That question turns on the facts of each case. Although there is no need for the events to be close in time or similar in nature, these are factors which are relevant, with others, in determining whether there is a sufficient nexus. In this case the Crown alleged that the nexus was that the complainant stood up to C when he threatened or used violence. Is there really any link here beyond the fact that the incidents involve the same victim?

The judge did not direct on the need for the course of conduct to amount to "harassment". There is no statutory definition of that term. The failure to define in the 1997 Act was intentional; the Act was designed to tackle "stalking", which can take many forms, some of them wholly unpredictable. In addition, the word "harassment" had been used in the Public Order Act 1986 and was familiar to the criminal courts. In this case, the court rejected the argument that by causing V fear by his course of conduct C had harassed her. Having referred to civil authorities and the dictionary definition, the court concludes that the additional element of harassment requires proof that "the conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive" (at [21]). With respect, it is not clear that this assists. There is, surely, an element of circularity in saying that a course of conduct amounts to a crime of harassment if it is so unacceptable to be criminal. Nor, it is submitted, is it tremendously helpful to define the concept by reference to whether it is "oppressive and unreasonable".

The principal lesson of this case seems to be about the correct selection of charges. There are numerous types of offence where prosecutors might be tempted to try to elevate what look like plain assaults into something more. The same problem arises with some prosecutors trying to charge public order offences such as affray for what are mere assaults. Section 4 may be wider than common assault in terms of mens rea and because there is no need for the fear of immediate violence, but it has other restrictions.

Note also that whereas in this case numerous incidents are relied on and there are allegations of other offences, it is permissible to rely on the facts of those other alleged offences as forming part of a course of conduct amounting to harassment provided the Crown makes clear the nature of the allegations (Jones v DPP [2010] All E.R. (D) 230 (Feb)).

68. We have looked at Patel. As in this case the statement of offence referred to harassment. Apart from that Patel does not seem to us to help.
69. Whilst accepting, as we must, that section 1 is so broadly defined that it may be necessary to import non-statutory requirements into the definition of the offence, we would, but for Curtis and Widdows, have taken the view that the section 4(1) offence is a freestanding offence and does not require proof of harassment. It would then follow that the statement of offence should not refer to harassment.
70. However, we have reached the conclusion, not without some reluctance, that we must follow Curtis and Widdows with the result that a prosecution under section 4 requires proof of harassment and that the prosecution must prove, in addition to the statutory requirements, the requirements identified by Lord Phillips MR in Thomas v News Group Newspapers Ltd, which we have set out earlier in paragraph 55.
71. The first of those requirements is that the conduct must be targeted at an individual. That requirement, on the facts of this case, adds nothing to what the prosecution had to, and did, prove.
72. The second of those requirements is that the conduct must be calculated to produce the consequences described in section 7 (alarming the person or causing the person distress). Conduct would, it seems to us, to be calculated to produce the consequences described in section 7 if the defendant intended to alarm the complainant or cause him distress (or, perhaps, was reckless as to the consequences). Section 4 requires proof that the defendant knew or ought to have known that his course of conduct would cause the complainant to fear violence. The jury in the present case not having been directed, in accordance with Curtis, that they must be sure that the defendant intended to alarm the complainant or cause him distress, is the conviction safe? In our view it is. We take the view, contrary to the submissions of Miss Jung, that it is inconceivable that the jury (given their other conclusions) would not have been sure that the appellant intended to alarm or distress the complainant in order to achieve his stated objective of protecting Yahuffu. Unless he at least alarmed or distressed the complainant, the appellant would, on his account, have been unable to achieve his objective.
73. The third of those requirements is that the conduct must have been oppressive and unreasonable. The appellant's conduct must, on the jury's findings, have been oppressive. Miss Jung submits that the prosecution must prove that the conduct was unreasonable. This cannot be right in the light of section 1(3), which provides that the defendant must show that his conduct was reasonable.
74. Miss Jung also submits that that the jury would have been entitled to find an absence of the additional non-statutory requirements because of the alleged provocation on the part of the complainant. Whilst provocation might possibly be relevant to the issues of causation and reasonableness, both of which were left to the jury, we do not accept that it has any further relevance at trial stage.
75. For these reasons this ground fails.

The refused applications for leave to appeal

76. The appellant seeks leave to rely on fresh evidence to undermine the conviction.
77. Miss Jung first took us to two statements, one made by Shomila Begum, one of the appellant's first cousins who lives in Banigazi. She alleges that the complainant is a criminal, who has sexually abused young girls including Lucky and has stolen Yahuffu's passport. The other was made by a nephew of the appellant, Shakerul Islam. He also attacks the character of the complainant. The account that they give reflects the evidence that the appellant gave at trial to undermine the prosecution's case that the complainant did fear violence and to support the appellant's case that his conduct in communicating with the complainant by letter and email in the way that he did was to protect his sister and was thus reasonable.
78. There is no reasonable explanation for the failure to adduce the evidence at trial. The appellant described to the jury what he understood was happening in Bangladesh – if he wanted to back that up with evidence from Bangladesh then he should have done that at trial. Nor do we think that it would now be in the interests of justice to introduce this evidence (for which in any event permission would be required under the bad character provisions of the Criminal Justice Act 2003) which is not of central significance to the real issues in the trial.
79. The appellant seeks also to rely on statements of Ethesham Haque and Yasin Aziz, respectively the son and nephew of the appellant both of whom were not only available to attend the trial but, we are told, did so. To the limited extent that the evidence could be regarded as relevant, it should have been called at trial.
80. Finally the appellant seeks to rely on two police reports from Pakistan. One is to the effect that the complainant made an accusation and that the officer went to "the place of occurrence" and the appellant gave an account of his sister not being cared for properly. The other concerned an investigation into an allegation made by Somorun Nessa (the appellant's stepmother) against amongst others the appellant. The report merely reports what the officer was told by those he saw.
81. Neither report adds anything of value to the case which the jury had to consider.

Unbalanced and unfair summing-up

82. It is submitted by Miss Jung, who, as we have said, was not trial counsel, that the summing-up was unbalanced and unfair in a number of ways. Trial counsel at the conclusion of the summing-up made only one small comment on the summing-up when asked by the judge whether he had anything to say about it.
83. Miss Jung rightly abandoned an argument that the judge's behaviour was such as to deny the appellant a fair trial.
84. Miss Jung makes a large number of points, only some of which we need to examine.
85. She submits that it was the main thrust of the defence case that the complainant was a cunning and manipulative character who had deliberately provoked the appellant into making threats on paper and that he was playing the victim in order to get the appellant convicted.
86. If this was or may have been right then the complainant would not have feared, or have been caused to fear, that violence would be used against him. That issue was left fairly and squarely to the jury.
87. Miss Jung submits that the judge did not refer to a number of matters which tended to support the appellant's case that the jury could not be sure that the complainant feared, or had been caused by the appellant's course of conduct to fear, that violence would be used against him. She makes reference to the following:

The fact that Nazrul Islam had not at any time phoned his younger brother to tell him that he did not have the passport or to speak to him in an attempt to resolve the situation;

The fact that Nazrul Islam wanted all communications (such as from Shahida Aziz) in written form without any good reason;

The fact that Mr. Haque had no reason to want to kill his own brother or to make serious false allegations about him;

That Mr. Haque, a man of previous good character, was Mr. Islam's younger brother and that he had never previously been violent towards him.

88. We see nothing of merit in this point. The judge did, of course, give a good character direction.
89. Miss Jung submits that the judge generally did not pay enough attention in his summing up to the appellant's case. We do not agree.
90. Miss Jung submits that:

... the learned judge minimised the importance of the defence case by remarking as follows, at pp.41H-42B of the Summing Up:

"She (Shahida) insisted the defendant threatened no violence. She said, 'Nazrul is playing the victim.' That is an expression that I think, it is a matter entirely for you, was also used by the defendant. What you make of that is a matter entirely for you."

91. The appellant had used the word "victim" in the correspondence with the complainant. We see nothing wrong with the judge's comment.
92. Miss Jung criticises the way that the judge dealt with the letters and emails, not mentioning those parts which tended to support the appellant's case as to why he needed to write, namely to ensure the protection of his sister in Bangladesh. We have read the summing up (see e.g. pages 36, 46 and 48) and that, in our view, is not a good point.
93. Miss Jung criticises the fact that the judge used the word "sure" when she said that the defence had to make the jury sure on the balance of probabilities. It is true that the judge did use the word sure on more than one occasion and in the written route to verdict in this context and it would have been better if she had not. But she also used the word "conclude", "think" and "satisfied" in the summing up and explained what the balance of probabilities meant. The use of the word "sure" could not possibly make the conviction unsafe.
94. Miss Jung makes a general complaint that the judge gave insufficient help about the defence of reasonableness. Both in her oral and written directions the judge properly defined the defence and told the jury, as they would have known anyway from speeches, that the appellant was claiming that he wrote the letters and emails in order to protect his sister.
95. Miss Jung also criticised the direction at page 9 that the jury need not be concerned with the issue of whether the sister had been assaulted or whether she had ever been abused. This, so it is said, was an important issue with regard to the statutory defence relied upon by Mr Haque. Almost all of the evidence to support the allegation that the complainant had mistreated the sister was challenged hearsay in the context of a very divisive family dispute. The judge in our view was right to invite the jury to concentrate in the context of the statutory defence on the appellant's claim that he believed that she had been mistreated, a claim which was supported by the contents of the letters and emails, by the evidence of the appellant and of Shahida Aziz.
96. Miss Jung criticises amongst other things the fact that at page 32B-C, the judge summed up that Yahuffu had denied being mistreated. In evidence the appellant in fact said that although she at first denied everything, she did remember that she had been assaulted when a nephew who actually witnessed her being struck asked her 'don't you remember when Lucky smacked you?' The respondent accepts that the appellant gave this evidence. We note that counsel for the appellant did not raise this matter with the judge at the end of the summing-up, suggesting that it was not of importance in the context of the case as a whole.
97. In conclusion we have read the summing-up and found it to be fair and well balanced in the context of the issues which the jury had to resolve. The judge sensibly divided her summing up in such a way that each event was dealt with separately, the jury receiving a summary of the evidence coming from both parties as it related to each event. The judge did not simply read from her notebook. She structured the summing up very well.
98. It is for these reasons that we rejected the two grounds for which leave to appeal was sought.

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