England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		21st June 2001

1. LORD JUSTICE LATHAM: On 24th October 2000 the appellant was convicted of an offence contrary to section 2 of the Protection from Harassment Act 1997 by the Justices of the Peace Berkshire. The offence is created by the provisions of the Act as follows:

"1(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 another.

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

...

2(1) A person who pursues a course of conduct in breach of section (1) is guilty of an offence...

...

7(2) References to harassing a person include alarming the person or causing the person distress.

(3) A 'course of conduct' must involve conduct on at least two occasions.

(4) 'conduct' includes speech..."

2. The facts found by the magistrates which resulted in the conviction of the appellant were as follows. The appellant and his wife were living in the matrimonial home at the end of 1999 and the beginning of 2000, although the marriage had deteriorated to the point where there were proceedings which resulted in the appellant giving an undertaking on 14th January 2000 at Slough County Court not to use or threaten violence against his wife and not to intimidate, harass or pester her. Later, divorce proceedings were commenced by the wife in February or March of 2000.
3. The magistrates, having heard evidence, concluded that on 25th December 1999 the appellant tried to start an argument with his wife, followed her into the kitchen, where he threw a beaker of water over her. Then on 17th March 2000 he chased his wife through the house and up the stairs, swearing and repeatedly questioning her.
4. The magistrates concluded that the two incidents to which I have referred amounted to a course of conduct contrary to section 2(1) of the Protection from Harassment Act 1997, and they further concluded that the appellant knew or ought to have known that such conduct amounted to harassment because it took place against the background of the breakdown of the marriage and the later incident took place in breach of the undertaking to which I have referred.
5. The questions for the opinion of this court are firstly whether the justices were correct in law in finding that the incidents of 25th December 1999 and 17th March 2000 amounted to a course of conduct; and secondly, whether the justices were correct in law in concluding that the appellant knew or ought to have known that his conduct amounted to harassment because it took place against the background I have described.
6. As to the first question, it is submitted on behalf of the appellant that although two incidents can amount to a course of conduct, it cannot properly be said that on a proper construction of the Act as applied to these facts the appellant could have been found guilty of a course of conduct by reason of the distance in time between these two incidents and the lack of any sufficient connecting factual detail to suggest that the two amounted to behaviour which was akin to, as the appellant submitted, stalking, which was, in his submission, the mischief to which these provisions were originally directed.
7. Mr Woodhouse, on behalf of the appellant, has referred us to the decision of the Court of Appeal in the case of R v Hills [2001] FLR 580. In that case the court had to consider the conviction of an appellant for offences under this Act which were based upon two incidents of assault in April and October 1999 in the context of criminal proceedings in which other significant criminal offences were said to have been committed. The court referred to the passage in Archbold: Criminal Pleading, Evidence and Practice, which was current at that time, which read as follows:

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

8. The court considered that this provided a useful background against which to determine how the phrase "a course of conduct", which is the essence of the offence, should be construed and applied in relation to the facts of the particular case. It concluded that, on the papers as originally presented to the court, the assaults appeared to be linked rather than constituting separate and isolated incidents. But when the complainant gave evidence, she was vague as to dates, and under cross-examination her accounts of various incidents of violence were irreconcilable with her previous evidence. Accordingly, the court came to the conclusion that properly considered in the context of the provisions of this Act, the two incidents of violence were in fact two separate incidents of violence and that there was no appropriate or sensible causal connection which could justify the conclusion that they were connected so as to amount to a course of conduct. At paragraph 31, Otton LJ said this:

"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 1997 Act was intended. That is not to say that it is never appropriate so to charge a person who is making a nuisance of himself to his partner or wife when they have become estranged. However, in a situation such as this, when they were frequently coming back together and intercourse was taking place (apparently a video was taken of them having intercourse) it is unrealistic to think that this fell within the stalking category which either postulates a stranger or an estranged spouse. That was not the situation when the course of conduct relied upon was committed."

9. The second case to which we have been referred on behalf of the appellant is the case of Lau v Director of Public Prosecutions [2000] 1 FLR 799. On that occasion the appellant had been convicted of an offence under the Act as a result of two incidents which had taken place four months apart. The position was that the complainant and the appellant had in fact had a relationship with each other which had broken down. The two incidents occurred on either side of the breakdown of that relationship. The first incident occurred when the appellant struck the victim; but it was unclear in precisely what circumstances that incident arose, and the relationship continued. After the relationship had broken down, she was with her new boyfriend when they met the appellant; and the appellant threatened the new boyfriend with two bricks. The magistrates concluded that the offence had been made out. Schiemann LJ, in his judgment, said as follows (page 801G):

"As it seems to me the root question on which the magistrate ought to have concentrated is whether or not, bearing in mind that he only found two of the incidents proved, separated as they were by some 4 months (one being a slap of the complainant and the other being a threat directed at the complainant's boyfriend in her presence) and in the absence of any other relevant finding, that can reasonably be described 'as a course of conduct' by the defendant. If that had been the question posed to us, for my part I would have answered it in the negative.

I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made. One can conceive of circumstances where incidents, as far apart as a year, could constitute a course of conduct and harassment. In argument Mr Laddie put the context of racial harassment taking place outside a synagogue on a religious holiday, such as the day of atonement, and being repeated each year as the day of atonement came round. Another example might be a threat to do something once a year on a person's birthday. None the less the broad position must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct."

10. In my view these propositions accurately set out the law and the cautious approach that any court should adopt where the allegation of harassment is based upon either two incidents or any other series of incidents, if few in number and widely spaced in time. The issue for the court is whether or not the incidents, however many they may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct.
11. In the present case, the background seems to me to have justified the justices' conclusion. The background as found by the magistrates was that both incidents occurred when the parties had in effect been separated but were unhappily still living under the same roof, that their relationship had deteriorated to the extent that the appellant had acted as found by the justices on 25th December 1999, and the wife had taken proceedings which resulted in the appellant giving the undertaking he did on 14th January, and that there was thereafter no change in those circumstances. In other words, they still remained under the same roof and in a state of deteriorating relationship throughout the period until the commission of the second incident on 17th March 2000, which appears to me to have sufficient similarity in type to the incident on 25th December to justify the conclusion that the two incidents could be said to amount to a course of conduct.
12. I would, however, say one word of caution. This case is one which is close to the borderline; and it seems to me that prosecuting authorities should be hesitant about using this particular offence in circumstances such as this where there are only a small number of incidents. They should ensure that what they are seeking the court to adjudicate upon can properly fall within the category of behaviour which is behaviour causing harassment of the other, not merely that there have been two or more incidents. The mischief which the Act is intended to meet is that persons should not be put in a state of alarm or distress by repetitious behaviour.
13. As to the second question, it was submitted on behalf of the appellant that in addition to the justices being wrong as a matter of law in concluding that the two incidents amounted to a course of conduct, they were also wrong in coming to the conclusion that the appellant knew or ought to have known that his conduct amounted to harassment. If one bears in mind that references to harassing a person include alarming or causing distress to that person, it is not surprising that, in the circumstances as found by the magistrates, they concluded that that element of the offence had been made out.
14. Accordingly, it seems to me that the appeal should be dismissed.
15. MR JUSTICE FORBES: I agree.
16. LORD JUSTICE LATHAM: Mr Causer, are there any applications?
17. MR CAUSER: My Lord, in view of the fact that the applicant is legally aided, I do not make an application.
18. LORD JUSTICE LATHAM: Simply appeal dismissed, and the answer to each of the questions is "yes".