England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICEError! Reference source not found.
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		28th June 2002

1. LORD JUSTICE ROSE: The Director of Public Prosecutions appeals by way of case stated against a decision of District Judge (Magistrates' Court) John Foster, at Kingston upon Hull on 19th December 2000. The respondent, who had originally been charged with offences contrary to section 5 of the Public Order Act 1986, was charged in these terms:

"Between 22 June and 20 July 2000 at Grimston in East Yorkshire pursued a course of conduct which amounted to the harassment of the employees of B&K Universal Group Ltd and which you knew or ought to have known amounted to the harassment of him in that on 23 June 2000 you were abusive towards B&K Universal Group Ltd employees and filmed them and their vehicles going in and out of the said premises, and on 19 July 2000 you were further abusive towards the said employees. Contrary to s2(1) and (2) of the Protection from Harassment Act 1997."

2. Following a two-and-a-half day trial the District Judge upheld a submission that there was no case to answer.
3. The facts, so far as they are presently relevant, can be briefly identified. The allegation by the prosecution was that on the two separate occasions identified in the charge, the respondent had been outside the premises of B&K in Grimston and had so acted, by the use of a camera pointed in the direction of B&K employees entering the site, and by making remarks to those employees of an allegedly abusive kind, as to give rise to an offence contrary to section 2. It was not in dispute that the defendant was present at the site on both dates, had a camera and shouted at people entering the premises, or at people working within B&K's grounds. It was not disputed that the defendant was an animal rights protestor who had been present on many occasions in the vicinity of that site conducting protests. It was not disputed that none of the prosecution witnesses had been present on both dates on which the prosecution alleged the course of conduct amounting to harassment occurred. It was not disputed that many of B&K's employees were not present on either of those two occasions.
4. The overview of the evidence, as the case stated described it, referred to a number of B&K employees arriving at the premises on 23rd June and being shouted at by the respondent and others, and the respondent holding the camera, although it seems it did not contain any film. The staff concerned reacted in a variety of ways: some felt threatened, frightened or very upset; some smiled sweetly and waved; some felt annoyed, and some were not bothered by this "annoying little person".
5. On 19th July the respondent and others were close to the perimeter fence. On that occasion the respondent, using a megaphone, shouted abusive and threatening remarks which were heard by a number of the prosecution witnesses who were in B&K's grounds. One of those witnesses gave no description of the effect of that on him; one said she was not very happy; one said he thought he was being shouted at and went inside where he could not hear the shouting, and one said he felt he was being personally abused.
6. A submission was made at the close of the prosecution case that the charge was defective because it did not identify the individual complainants and was bad for duplicity. Furthermore, it was said there was no case to answer, even if the prosecution case were taken at its highest. The response of the prosecution was that there was no requirement in the Protection from Harassment Act to name the object of the alleged harassment, and that B&K's employees were, within the terms of the authorities to which I shall come, a close knit, easily definable group, in that they were all employees of the company at a single, geographically - isolated location. There was a case to answer because the behaviour was directed at the employees of a company whose practices the defendant had demonstrated he abhorred.
7. The District Judge found, as appears in paragraph 9 of the case stated, that the defendant had used abusive and threatening words and behaviour towards the prosecution witnesses on both dates. He had also used the camera in a manner suggesting that he was filming those people. He found also that that behaviour amounted to a course of conduct. He also found that it caused a mixture of reactions, varying from complete disdain to genuine fear. Some witnesses had felt the abuse was aimed at them personally and others felt it was aimed at them because they were employed by B&K.
8. He concluded that the charge was defective in that it was bad for duplicity; the defendant should know the case that he had to meet and this charge laid an unknown number of offences in one charge and never identified the complainants. He held that the description "employees of B&K Ltd" was too vague, and the prosecution did not seek to enlighten the court as to whether it was meant to include security guards or employees on long-term sickness absence or suspension, or employees not based at that site permanently or from time to time. He said that, in consequence, the defendant could not be sure who it was who was encompassed by the description "employees of B&K". He apparently accepted that B&K employed around 60 people at those premises at any one time.
9. He then went on to refer to DPP v Dunn, to which I shall come, and he concluded that, in the case before him, unfairness arose by the naming of the complainant employees of B&K because the defendant could not know precisely who was covered by that term, and no complainants had been present at both incidents; some had not been present at either, and there was no evidence that those not present had been aware of what was going on. He said it would not have been possible on conviction to give effect to a meaningful restraining order.
10. He concluded that the absence of named complainants would, prima facie, amount to a defect in the charge and, as I have said, he found that there was no case to answer. The explanation for that, which he gives in 10F of the case stated, although he did not recite this in court at the time, was that, while there was a course of conduct, there was no evidence that the conduct complained of alarmed or distressed the complainants, who were never identified with sufficient clarity as an entire group. The evidence showed some of the employees were not alarmed or distressed, and some others did not comment as to whether or not they were alarmed or distressed.
11. In the light of those matters, the District Judge posed three questions for the High Court to consider:

"1. Whether the wording of the said Section 2 charge alleging a course of conduct amounting to harassment of 'the employees of B&K' was bad for duplicity?

2. Whether the said employees of B&K constitute a close knit definable group?

3. Whether I erred in law in finding that there was no case to answer on the evidence adduced by the prosecution in this case?"

12. It is, to my mind, convenient to take the third of those questions first, and to consider whether, if the charge was properly laid, the District Judge was entitled to conclude that there was no case to answer.
13. In my judgment, he was so entitled. The evidence before him was, as I have said, that only some of the employees were present on each of the occasions and, of those present, only some gave evidence. In the words of Lord Gifford QC's skeleton argument, on behalf of the respondents:

"Of those who gave evidence, only some were distressed. No single employee was the target of a 'course of conduct', since none was present on both occasions. The evidence fell far short of proof of the charge laid."

14. I accept that submission. The District Judge was entitled to conclude that, if the charge was properly laid, there was no case to answer. In a sense, that is sufficient to deal with this appeal. But, in deference to the arguments which have been addressed to the court on other matters, I move on.
15. The Protection from Harassments Act 1997 is:

"An Act to make provision for protecting persons from harassment and similar conduct."

16. The provisions relate in the first part to England and Wales and in the second part to Scotland. There are further provisions in relation to Northern Ireland, to which it is unnecessary to refer. Section 1 provides:

"(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."

17. Section 2 provides:

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

18. Subsection (2) of that section makes it a summary offence, punishable with a term not exceeding six months, and/or a fine not exceeding level 5. Section 3, which is headed "Civil remedy", provides:

"(1) An actual or apprehended breach of section 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."

19. Provision is made for damages to be awarded.
20. Section 4, which is headed "Putting people in fear of violence", provides:

"(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him [my emphasis] 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."

21. Section 5 empowers a court, sentencing or otherwise, dealing with a person convicted of an offence under section 2 or section 4, to make a restraining order:

"...protecting the victim of the offence, or any other person mentioned in the order..."

22. Breach of a restraining order can give rise to a further criminal offence by virtue of section 5(6), punishable on indictment by imprisonment up to five years, or on summary conviction.
23. Section 7 provides:

"(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."

24. For reasons which will emerge, it is convenient to refer to the provisions in relation to Scotland. Section 8 is headed "Harassment" and in subsection (1) its terms are identical to those in section 1(1), save that they are preceded by these words:

"Every individual has a right to be free from harassment and, accordingly..."

25. Interestingly, the conduct described in section 1(1) and section 8(1) does not, of itself, give rise to a criminal offence in Scotland. What such conduct does give rise to, by virtue of section 8(5), is that an action of harassment can be brought which may lead to an award of damages and other civil remedies. If, by reason of proceedings under section 8, a non-harassment order is made, there can then be, in Scotland, a criminal offence for breaching the non-harassment order, and section 9 provides for such an offence of breaching the non-harassment order to be punished on indictment or summarily, in a manner comparable to a breach of a restraining order under section 5 in England.
26. The question which next, to my mind, needs to be addressed is one of statutory construction. The submission which is made by Mr Hatton QC, on behalf of the Director, is that the words of the Protection from Harassment Act 1997 are apt to create a criminal offence if a company or, as in this case, the employees of a company, identified to the extent which they were in the charge in this case, is or are harassed.
27. On behalf of the respondent, Lord Gifford submits that that is not the case. He refers to the history of the Act as it is to be discerned, in part, from the consultation paper from the Home Office "Stalking - The Solutions" which preceded the legislation. That paper examined "possible new measures to deal with the menace of stalking" and defines stalking as "a series of acts which are intended to, or in fact cause, harassment to another person." Lord Gifford also referred to ministerial statements made in Parliament, by reference to Hansard on 17th December 1997 Vol 781, that "the Bill covers not only stalkers but disruptive neighbours and those who target people because of the colour of their skin." There was a further ministerial reference to racial harassment as being something at which the Bill was aimed. The Bill was described by the minister as "building on the provisions of section 4(a) of the Public Order Act 1986. The submission is, therefore, made by Lord Gifford that, so far as the consultation paper and the ministerial statements are concerned, it was Parliament's clear intention to penalise conduct targeted against specific and identifiable individual victims rather than against groups or institutions.
28. He supports that submission by reference to an unreported decision of Douglas Brown J in Tuppen & Singh v Microsoft Corporation (transcript of 14th July 2000). In the course of giving judgment in that case, having been referred to the Parliamentary debates, including those to which I have referred, and to the Home Office Consultation Paper "Stalking - The Solutions" he said at page 7 of the transcript:

"It is clear that the Bill, which became the Act, was designed to replace what were regarded as the inadequate provisions of section 4(1)(a) and 5 of the Public Order Act..."

29. Lord Gifford in his written submissions referred to Huntingdon Life Sciences v Curtin, an unreported decision of the Court of Appeal on 15th October 1997, BAILII: [1997] EWCA Civ 2486 . In the course of giving the first judgment, with which Thorpe LJ agreed, Schiemann LJ said at page 3 of the transcript:

"There is little difficulty on the information before us in coming to the conclusion that the plaintiff is the subject of harassment. It did occur to me that the word 'person' in the Act might refer merely to an individual and not to a company but the Act does not say so, on the contrary, it uses the word 'individual' elsewhere in references to Scotland but not in the sections with which we are concerned. In those circumstances the presumption in the Interpretation Act that 'person' includes 'bodies corporate' should prevail, at any event for the purposes of a short-term injunction."

30. The court proceeded to grant a short-term injunction, it is to be noted ex parte, to the applicant company, Huntington Life Sciences Limited, whose premises were being besieged, for want of a better word, by a number of individuals and organisations protesting on behalf of animal rights.
31. In my judgment that decision of the Court of Appeal is not binding on this court, because it was not a decision reached as a consequence of argument on both sides. An ex parte injunction was being granted. In any event, as it seems to me, the terms of that part of the judgment, which I have read, do not address the question at the heart of the present case, which is whether or not a criminal offence is capable of being laid in the terms of the charge. Schiemann LJ refers to the word "individual" appearing in passages of the Act which relate to Scotland, though, for my part, I have found only one reference to the word "individual", and that is the one which I have rehearsed as the descriptive prelude to the provisions of section 8.
32. I accept of course that the word "person", unless the contrary intention is shown, is, as Mr Hatton on behalf of the Crown submits, to be understood, by virtue of the Interpretation Act 1987, as including a body of persons corporate or incorporate. But that said, it seems to me that the legislative history to which, in my view, reference can properly be made when construing what is meant by the word "person" in section 1 of the Act, points against person here meaning a corporation. It is to my mind also significant that in section 4(1) the word "him" is used, and in section 5(2) the word "victim" is used.
33. For my part, I find nothing in the Scottish provisions, particularly bearing in mind that they do not create a criminal offence of the kind here under consideration, which suggests that "person" in section 1 should be construed as embracing a corporation. As it seems to me, as a matter of statutory construction, this Act was not intended by Parliament to embrace, within the ambit of a criminal offence, conduct amounting to harassment directed to a limited company rather than to an individual human being. I gain support for that conclusion from the observations made by Eady J who, at an inter partes hearing, some six weeks after the Court of Appeal had granted the temporary ex parte injunction to which I have referred, discharged it. He, of course, had the advantage of hearing submissions on behalf of the defendants as well as the plaintiffs. In the course of giving his judgment, of which the court has been provided with a full transcript, dated 28th November 1997, and which is briefly reported in the Times Law Reports for 11th December 1997, Eady J said:

"The legislators who passed that Act [he is there referring to the 1997 Act] would no doubt be surprised to see how widely its terms are perceived to extend by some people. It was clearly not intended by Parliament to be used to clamp down on the discussion of matters of public interest or upon the rights of political protest and public demonstration which are so much part of our democratic tradition. I have little doubt that the courts will resist any such wide interpretation as and when the occasion arises, but it is unfortunate that the terms in which the provisions are couched should be thought to sanction any such restrictions."

34. The next question which arises, and this is covered by present authority, is whether, on the assumption that this Act, properly construed, is capable of giving rise to a criminal offence by virtue of conduct harassing a company or its employees, the employees of this company, as described in the charge, can properly be described as a close knit and identifiable group as the authorities require. In this regard it is convenient, first, to refer to Mills v DPP (unreported) Divisional Court transcript of 17th December 1998. In the course of giving the first judgment in that case, Steel J considered the submission made that the charge in that case was bad for duplicity. She referred to observations made by Browne LJ in R v Wilson Cr App R 69 p.85:

"The word duplicity is used in a rather ambiguous sense, it seems to me, in the authorities and textbooks. First there is a case where it appears on the face of the indictment, or particulars of the indictment, that a count is charging more than one offence. It may sometimes be legitimate to look at the depositions in this context."

35. Browne LJ went on to say:

"In my view such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down."

36. He went on to agree with Lord Widgery in DPP v Merriman [1972] Cr App R 766 that:

"It will often be legitimate to bring a single charge in respect of what he called one activity even though that activity may involve more than one act. It must of course depend on the circumstances."

37. Steel J went on to say that, in the case then being considered, two complainants, the nexus between whom was merely that they were neighbours, had been named, and so it was said the charge was bad for duplicity. She went on to hold that in that particular case:

"The victims here cannot be described as members of a close knit definable group."

38. With that judgment Otton LJ agreed. He also went on to say, having quoted some observations made by me in DPP V Williams (Unreported) Divisional Court transcript of 27th July 1998 that it would be appropriate in section 1 of the 1997 Act to construe the words "another" and "other" as including the plural.
39. The judgments given in Mills were both referred to by Bell J, giving the first judgment of the Divisional Court in DPP V Dunn [2001] 1 Cr App R 352. Having referred to those judgments at page 359 of the report, Bell J at paragraph 29 went on as follows:

"Faced with the case of Mills, Miss Hobson before us this morning has conceded that she can no longer sustain the argument which she presented to the Cambridge Crown Court, that the use of singular terms, not just in section 1 of the Act but in other provisions of the Act, means that a separate office is committed whenever any one individual is subjected to a course of conduct amounting to harassment. She concedes that section 6 of the Interpretation Act 1978 does apply to the relevant provisions of the 1997 Act so that words in the singular include words in the plural. However, Miss Hobson, having analysed the witness statements actually made pursuant to section 9 of the Criminal Justice Act by Mr and Mrs Breedon, argues that each of them give an account of conduct alleged to amount to harassment on different occasions; that in relation to six occasions in the case of one witness and five in the case of the other, what Mr Dunn is alleged to have done was directed at the witness, the single witness alone. Miss Hobson goes on to contend that there has to be a single course of conduct amounting to harassment for an offence to be committed under sections 1 and 2 of the Act and that in the light of the allegations summarised in the Case Stated and referred to in the witness statements of Mr and Mrs Breedon, there is more than one course of conduct alleged in this case. Moreover, she says that, in order for the information as presently drafted to be sustainable, there must be at least two separate occasions when there is an act of harassment directed at both the alleged victims. In support of that argument, she relies upon that part of Otton LJ's judgment which gives the example of:

'...sisters living in the same house where they are allegedly harassed and the conduct complained of was clearly aimed at both of them on each occasion.'

30. Miss Hobson goes on to say or contend that it would be unfair if Mr Dunn had to face the information in the form that it was laid against him, because it would be possible for the prosecution, if harassment was proved against one of the complainants but not the other, to allege that nevertheless the information had been brought home, but neither she nor, more importantly, Mr Dunn would know the precise basis for the conviction that would follow. This, Miss Hobson says, would lead to injustice. In other words, as I understand Miss Hobson's argument, she alleges that, despite the concession that she makes about the singular including the plural in the construction of the relevant provisions of the Act, there is in fact duplicity in the case of this particular information which may lead to injustice so far as Mr Dunn is concerned.

31. I respectfully agree with the approach of Otton LJ to the question of duplicity where two or more complainants are named in one charge under sections 1 and 2 of the 1997 Act. Moreover, I do not believe that Otton LJ meant to say, in the part of his judgment upon which Miss Hobson particularly relied, that a charge which named two complainants could only be free of duplicity where the conduct complained of was clearly directed at both of them present together on at least two occasions.

32. Firstly, it seems to me that conduct complained of might be aimed at two people, although only one was present. Secondly, it seems to me that the example of two sisters given by Otton LJ was only an example of a case where, in his judgment, two complainants might be named in a charge without duplicity. I do not take it to be an exclusive definition of what is required to avoid duplicity if two victims are to be named in a charge or information.

33. The offence under section 2 of the Act consists of pursuing a course of conduct. A course of conduct must by necessity involve a number of acts. Indeed section 7(3) of the 1997 Act provides that it must involve conduct on at least two occasions. Obviously such a course of conduct may readily amount to harassment of a number of victims. In those circumstances, I respectfully agree with Otton LJ that the use of the singular in section 1 involves the plural. In my view, Miss Hobson's concession to that effect has rightly been made. That conclusion seems to me to make good sense and I can see no unfairness in principle to a defendant, provided that his acts amount to pursuing a single course of conduct which amounts to harassment of a number of closely connected victims in a close knit definable group as Otton LJ and Steel J put it."

40. It is apparent, therefore, by reference to Mills and to Dunn that the question has to be addressed in the present case as to whether or not the employees of B&K can properly be characterised as "members of a close knit definable group". In support of the proposition that they can, Mr Hatton relies upon a passage in the judgment which I gave in Williams, to which I have already referred. With respect to him, all that appears in that judgment is a citation from counsel's argument, which I said would require to be adjudicated upon on some future occasion. The example which was being considered related to the possibility of incursion, on separate occasions, into the rooms of 50 nurses living in the same accommodation and as to whether it could be said that a defendant who so acted would fall foul of the provisions of section 1 of the Act until, on a second occasion, he made an incursion into the room of the same individual nurse.
41. What has to be determined for present purposes is whether 60 employees of a company at a single site were, in the first place, close knit and, in the second place, definable. Mr Hatton submits that they were close knit because they shared common employment. An example was put in the course of argument: suppose instead of there being 60 employees there were 10,000, could it properly be said that because they share common employment they too were to be regarded as close knit? Mr Hatton submitted that there was no distinction in principle capable properly of being drawn between different numbers of employees.
42. The authorities to which we have been referred, in holding that more than one person can properly be identified in a single charge under this Act, without that charge being bad for duplicity, have been concerned with a very small number of people. In the case of Dunn they were husband and wife. For my part, I have no difficulty with the concept that a family living together at the same address, or it may be unrelated persons living together at the same address, may properly be regarded as a close knit group. Every case must be determined as one of degree by reference to the particular circumstances. But, for my part, I simply do not accept that 60 persons, whose only common feature is that they work for the same employer, are a close knit group.
43. The further difficulty which arises in the present case, as it seem to me, so far as the prosecution are concerned, is that no employee was in fact identified in the charge as laid. That immediately gives rise, if that is a proper manner of proceeding, to difficulties of proof when, as in the present case, some of the witnesses who gave evidence had plainly not been harassed at all and some had. As was posed in the course of argument in the present case: of the 60 employees of B&K, suppose one gave evidence of great fear so that he or she could be properly regarded as having been harassed, and the other 59 employees were called and said that they had not been in any way affected by the conduct of the defendant. As it seems to me, it would be quite impossible properly to prove the offence if the victim, said to be the object of harassment, is not identified in the charge.
44. Accordingly, I have reached the conclusion that the employees of B&K referred to in the charge in the present case did not constitute a close knit, definable group, and the learned District Judge was entitled so to conclude. The consequence of that is that the use of the phrase "the employees of B&K" in the charge necessarily caused the charge to be bad for duplicity, as the District Judge found.
45. Accordingly, for my part, answering the questions in the way in which I have indicated, I would dismiss this appeal.

MR JUSTICE GIBBS: I agree.

LORD GIFFORD: My Lord, on behalf of the respondent we appreciate very much that your Lordships dealt with all the matters and were not tempted to stop about an hour ago.

LORD JUSTICE ROSE: It is very tempting on a Friday afternoon, I have to say.

LORD GIFFORD: They are important considerations and we appreciate your Lordships' consideration.

LORD JUSTICE ROSE: Somebody will be able to say that it was all obiter anyway.

LORD GIFFORD: They could, but given the force of the reasoning I do not think they will get very far. My Lord, we would ask for costs. The respondent is legally aided however.

LORD JUSTICE ROSE: Lord Gifford, are you asking for an order for costs out of central funds?

LORD GIFFORD: Yes.

LORD JUSTICE ROSE: Yes, clearly. Thank you both for your submissions.