England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		14th October 2004

1. MR JUSTICE FORBES: This is an appeal by way of case stated from the decision of the Justices for the county of Oxfordshire in respect of their adjudication as a Magistrates' Court sitting at Speedwell Street, Oxford on 4th February 2004. On that occasion, the appellant appeared before the Magistrates charged with the following offence: that on dates between 1st June 2003 and 21st December 2003 in the county of Oxfordshire he pursued a course of conduct which caused Kimberley Harris to fear that violence would be used against her, and that he knew, or ought to have known, that his conduct would cause Kimberley Harris to fear, contrary to Section 4 of the Protection from Harassment Act 1997.
2. Having heard the evidence in the case, the Magistrates found the following facts:

"(a) Between 1st June 2003 and 21st December 2003, [the appellant] visited Kimberley Harris's home three or four times each week, sometimes in a drunken and abusive state. There was a lull in October because he was remanded in custody.

(b) During those visits he made a number of threats to Kimberley Harris that he would stab her brother James, smash her father's car and work van and that he would burn the house down.

(c) He demanded that the family enter into a "payment plan", whereby they would pay him sums of money in order to be left alone.

(d) On 12th November 2003 he visited the house and smashed a car window. This was witnessed by Kimberley Harris.

(e) Kimberley Harris was not prepared to give in to the demands for money. She was, however, made to feel threatened and intimidated by the appellant, although she bravely confronted him on several occasions.

(f) Shortly before Christmas 2003, the appellant again visited the home of Kimberley Harris and stood outside shouting abuse. When confronted by her his reply was yet more abuse plus a further threat to burn out the house and the van.

(g) We find that Kimberley Harris was put in fear that violence would be used against her on both occasions when the defendant threatened to burn down the house and that he knew that she would be put in fear. On many other occasions between 1st June 2003 and 21st December 2003 she was subject to torrents of threats and abuse."

3. The first part of the question posed by the Magistrates for the opinion of this court is as follows:

"Whether the finding of fact made by the Justices that Kimberley Harris was put in fear on at least two occasions that violence would be used against her, can be supported by the Justices' stated findings of fact on the evidence they heard."

There then follows what is, in effect, a further question that is in the following terms:

"On finding that:

(1) On 20th December 2003, the appellant made a threat of violence against Kimberley Harris' father's house and van; and

(2) That threat caused Kimberley Harris to fear that violence would be used against her; and

(3) As a result of that threat Kimberley Harris believed an earlier threat made which she had not previously believed and which therefore had not caused her to fear that violence would be used against her.

Could we correctly conclude that the appellant's conduct on two separate occasions had caused Kimberley Harris to fear that violence would be used against her thereby satisfying the requirement that her fear of violence had been caused by a course of conduct?"

4. I have divided the question posed for this court in the case stated into two parts, because the second part of the question, commencing with the words "on finding that", appears to have been adopted as a result of representations made on behalf of the appellant that the first part of the question did not fully and accurately reflect the evidence, and that it did not fully and accurately reflect what may have been the likely approach of the Magistrates to deciding whether the charge had been made out against this particular appellant. As I have already observed, the additional material is, in effect, a second question.
5. In the course of her evidence, Kimberley Harris accepted that on the first occasion, when there was a threat to burn down the house, she had not been unduly concerned. Not only that, she was a spirited young lady who pursued the appellant, a 15-year old boy, and chased him with a baseball bat. It was because Miss Harris had accepted that she was not unduly concerned by the threats made on that first occasion that those advising the appellant felt that the Magistrates might have related back the fear that she had felt on a later occasion to the earlier incident, thus arriving at a situation in which they could reach the necessary conclusion that there had been two occasions upon which the victim was made to feel a fear that violence would be used against her by this appellant. Hence the additional part of the question, which is, in effect, a second question.
6. On behalf of the appellant, Mr Blake has submitted that this had been the way in which the Magistrates had approached the evidence and that they had fallen into error in failing to realise that most of the threats were advanced against a person other than the victim and that she had only actually felt fear of violence being used against her on the last occasion when the appellant made the threat to burn down the house. Mr Blake submitted that if that was a fair and proper analysis of the evidence and the way the case had turned out in the court below, then the Magistrates had fallen into error in concluding that this offence had been made out.
7. Mr Blake referred to the case of Caurti v Director of Public Prosecutions [2002] CLR 131 which makes it quite clear that threats made against another person will not be sufficient for the purposes of any charge in respect of a complainant who was not actually fearful of his or her own safety as a result of the threats. It is also trite law that, in cases of this type, it is necessary for the prosecution to prove that the appropriate course of conduct has been established so as to give rise to the fear of violence being used against the victim. That means that there must be at least two occasions where the threats or other conduct giving rise to the fear of violence have been made or carried out by the defendant in question.
8. However, in my view, there is no substance in Mr Blake's submissions. It is clear from the findings of fact which I have quoted earlier that the Magistrates did conclude that the victim had felt threatened and intimidated by the appellant on those occasions when he had threatened, amongst other things, to burn down the house in which Miss Harris lived. That occurred on more than one occasion and culminated in the incident which occurred shortly before Christmas 2003. Again, on that occasion he threatened to burn down the house in which Miss Harris lived. The Magistrates then concluded, as they were entitled to on the evidence, that Miss Harris had been put in fear that violence would be used against her on both occasions, as they expressed it, when the defendant had threatened to burn down the house in which she lived.
9. I am fortified in coming to the conclusion that such were the Magistrates' findings of fact by paragraph 6 of the case stated, in which the Magistrates set out their opinion as to the state of the case and their view of the evidence that they had heard. What the Magistrates said was this:

"(a) Kimberley Harris and Melvin Harris had both told the truth to the court -- we did not believe the appellant. Kimberley Harris was put in fear that violence would be used against her on both occasions when [the appellant] threatened to burn the house down.

(b) To make a threat to someone to burn down the house in which they live is to threaten that person with violence.

(c) She [the victim] said in evidence that she was not unduly concerned following his first visit and that she was not prepared to be blackmailed by a fifteen year old boy. However, she also said, when asked how his activities had made her feel, that she had felt for the whole of the six month period over which he had been calling and making threats, threatened and intimidated by which we believe she meant that she had been put in fear that violence would be used against her."

10. In my view, it is quite clear that the Magistrates had come to a clear conclusion on the evidence that, whilst Miss Harris had not been unduly (my emphasis) concerned as to the threats made on the first occasion, when the appellant threatened to burn the house, she had nevertheless felt threatened and intimidated by him throughout the whole period, and that included the first occasion. In those circumstances, as it seems to me, the Magistrates were fully entitled to come to the conclusion that Miss Harris had, on at least two separate occasions, felt threatened by the appellant that he would burn down the house in which she lived. The Magistrates were entitled to conclude that this constituted a course of conduct which caused the victim to fear that violence would be used against her. In my view, that was a conclusion which they not only were entitled to reach but which, in all the circumstances of this case, I am satisfied was one that the Magistrates were bound to reach.
11. Accordingly, I would answer only the very first part of the question posed by the Magistrates, and I would answer it in the affirmative. As to the second part of the question, commencing with the words "on finding that", in my view the suggested findings of fact there set out do not satisfactorily correspond with the actual findings of fact in the body of the case and the opinions expressed in paragraph 6 and should be disregarded. For those reasons, therefore, I am satisfied that this appeal must be, and is hereby, dismissed.
12. MR BLAKE: I am very grateful for your indulgence, my Lord. I would ask for a Legal Aid assessment.
13. MR JUSTICE FORBES: Yes, very well. Thank you both very much.