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
		25 November 2004

1. MR JUSTICE LEVESON: This is an appeal by way of case stated against the decision of Deputy District Judge Yearwood sitting at Kingston upon Thames Magistrates' Court following a trial lasting no less than seven days when, on 20th February 2004, the appellants, who are father and son, were both convicted of two offences of harassment contrary to section 2 of the Protection from Harassment Act 1997 ("the 1997 Act"). These offences were directed at different women, Joanna Wyatt and Jacqueline Spencer. The father, Gino Taffurelli, was also convicted of criminal damage to a motorcar on 3rd May 2003 and the son, Lee Taffurelli, was convicted of criminal damage to a window on 3rd July. Another son, James Taffurelli, was also convicted of harassment. He does not appeal.
2. Although there are two questions posed in the case stated for the opinion of this court, it is conceded that the second, namely whether evidence led by the prosecution which clearly satisfied an element of the offence charged had to be mentioned by the prosecution in addressing the court, presumably in opening the case, only admitted the answer "no".
3. The first question which has formed the basis of this appeal is:

"Was the court correct in finding the appellants guilty of Harassment contrary to Section 2 of the Protection from Harassment Act 1997 in finding that the appellants' behaviour on the 3rd May 2003 and their lack of control over their dogs on the 1st, 8th, 19th, 22nd, 23rd, 24th, 26th, 27th, 28th, and 29th June 2003 did amount to a course of conduct which amounted to harassment and was known by each appellant to do so."

4. The way in which the full case came to be stated is of significance. The background is set out in the case stated dated 5th May 2004 in these terms:

"(a)The complainants in the case are Joanna Wyatt and Jacqueline Spencer. They live at 445 Leatherhead Road, Malden Rushett, Surrey. The property is a semi detached two bedroom cottage. It was purchased by Jacqueline Spencer in 1985, she occupied the front first floor bedroom. Joanna Wyatt has lived there since 1997. She occupied the rear bedroom on the first floor.

(b) Number 445 Leatherhead Road is adjacent to and attached to number 447. In September 2002, Gino Taffurelli and Bernadette Chapman bought number 447 and moved in with their son James Taffurelli. Gino Taffurelli and Bernadette Chapman owned two large alsatian dogs and a cat. [Mesdames] Wyatt and Spencer owned a small dog and some guinea pigs.

(c) Initially the relationship between the two households was cordial and very much as might be expected of two neighbours (household) getting to know each other. There were a few unfortunate incidents such as fireworks display in the garden of number 447 which frightened the animals in the backyard of number 445. There was also the accidental attack by one of the alsatians of number 447 on the smaller dog of number 445. These incidents were overlooked by both households and at Christmas 2002, the household exchanged a Christmas card and a bottle of wine.

(d) The court also found evidence of the deterioration of the relationship between the two households. This covered the period from 13th February 2003 to 1st May 2003 which fell outside of the period to which the charges related and although the complainants' evidence was accepted in respect of these incidents, they did not form part of the evidence establishing the guilt of either appellant on the charges of Harassment. These incidents included physical confrontations of a threatening nature by Gino Taffurelli on Joanna Wyatt on the 13th February 2003 and similarly on Jacqueline Spencer on 16th February 2003; verbal abuse, playing of loud music, the banging of windows and loud television sounds in the early hours of the morning and regular loud and persistent dog barking in the early hours of the morning."

5. I interrupt this recitation of the facts to observe that in the light of the learned Deputy District Judge's findings in relation to February 2003, it may be that in relation to Gino Taffurelli, had the charges of harassment been brought over a wider period of time, the problems with which I must now grapple would not have arisen.
6. Going back to the evidence, in the same document the learned Deputy District Judge then set out the evidence upon which he relied to convict Gino Taffurelli in these terms:

"(e)... On 3rd May 2003, when Gino Taffurelli, Lee Taffurelli, James Taffurelli and other members of the Taffurelli family were in the back garden to number 447 Leatherhead Road, Joanna Wyatt was in her garden and she was later joined by Jacqueline Spencer.

The Court accepts the evidence from Joanna Wyatt of explosive yelling, hammering and shouting. That Gino Taffurelli did shout to Joanna Wyatt 'I am fed up with this old slapper' and that Gino Taffurelli described Joanna Wyatt's car as a 'fucking shitty old car not worth crapping on' and threatened her saying 'you think you are so clever, I will show you what clever is. You don't put two fingers up at me. I will stick your fingers up your ass'.

The Court also found proved that Lee Taffurelli did throw small stones over the fence striking Jacqueline Spencer on the face and head. Additionally, that he referred to both Joanna Wyatt and Jacqueline Spencer as 'bull dykes' and that this name was chanted by other members of the Taffurelli family. The Court also found that James Taffurelli threatened both complainants by aggressively saying during this incident 'we are going to get you'.

(f) The Court regarded the incident of the 3rd May 2003 as a joint attack by the Taffurelli family."

7. Again, interrupting this analysis of the facts, it is also necessary to add that in relation to 3rd May Gino Taffurelli was convicted of the offence of criminal damage in relation to Joanna Wyatt's Toyota Corolla motor vehicle.
8. Carrying on with the case stated:

"(g)The Court also found that part of the Harassment to the form of excessive barking of the dogs owned by Mr Gino Taffurelli and Lee Taffurelli.

(h) The Court accepted the evidence of Joanna Wyatt in particular but also supported by Jacqueline Spencer of very noisy loud excessive barking by the dogs in the early hours of the morning.

(i) That in January 2003, Lee Taffurelli began to live at number 447 Leatherhead Road and brought with him a pitbull type breed dog.

(j) Lee Taffurelli's evidence is that all three dogs would bark together. The Court accepted the evidence of Joanna Wyatt of excessive barking at 4.30 am on the 1st June 2003, middle of the night on 8th June, 5.30 am on the 19th June, 1.15 am on the 22nd June, at 23.15, 23.45 and 04.15 am on 23rd June and similar occurrences on 24th, 26th, 27th, 28th and 29th June 2003.

(k) The Court also accepted the medical evidence in respect of Joanna Wyatt of being signed off work by her doctor and having to leave home for 3-4 days through exhaustion and stress brought on by sleep deprivation. In the case of Jacqueline Spencer again having to leave home and being prescribed anti depressants."

9. Turning to the case in relation to Lee Taffurelli, the case stated goes on:

"The incidents found proved in respect of the two offences of Harassment for which he was convicted are identical to those relied on against his father. The Court found that he had played a full part in the incident of the 3rd May 2003.

"He was also the owner of the third dog, the pitbull type dog named 'Bronson'. He had admitted that his dog would bark along with the other two alsatians."

10. When they saw this document, in a response directed to the court, solicitors acting for the appellants took a number of points. For the purposes of this appeal two are of importance. First, it was pointed out that Gino Taffurelli was arrested on 15th June 2003 and thereafter bailed to an address away from the premises in question, and so could not have been responsible for any conduct on the part of his dogs thereafter. It was also said that there was no evidence that he was even present on 1st and 8th June, which were the only dates found by the Deputy District Judge within the period that he was, or could, at least nominally, have been at the premises. It was said that there was no basis upon which the Deputy District Judge could have reached the conclusion that Lee Taffurelli could be blamed for the incidence of barking on the highlighted dates. There follows a discussion of the evidence. Secondly, it was said that it was impossible for the Deputy District Judge to find any specific defendant was responsible for the dogs.
11. This led to a review of the case stated and on 29th June the Deputy District Judge signed what is described as an addendum to the case. The Deputy District Judge refers to the appellants' solicitors' document and goes on:

"In the light of certain comments in that document, I would like to clarify the evidence which I found proved, which resulted in the convictions for Harassment by these appellants.

2. In respect of GINO TAFFURELLI:

(a) Gino Taffurelli was jointly involved in the attack upon Joanna Wyatt and Jacqueline Spencer on the 3rd May 2003. This incident is already outlined in my document dated 5th May 2004.

(b) Gino Taffurelli was the owner and in control of two of the three dogs that lived at 447 Leatherhead Road, Malden Rushett, Surrey.

(c) The evidence of a failure to control the dogs barking was confined in the case of Gino Taffurelli to the period when he was residing at 447 Leatherhead Road, namely 1st and 8th June 2004.

(d) That the barking of the dogs in the early hours of the morning was loud, lengthy and resulted from a deliberate failure to control the dogs following a number of complaints by the complainants.

(e) That on the occasions when the dogs barked all three barked together.

3. In respect of LEE TAFFURELLI:

(a) Lee Taffurelli was jointly involved in the incident on the 3rd May 2003.

(b) Lee Taffurelli was the owner and in control of the third dog 'BRONSON' that lived at 447 Leatherhead Road, Malden Rushett, Surrey.

(c) Lee Taffurelli gave evidence that all three of the dogs would bark together.

(d) That the barking of the dog (BRONSON) jointly with the other dogs in the early hours of the morning was loud, lengthy and resulted from a deliberate failure to control him after numerous complaints had been made by the complainants.

(e) The occasions on which dog barking took place in the case of Lee Taffurelli is as set out in paragraph 6 j of the document dated 5th May 2004."

12. That paragraph identifies the dates in respect of which the court accepted the evidence of Joanna Wyatt of excessive barking (see paragraph 8 above).
13. It is important to underline the task upon which this court is embarked. It is not to ascertain whether there was evidence upon which the Deputy District Judge could reach the conclusions of fact which are expressed in the addendum to the case stated. Not only is that not the question posed for the opinion of this court, but in addition there is no basis on which it is possible for the court to embark on such a task. There is no note of the evidence which was given over the seven-day trial. If this had been the challenge, the question would have had to have been posed differently and the lower court would have had to be requested to identify the particular findings of fact and set out the relevant evidence: see Rules 76(2), 82(2) and (3) of the Magistrates' Court Rules 1981. I am bound to accept the findings of fact and to proceed on that basis.
14. The way in which the matter has been put by Ms Eastwood, who has appeared for the appellants in this court, albeit that she did not appear in the court below, is as attractive as it could possibly be. She submits that a failure to control a dog cannot form part of a course of conduct for the purposes of section 1(2) of the 1997 Act. This 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."

15. By section 7(4) "conduct" includes speech.
16. She concedes that a deliberate omission can, in limited circumstances, form part of a course of conduct for the purposes of the Act, but argued that a failure to control a dog from barking cannot because it is not within the power of a person having custody of the dog to exercise total control over its barking, albeit that such a person has power to control its movement.
17. She takes the different analogy of controlling loud music. In that regard she concedes that failure to reduce the volume of a music system could constitute harassment because controlling the volume is entirely within the power of the person responsible for the equipment. Preventing a dog from barking however, she argues, is not.
18. The difficulty with this submission is that it flies in the face of the specific findings of fact in the addendum to the case stated. The Deputy District Judge found that the appellants had in fact deliberately failed to control their dogs notwithstanding complaint. It may be that they barked if together, or if certain types of noise were made, or if woken in the middle of the night. I am not saying that any one of these activities in fact took place, merely that I can visualise circumstances in which conduct could knowingly provoke a dog to bark. Whereas I accept that a dog owner could not be expected to exercise total control over the barking of his dog or dogs, I am not prepared to say that regular barking in the middle of the night could not be the consequence of deliberate conduct on the part of the owner as part of a campaign to harass. It is that which the District Judge found as a fact.
19. The significance of the conduct described as the deliberate failure to control the dogs is that this evidence goes to establish, along with the different acts of criminal damage of father and son, the course of conduct that is at least two occasions necessary for the finding of harassment. Having accepted that deliberate failure to control the dogs following a number of complaints did constitute conduct, there is no basis for challenging the convictions. The answer to the question posed in the case is that in the light of the specific findings of fact, the court was entitled to find the appellants guilty of this offence. These appeals therefore are dismissed.
20. I ought not to leave this case without remarking upon the route chosen to challenge this conviction. Had the appellants exercised their right of appeal to the crown court, the matter could have been reheard and the facts reinvestigated, although an analysis of what occurred on 3rd May might itself have been sufficient to justify a conviction. Case stated is only appropriate to decide issues of law against a background of established facts. It is not the most suitable mechanism to attack those findings of fact.
21. MR HALL: Thank you, my Lord.
22. MS EASTWOOD: My Lord, I ask for legal aid taxation.
23. MR JUSTICE LEVESON: You are certainly entitled to that. Thank you very much. I think it is probably an assessment, is it not? Whatever it is, Ms Eastwood. Thank you very much.