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
		14th January 2008

1. LORD JUSTICE LATHAM: I will ask Mr Justice Cooke to give the first judgment.
2. MR JUSTICE COOKE: This is an appeal by way of case stated from the decision of a Deputy District Judge, sitting at Harwich Magistrates' Court on 23rd February 2007, by which he convicted the two appellants of offences of harassment, contrary to section 2(1) and (2) of the Protection from Harassment Act 1997.
3. The two appellants were each charged with an offence of pursuing a course of conduct that amounted to harassment of Angela Garrod and Ryan Garrod between 19th May 2005 and 16th November 2005. The terms in which the charges were put were as follows. First, as against Sylvia Buckley:

"Between 19th May 2005 and 16th November 2005 at Colchester in the County of Essex acting with Lisa Marie Smith pursued a course of conduct which amounted to the harassment of Angela Garrod and Ryan Garrod and which you knew or ought to have known amounted to the harassment of them in that you made intimidating comments on several occasions and followed them in an intimidating manner on 15th November 2005 contrary to Section 2(1) and (2) of the Protection from Harassment Act 1997."

4. Secondly, as against Lisa Smith:

"Between 19th May 2005 and 16th November 2005 in Colchester in the County of Essex pursued a course of conduct which amounted to the harassment of Angela Garrod and Ryan Garrod and which you knew or ought to have known amounted to the harassment of them in that you shouted abusive remarks, made threats towards Angela, followed them in an intimidating manner on 15th November and made threatening remarks to Ryan contrary to Section 2(1) and (2) of the Protection from Harassment Act 1997."

5. In March 2005 Stephen Ballard committed suicide. He was at that time in a relationship with Angela Garrod, who had an 8-year-old son, Ryan Garrod. The appellant, Sylvia Buckley, was the former partner of Mr Ballard and the other appellant, Lisa Smith, was a friend of Sylvia Buckley. The death of Mr Ballard caused problems between the appellants and Angela Garrod, Sylvia Buckley blaming Angela Garrod for that suicide.
6. The Deputy District Judge found the following facts, which are set out in the case stated:

"[1] That on an unspecified date, outside the period of the charge, Sylvia Buckley had followed Angela Garrod in her car as Angela Garrod drove to visit a relative.

[2] On the 20th May 2005 as Angela Garrod approached the 'Silver Oyster' public house where she worked as a barmaid she was approached in the car park by Lisa Smith who told her that Sylvia Buckley had taken an overdose and if it was proven to be her fault she would have the mafia after her, causing Angela Garrod to become nervous and upset.

[3] On the 10th June 2005 Sylvia Buckley drove her car alongside Angela Garrod's car, but I was not sure that, whilst stationary at the traffic lights, she had said to Angela Garrod 'you're fucking dead'.

[We note that the Deputy District Judge, therefore, did not find a piece of conduct constituting harassment against Sylvia Buckley on 10th June.]

[4] That on the 15th November 2005, the anniversary of Stephen Ballard's birthday, both Complainants and a number of prosecution witnesses had attended the cemetery where Stephen Ballard was buried. As Angela and Ryan Garrod approached the graveside, where both Complainants were already present, Lisa Smith made an intimidating comment to Angela Garrod with reference to a near collision between their respective cars, this comment being sufficient to cause Angela Garrod to turn about and return to her car. Lisa Smith said words to the effect of 'your mother's dead' to Ryan Garrod causing him to cry.

[5] As Angela Garrod and her son drove away from the cemetery Lisa Smith ran forward and spat at their car. Sylvia Buckley and Lisa Smith chose to leave the cemetery in pursuit of Angela Garrod's car. Sylvia Buckley drove her car close behind Angela Garrod's vehicle in an intimidating manner and continued to do so during the journey to the 'Silver Oyster' public house.

[6] Sylvia Buckley drove into the car park of the public house following Angela Garrod. In the car park one of the Applicants removed the keys from the ignition to Angela Garrod's car whilst the other threw gravel in the direction of Angela Garrod's car. Lisa Smith said to Ryan 'you're a dead boy', causing him to become tearful."

7. The appellants made a submission of no case to answer at the end of the prosecution evidence to the Deputy District Judge. It was submitted by counsel on behalf of each appellant that the events of 15th November could not constitute the requisite statutory "course of conduct" involving "conduct on at least two occasions", as specified in section 7 of the Protection from Harassment Act. It was also submitted for Lisa Smith that the events of 20th May and 15th November 2005 were too far apart and too dissimilar in type and context to constitute a course of conduct for the purpose of the statute.
8. The prosecution had opened its case on the basis that the course of conduct pursued by Lisa Smith consisted of conduct on two occasions, namely 20th May 2005 and 15th November 2005, whilst that pursued by Sylvia Buckley consisted of conduct again on two occasions, but in her case 10th June 2005 and 15th November 2005. The Deputy District Judge took the view, however, that the events of 15th November were themselves capable of constituting a course of conduct, involving an episode at the graveside, perhaps a separate episode of spitting at the car, but certainly then an episode where the complainant's car was being pursued by both appellants, and a further episode in the pub car park. The appellants gave evidence and in due course the Deputy District Judge convicted the appellants on that basis.
9. It is accepted that if the Deputy District Judge was entitled to come to this conclusion as a matter of law and fact, then the other grounds of appeal advanced for Lisa Smith and Sylvia Buckley do not arise.
10. There were two limbs to the argument that the Deputy District Judge should not have convicted the appellants on this basis. The first ground of appeal is that the activities on 15th November could only be viewed as being one continuous incident. It was submitted to the Deputy District Judge, as to this Court, that the events of 15th November 2005 are incapable of being broken down into "separate occasions". It is said that there was nothing which broke up or separated the appellants' conduct on 15th November, and that it is all one incident. In that context reference was made to the case of Kelly v Director of Public Prosecutions and Pratt v Director of Public Prosecutions, to which I will revert shortly.
11. It is submitted that any act or series of acts could be broken down into infinitesimally small segments, but to do so for the purpose of establishing a course of conduct is artificial and unfair, and contrary to the purpose and spirit of the statute. The statute itself provides that the course of conduct must involve conduct "on at least two occasions", and to take the events of 15th November as more than one occasion is, it is said, unreal, artificial and beyond the bounds of what the Deputy District Judge could in law do. The words "two occasions" should, it is said, be accorded their ordinary, natural everyday meaning.
12. The second ground of appeal is on the basis of the procedure which took place. It is submitted that it was unfair and prejudicial for the Deputy District Judge to re-categorise the occasions amounting to a "course of conduct", since the prosecution had opened their case on a particular basis of two occasions in the case of each appellant; in the one case 20th May and 15th November and in the case of the other appellant 10th June and 15th November.
13. By the time when this issue arose at the submission of no case to answer, the appellants had already cross-examined the prosecution witnesses. They had prepared their case on the understanding that 15th November was to be regarded as simply one occasion. It is submitted that if it had been known that 15th November was being advanced as possibly being broken down into a number of separate incidents and separate occasions, the case would have been conducted differently. The defence did not know with clarity the case they were supposed to be answering.
14. In Pratt [2001] EWHC Admin 483 Latham LJ said this:

"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."

15. The emphasis is put by the appellants in this case on need for "repetitious behaviour", which is said could not be constituted by the events of 15th November.
16. In Kelly v Director of Public Prosecutions [2002] EWHC 1428 (Admin) Burton J held that three harassing telephone calls in the space of five minutes were capable of constituting a course of conduct, as the magistrates had found. He referred to the R v Hills [2001] FLR 580, where Otton LJ had indicated that the exercise of looking at incidents relied on as harassment was not simply a mathematical one. The question as to whether there were two, three or four incidents was not simply a matter of calculating whether there was more than one, but was part of a question as to whether there was a course of conduct. He also referred to the passage in Pratt, to which I have just referred.
17. In paragraphs 22 and 23 Burton J said this:

"22. In his skeleton argument in response, Mr Sandiford, on whom I did not call orally, submitted that what was occurring here was an irrationality challenge, which could not be supported. I agree. It is quite clear to me that the magistrates did ask themselves the right question. They did not limit themselves to a mathematical exercise, such as was referred to by Otton LJ. They knew that the issue before them was that there were, as they found, three separate and distinct telephone calls, and they asked the right question, namely, whether those three distinct telephone calls, albeit over a period of five minutes, amounted to a course of conduct. They were satisfied it did. Mr Greaney's submissions, as he accepted in the end, amounted to a submission that no reasonable magistrate could ever find, given that there were no particular ingredients in this offence which could distinguish it, that three calls in five minutes could amount to a course of conduct.

23. I conclude that that is not the case. It might be that the three justices might have found, or might have been persuaded to conclude, that there was no course of conduct here, but they were satisfied that there were three distinct and distinct telephone calls and that there was a course of conduct. I am not persuaded that that decision can be challenged as irrational. Latham LJ's dictum emphasises the need for repetitious behaviour, and on the justices' conclusions there was repetitious behaviour. The Act requires that an offence must be committed more than once before it can be actionable, and it was committed more than once. It seems to me that if three telephone calls are made they are capable of amounting, and on the facts the justices found that they did amount, to three incidents, just as the writing of three letters or the sending of three e mails could amount to three separate incidents of harassment. The shortage of time within which they were sent was only a factor, just as the distance in time between them would be a factor if that were the situation, for example in the case of Pratt."

18. In my judgment the same is true here. The Deputy District Judge asked himself the right question and came to an answer which cannot be said to be one which no reasonable magistrate could find. The events of 15th November fell into a number of distinct episodes, even if one followed the other consecutively. The events at the graveside were followed by spitting at the car as it left. That is certainly capable of being viewed as conduct on one occasion if not two occasions, since the intimidating comment at the graveside caused Angela Garrod to return to her car. It was then only as she left that the spitting occurred.
19. The Deputy District Judge in his findings of fact drew attention to a decision taken by the appellants to follow the complainants in the car, and both appellants being involved in that on a joint enterprise basis. The intimidating driving was therefore the result of a separate decision and constituted a further episode which was capable of constituting another occasion of harassing conduct. Equally, there was a further episode in the pub car park, when the appellants deliberately got out of their car and embarked on further harassment, which could properly be seen as a further occasion. It cannot in my judgment therefore be said that the Deputy District Judge's conclusion was irrational or perverse, and one which no magistrate properly directing himself as to the law could reach.
20. As to the second ground of appeal, we agree with the Deputy District Judge that no prejudice arose to the appellants as a result of his approach, since counsel for each appellant had had the opportunity of cross-examining the prosecution witnesses, and had done so extensively about each of the episodes to which I have referred. Each defendant's case was apparently one of alibi in respect of 15th November 2005, since they said they had not been present at the cemetery at all, but each allegation of 15th November was in issue and was fully examined in questions in the evidence. It was suggested in argument that there would have been greater cross-examination about who was actually driving the car, had the ruling of the Deputy District Judge been made known at an earlier stage and had it been perceived that the case could be put on the basis simply of the events of 15th November. Since, however, the Deputy District Judge found that this was part of a joint enterprise, it does not seem to us that this would make any difference at all.
21. Furthermore, if there had been questions which the appellants had wished to put to prosecution witnesses, it would have been possible to require them to be recalled in order to deal with matters that were otherwise not dealt with, but which were necessary for the purpose of the case as the Deputy District Judge saw it and expressed it in his ruling. That was not done. It was not done doubtless for good reason, which is that it would have made no difference, as all doubtless appreciated.
22. In these circumstances, the questions of law raised by the Deputy District Judge fall to be answered as follows:

"a. Was I wrong in law to rule that my findings of fact in respect of 15th November 2005 were sufficient in themselves to constitute a 'course of conduct' involving conduct on at least two occasions?"

The answer is "no". The facts as found by the Deputy District Judge were capable of constituting conduct on two or three occasions.

23. Secondly:

"b. Did I err in concluding that no prejudice arose to either Applicant as a result of my deciding that the events of the 15th November 2005 could be regarded as a sufficient 'course of conduct' notwithstanding that the prosecution had opened their case against each Applicant on a different basis?"

The answer again is "no". No prejudice was caused to the appellants in the pursuit of their defences, even though the prosecution had opened its case on a different basis. The course of evidence at trial would have been the same regardless.

24. In these circumstances, the other two grounds of appeal do not arise and there is no need for us to determine them. Had it however been necessary, I would have held that the same conclusion applied to the Deputy District Judge's view of the connection between the events of 20th May and 15th November as I have held in relation to his findings about 15th November, whilst the prosecution accept and I agree that the Deputy District Judge could not have properly reached the fourth conclusion that he did.
25. LORD JUSTICE LATHAM: I agree.
26. Thank you very much. Mr Kelly, are there any consequential submissions?
27. MR KELLY: My Lord, yes. There is an application for costs. Can I say that I have come into this case at a very late stage and do not have knowledge of the background of the appellants, their means and the like. There is an application for the respondent's costs to be taxed in the normal way, but perhaps you would want to hear from my learned friend in relation to their means.
28. LORD JUSTICE LATHAM: There is no schedule produced?
29. MR KELLY: There is no schedule. As I say, I have come into this case very late in the day, as your Lordships have seen from the date of my skeleton argument.
30. LORD JUSTICE LATHAM: What do you say Mr Morgan?
31. MR MORGAN: I simply say this, your Lordship, that the appellants both were legally aided with regards to this application. I do not have with me -- they are not here today. I do not have with me a detailed breakdown of their means, I am afraid.
32. LORD JUSTICE LATHAM: Yes. But they are legally aided -- you are instructed on the basis of a legal aid order by the --
33. MR MORGAN: Indeed.
34. LORD JUSTICE LATHAM: -- Commission; is that right?
35. MR MORGAN: Indeed, your Lordship.
36. LORD JUSTICE LATHAM: In the circumstances and on the information that we have been given today, the appropriate order is no order for costs.
37. Thank you both very much indeed.