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 WC2A 2LL
		30 October 2008

1. LORD JUSTICE PILL: This is an appeal by way of case stated against the decision of the Gwynedd Justices, sitting at Pwllheli on 20 August 2007, by which at the close of a prosecution case against Mr Simon Hardy ("the respondent") they ruled that -

" ..... no reasonable tribunal properly directed might convict, and therefore there was no case to answer."

2. The question for this court is whether the decision of the justices was perverse.
3. The respondent was charged with an offence contrary to Section 2 (1) and (2) of the Protection from Harassment Act 1997 ("the 1997 Act"). Section 1 of the Act provides, insofar as material:

"(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.

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

(3) Sub-section (1) does not apply to a course of conduct if the person who pursued it shows -

.....

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."

4. Section 7 of the 1997 Act provides insofar as is material:

" .....

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

(3) A 'course of conduct' must involve -

(a) in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person;

(4) Conduct includes speech."

5. The respondent was charged in these terms. On 31 October 2006, at Bangor in the County of Gwynedd, pursued a course of conduct which amounted to harassment of Janice Elaine Hogg which he knew or ought to have known amounted to harassment of her in that he telephoned her in excess of 50 times within an hour-and-a-half, contrary to Section 2 (1) and (2) of the Protection from Harassment Act 1997.
6. The statement of facts by the justices provides no background to the telephone calls subject to the charge. Mr Edwards for the appellant - the prosecutor - and Mr Nicholas Williams for the respondent helpfully agreed the basic facts to which the court can have regard in considering the circumstances. Mr and Mrs Hogg run a business providing primary care to patients. That care is not provided at their own business premises where the calls were received. Mr and Mrs Hogg and their son Mr Craig Hogg were directors of the company. The magistrates referred to the telephone line in question as being an emergency line. Mr Williams seeks to add the fact that there was a second line available on the same telephone number.
7. Summarised by the justices, Mrs Hogg's evidence was that during the initial telephone call the respondent introduced himself and said that he wanted to discuss "the fact that his partner had not been successful in her interview for a position within the company". Mrs Hogg explained to him that she had spoken to his partner and her sister and that she could not discuss the matter any further with him due to data protection regulations. Mr Williams accepts that the protection of data was a factor present. When Mrs Hogg put the telephone down it rang again immediately and it was the respondent again wanting to discuss his partner's interview with the business.
8. The evidence was that the telephone rang incessantly for over an hour. Mrs Hogg heard the respondent say "You will speak to me" in a controlling manner during a number of the telephone calls. She could not ignore the calls and let the telephone ring because it was an emergency line and the calls had to be answered. She explained this to the respondent. He said that she would have to speak to him. The evidence was that during one of the telephone calls the respondent said, "I have got myself a cup of coffee and I am set for the night. This will continue until you speak to me."
9. During another call the respondent mentioned two addresses which in fact are the homes of Mr and Mrs Hogg and Craig Hogg respectively. Mrs Hogg was asked whether these addresses meant anything to her. He mentioned a date and said that it was Mrs Hogg's "date of birth, I believe". Mrs Hogg said she was particularly intimidated by the respondent quoting personal details of that kind to her. She was unable to be specific as to how many times she spoke to the respondent or as to how many times she heard a voice on the end of the line. Her estimate was that she heard a voice on 90 per cent of the calls. A number of times she simply put the telephone down without hearing anything. Mrs Hogg thought it was after 7 pm when the respondent quoted her details. She then contacted her son and the telephone calls ended.
10. Mrs Hogg confirmed in cross-examination that no threats were made to her and she had received no further communications from the respondent.
11. Mr Hogg also gave evidence saying that his wife when answering the telephone became increasingly distressed. The telephone would ring immediately on being put down. He took a number of calls to try to reason with the respondent but without success. As soon as he heard the word "you" he knew it was the respondent on the line and he put the telephone down. He estimated that he spoke to the respondent about ten times. He was of the opinion that there must have been an automated device activating the re-ring device on the telephone. The majority of calls were taken by his wife. He could not say if any of the calls were made by Miss Philips who was the respondent's partner.
12. Mr Craig Hogg gave evidence that his mother telephoned him at around 6.45 to 7 pm. He then contacted the respondent and had a conversation with him for about 30 minutes. The respondent was agitated and abrupt. Towards the end of the conversation he became more settled and professional and the conversation ended amicably. He had not been threatened by Mr Hogg.
13. Also before the justices was a statement of the number of telephone calls made from the respondent's garage. (He is a director of a garage company.) On the date in question 95 calls were made by someone to Mrs Hogg's office. Also before the justices was a statement including the interview of the respondent. The justices summarised it in this way:

"I tried to phone and they hung up on me continually.

- No idea how many times he 'phoned.

- I just put the phone on auto-redial and just left it and they kept hanging up and hanging up and hanging up.

- I explained to them that I wouldn't stop trying to find out because Fiona was distraught and sobbing her heart out.

- The calls lasted for an hour maybe an hour-and-a-half.

- The only reason I referred to their addresses was to make it clear that we weren't just going to disappear as we wanted to know what had gone on and that's all we wanted.

- I think someone hanging up on someone 95 times is completely unreasonable.

- They refused to speak to me without Miss Philips being present therefore I asked her [Miss Philips] to come over to the garage."

14. Mr Williams accepts that there is no evidence that Mrs Hogg knew that Miss Philips was at the garage while the calls were proceeding.
15. Submissions were made by both parties. The justices concluded:

"We were of the opinion that no reasonable tribunal properly directed might convict, and therefore there was no case to answer.

In coming to this conclusion we were of the opinion that of the 95 phone calls made to Mr and Mrs Hogg from a phone at Mr Hardy's garage, there was no proof that the respondent made all of the calls, and not all were received by Mrs Hogg. The injured party knew who was making the calls and that the respondent wanted reasons why Miss Philips was unsuccessful with her job application. The explanation made by Mr C Hogg to Mr Hardy ended the calls and no further communication was received between the parties. Having seen and heard from the witnesses we felt that in the particular circumstances of the case the pursuit of the course of conduct was reasonable within Section 1 (3) of the Act and was therefore not conduct amounting to the harassment of another. Accordingly we dismissed the charge."

16. It is clear, as Mr Williams accepts, that the justices accepted the reliability of the evidence from the prosecution witnesses. He also accepted that Mrs Hogg would have had a genuine reluctance to speak to the respondent about Miss Philips because of concerns about data protection. He spoke to the respondent about Miss Philips because of concern about data protection.
17. Mr Edwards began his submissions by complaining of the stage at which the justices reached their decision, having regard to the presence of the word "reasonable" in Section 1 (2) and in Section 1 (3) (c). We do not consider that there is merit in that point in itself. The justices are entitled to reach a decision on a charge under the section at that stage. The statute does not place a burden of proof on a defendant or require evidence from him before he is entitled to be acquitted. The justices may, in an appropriate use, legitimately form the opinion at the close of the prosecution case that a case is not made out.
18. On the facts of this case Mr Williams submits that the decision of the justices was a reasonable one. He relies on the distraught and upset condition of his partner, and on Mrs Hogg's awareness that he was seeking only an explanation as to why Miss Philips' job application had been treated in the way it was. No threats had been issued. The conduct persisted for no more than an hour-and-a-half. Soon afterwards, following a long conversation with Mr Craig Hogg, the respondent was amicable and professional. There was no further contact between the respondent and Mrs Hogg.
19. Mr Williams accepts that nothing turns upon the precise number of calls made. It appears clear from the summary of interview of the respondent that he was far from minimising the number of occasions on which he had rung. His conduct included putting his telephone on auto-redial.
20. Mr Edwards relies on the persistence of the conduct and the circumstances in which it was committed.
21. Conduct which may begin with what is or may be a legitimate inquiry may become harassment within the meaning of Section 1 of the 1997 Act by reason of the manner of its being pursued and its persistence. In this case there was evidence of 95 telephone calls to a small business in a period of one-and-a-half hours, in the course of which the caller said that he was "set for the night" and made clear that he knew the business woman's home address and her date of birth. That, in my judgment, is capable of amounting to harassment within the meaning of the section.
22. The recipient gave evidence that she felt intimidated and that is not, in my judgment, surprising. The respondent accepted at interview that he put the phone on auto-dial. He believed that it was the recipient of the calls who, in the face of that conduct, hung up, was the person being unreasonable.
23. In my judgment there was a prima facie case and no reasonable bench of justices could have found otherwise. If the respondent was to establish, by way of creating at least a reasonable doubt, that his perception of the situation was such that his conduct was reasonable, further explanation was required from him.
24. That does not affect the burden of proof. What this court has to decide is whether, on the evidence in fact present, that there was a prima facie case. In my judgment there was.
25. I would answer the question posed by the justices in the affirmative and allow the appeal.
26. I will hear any further submissions counsel may make as to what further course the court should follow.
27. MR JUSTICE PITCHFORD: I agree.
28. LORD JUSTICE PILL: Mr Edwards, what do you want to happen to this case?
29. MR EDWARDS: My Lord, I am very conscious that in fact tomorrow will be the two-year anniversary of the date of the actual offence itself. As you can see from the charge which was faced by the respondent, it occurred at the end of October, 31 October 2006. We are coming to two years since the date of this incident. Similarly whilst this is a harassment case, it may not be a case which ultimately courts would have considered to be appropriate in terms of the restraining order which would have been within their powers should they have found the respondent guilty. The reason I mention that is that the respondent has been charged with the offence of harassment. It is an allegation which he should answer. The only slight concerns that I think may be live in these circumstances is the fact that we are now two years down the line.
30. LORD JUSTICE PILL: It is a matter for you. You make your application.
31. MR EDWARDS: The application I think I have to make is that the matter is re-tried by the magistrates despite - - - - -
32. LORD JUSTICE PILL: A separate bench?
33. MR EDWARDS: I would suggest a separate bench, yes.
34. LORD JUSTICE PILL: Mr Williams?
35. MR WILLIAMS: To the extent that I can I would invite your Lordships not to order it be re-tried. This gentleman is 47 years of age. He is a man of good character. There has been no incident since this one-and-a-half hour period ended two years ago tomorrow. In those circumstances I would suggest it was quite out of character.
36. LORD JUSTICE PILL: We give no indication - we will retire in a moment - but if it goes back, a separate different bench?
37. MR WILLIAMS: I think it would have to be, yes.
38. LORD JUSTICE PILL: Anything in reply?
39. MR EDWARDS: No.
40. LORD JUSTICE PILL: We will retire. (Bench retired)

R U L I N G

41. LORD JUSTICE PILL: We remit the case to the Gwynedd Justices with a direction that the case be heard and be tried by a different panel of justices. Are there any other applications?
42. MR WILLIAMS: No.
43. MR EDWARDS: No.
44. LORD JUSTICE PILL: There will be no order for costs.
45. MR EDWARDS: No.