QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
|BIRMINGHAM MAGISTRATES' COURT||Defendant|
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"In my judgment it is not open to Mr Barry merely to prepare an affidavit and allege this forms the basis of a criminal charge of harassment against his ex-wife. It has not been investigated and she has not been interviewed. He clearly has problems with certain police officers who have had many dealings with him in Wolverhampton, both in respect of the last trial and his activities of protesting for Fathers for Justice whilst dressed as Spiderman ..... If he is not under a minimal obligation to at least make a complaint to the police and see what they do about it, then in my opinion this would open the floodgates whereby individuals will begin private prosecutions instead of asking the police to do it. There must be public policy considerations that underline the issue of private prosecutions. The Crown Prosecution Service was formed in 1986 in order to provide a prosecution service independent of the police. It would be entirely different if he reported the matter to the police and they failed to do anything with it."
The legal framework
"Since the matter is properly within the magistrate's discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given. Plainly he [the justice] should consider the whole of the relevant circumstances.
In the overwhelming majority of cases the magistrate will not need to consider material beyond that provided by the informant. In my judgment however he must be able to inform himself of all relevant facts."
"24 Nowadays public prosecutions are the rule. So, usually, the court will be concerned to prevent its process being misused by a public prosecutor. But, in times gone by, when private prosecutions were the rule, the court must have had the power to guard against the corresponding danger of its process being misused by a private prosecutor."
(See also Lord Bingham at paragraph 16 and Lord Carswell at paragraph 32.)
Mr Barry's submissions
"(2) ..... 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 or involved harassment of the other."
In this case the district judge might have decided that those three incidents I have described from earlier this year came nowhere near constituting harassment under section 1. However he did not direct his mind to that particular issue but decided the application on the absence of a complaint to the police.