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 WC2A 2LL
		19th February 2010

1. MR JUSTICE OUSELEY: This case involves appeals by way of case stated by both defendant and prosecutor against decisions of the Bedford and Mid Bedfordshire Magistrates' Court.
2. On 21st April 2009, the Magistrates' Court dealt with three charges against the defendant, Mrs Jones, all arising from her behaviour towards her neighbours Mr and Mrs Lawson. The Jones' leased from Mr Lawson one of two garages at the end of his driveway and her behaviour over this garage and driveway had become the source of friction. Mr Jones also owned the door to the garage she rented from them. All the offences were alleged to have taken place at or near this driveway.
3. Charge 1, on which Mrs Jones was acquitted, alleged that on 10th August 2008 she had used racially aggravated threatening and abusive words and behaviour within the hearing or sight of Mrs Lawson contrary to section 5 of the Public Order Act 1986 and section 31(1)(c) of the Crime and Disorder Act 1998. The allegation of racial aggravation was made in accordance with section 28 of the 1998 Act. The Magistrates' Court found that, although Mrs Jones had used threatening and abusive language, she had not used that language out of racial hostility and acquitted her. The DPP appeals against that acquittal saying that the Magistrates misdirected themselves as to the law on racial aggravation.
4. Charge 2, on which Mrs Jones was found guilty, alleged that between 9th August and 30th November 2008 she pursued a course of conduct amounting to harassment of Mr Lawson by making abusive and threatening comments towards him, blocking the driveway to his house on several occasions, repeatedly accessing the driveway when prohibited from doing so and making an accusation about his conduct to the police which led to the police visiting him. This was contrary to sections 2(1) and (2) of the Protection from Harassment Act 1997. Mrs Jones appeals against her conviction on the ground that the particulars which the Magistrates found proved, and there were only two, could not amount to acts of sufficient gravity to constitute harassment. The DPP contends, by way of additional support for the conviction, that the Magistrates wrongly excluded from their consideration the facts found proved on the first charge.
5. Charge 3 also alleged harassment between the same dates, this time of Nilufar Lawson, Mr Lawson's wife. Mrs Jones was acquitted. The DPP appealed but during the course of the argument accepted that he could not sustain the appeal. The incidents particularised were not found proved. The incident proved was not particularised; the appeal is dismissed and I say very little more about it.
6. The Magistrates, in a clear and careful case, found the following facts proved on charge 1. Mrs Jones, apparently drunk, had come to the driveway in front of the Lawsons' home and had engaged in an altercation with them. She was abusive and shouting. The case stated said:

"C - The accused said to Mrs Lawson 'So he had to go to what country to buy you and get you pregnant?'

D - Mrs Lawson said she was born and bred in England. The accused replied sarcastically and dismissively 'Good for you darling ... Most of his previous girlfriends have been such tits'.

E - The accused also said to Mrs Lawson 'Tell that fucking asshole to (obscure)'.

F - The accused being present on the driveway aggravated the situation - she did not move off when asked.

G - The accused said to the police under caution in interview 'so comments were made by myself along the lines of internet bride - now I don't consider that racist'.

H - The accused used threatening, abusive and insulting words and behaviour which were likely to cause harassment alarm or distress to Mr and Mrs Lawson on the 10th day of August 2008."

7. The Magistrates then explained their reasoning as to why they would have found the offence of threatening behaviour proved had it not been charged as a racially aggravated offence but acquitted Mrs Jones because they did not find it to have been racially aggravated.
8. It is necessary to set out the relevant statutory provisions and the decision in DPP v Howard [2008] EWHC 608 (Admin) in order to understand their reasoning.
9. Section 28 of the Crime and Disorder Act 1998, so far as relevant, provides:

"(1) an offence is racially ... aggravated for the purposes of sections 29 to 32 below if -

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial ... group; or

(b) the offence is motivated (wholly or partly) by hostility towards members of a racial ... group based on their membership of that group."

10. DPP v Howard was a case exclusively concerned with section 28(1)(b) because the racially abusive words it dealt with:

"I'd rather be a Paki, I'd rather be a Paki, I'd rather be a Paki than a Cop."

were chanted to two off duty white policemen to demonstrate their worthlessness by the comparison. The sole motivation of that defendant was hostility towards the police. Section 28(1)(a) could not apply because the hostility had nothing to do with the victim's race. Section 1(b) was held not to apply because the undeniably racially offensive language was not motivated by racial hostility on the defendant's part.

11. In this case, the Magistrates explained their reasoning, citing from paragraph 12 of the judgment of Moses LJ in Howard to the effect that section 28 required the court to focus on the motivation for the use of the words in question. His analysis in Howard was treated as being of general application to racial aggravation under both section 28(1)(a) and under section 28(1)(b).
12. The Magistrates said, in the case stated:

"... there is a common requirement of hostility towards members of a racial or religious group. Motivation may be considered in finding whether the offender demonstrated racial hostility at the time of the offence, before or after doing so.

13. If motivation was not applied in our decision, we found that the reason the Accused committed the offence was because there was animosity towards Mr Lawson over a long-running disagreement between them. She was motivated by hostility towards Mr Lawson over the ongoing neighbour dispute concerning the use of the garage and driveway, not because she was hostile to Mrs Lawson's race. Accordingly, we acquitted the Accused of charge 1. Had charge 1 not included the element of racial aggravation, we would have convicted the Accused for the offence.

13. Mrs Carter for the DPP submitted that racial aggravation could be proved either under section 28(1)(a) or section 28(1)(b) or under both limbs. The Magistrates had erred in applying Howard to both limbs when it was exclusively dealing with limb (b), the only limb which could apply to the facts of that case. There was a distinction between the two limbs. Limb (b) did require the racially offensive language to be motivated by subjective racial hostility on the part of the defendant, but limb (a), could be satisfied if the words used demonstrated racial hostility to the victim who was present, even if not motivated by actual racial hostility towards the person racially abused. So the fact that the target of hostility, as found by the Magistrates, was Mr Lawson, was irrelevant if the words used showed objectively racial hostility towards Mrs Lawson, who was also present.
14. Mrs Carter supported her submissions by reference to RG, LT v DPP [2004] EWHC 183 (Admin). In this Divisional Court decision, May LJ held that there was a distinction between limbs (a) and (b) of section 28(1) of the 1998 Act. The he said at paragraph 13:

"It is, in my judgment, evident from the wording of that section that section 28(1)(a) requires the prosecution to prove facts which indicate that the offender had demonstrated racial hostility at the time of committing the offence or immediately before or after doing so. That is not so much to indicate the offender's state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim...

14. By contrast, section 28(1)(b) is concerned with the defendant's motivation. The offence has to be wholly, or in part, motivated by racial hostility. That does concern the defendant's state of mind, because motive is necessarily a state of mind. But the prosecution has to establish that state of mind and, no doubt, the evidence required to establish such a motive will often, perhaps usually, involve the kind of demonstration of racial hostility to which I have referred in relation to section 28(1)(a). The difference, however, is that section 28(1)(a) essentially requires proof of what the offender did, and what he or she did at the time of committing the offence or at a time closely related to it. Motive, in my judgment, is at least capable of being established by evidence relating to what the defendant may have said or done on another or other occasions."

15. Ms Chidgey, for Mrs Jones, submitted that there was a subjective component within limb (a). The offender had to demonstrate his or her actual subjective hostility to the victim for racial aggravation to be proved. That is what the Magistrates found was missing in this case. Ms Chidgey supported her submission by reference to what Richards LJ said in Johnson v DPP [2008] EWHC 509 (Admin). A black male threatened two white male parking attendants by saying that they were picking on him because he was black and they should leave the black area of Sheffield and issue tickets to white people in the more prosperous area of Dore.
16. The Crown Court convicted Mr Johnson of using racially aggravating words on the basis of limb (a) alone. The appeal against conviction was dismissed. First, the words were capable of demonstrating racial hostility. Richards LJ then said in paragraph 11:

"Whether the appellant was in fact demonstrating racial hostility by the use of those words, rather than simply demonstrating hostility towards the two parking attendants based on their job as parking attendants, was a question of fact for the Crown Court. But there was an entirely adequate evidential basis for the finding that was made as to racial hostility.

12. ... There may of course be cases where the words used are capable of demonstrating racial hostility, but it is found as a fact that there was no racial hostility demonstrated at all: see for example Director of Public Prosecutions v Howard ..."

17. In my judgment, Mrs Carter's submissions are correct and, on the facts found, the defendant should have been convicted on charge 1. It is not in dispute that racial aggravation may be proved by proof of limb (a) or (b) or both. They are different in meaning. The relevant distinction is directly supported by what May LJ said in RG, LT v DPP, not cited, or at least not referred to, in either Johnson or Howard. The Magistrates misdirected themselves on the law because they treated Howard as authority for the proposition that a subjective motivation of racial hostility had to be proved for each limb, which it is not.
18. Even though the facts of a particular case may satisfy both limbs simultaneously, limb (a) involves no examination of subjective intent or motivation behind the demonstration of racial hostility for the victim. It merely requires the demonstration of racial hostility. It contains an objective test of whether the defendant demonstrated racial hostility to the victim. That makes particular sense where a victim is present towards whom such racial hostility is demonstrated. The offence is concerned with the objective view of whether racial hostility had been demonstrated, in part because of its effect upon the victim, rather than being concerned with a subjective motivation of the defendant. By contrast, limb (b) is examining the defendant's subjective motivation whether an individual victim is present or not. The former deals with what is demonstrated by the behaviour, the latter with the motivation behind it.
19. Ms Chidgey's submission that limb (a) requires a verbal or other demonstration of an actual subjective hostility towards the victim would mean that limb (a) was largely, if not wholly, otiose, because the subjective motivation would always be at issue and the case would therefore satisfy limb (b), if it satisfied any limb. The very language of the offender "demonstrating hostility" connotes an objective test and is inapt to express a requirement for a demonstration of a subjective motivation of racial hostility.
20. The decision in Howard does not contradict what I have said because it was dealing exclusively with limb (b). The comment of Richards LJ in Johnson draws upon Howard but misapplies it obiter seemingly to a (1)(a) case, to which it has no real application. The weight which would otherwise be attributed to this obiter has to be significantly qualified. As I have said, the decision in RG, LT, which draws the distinction was not cited in Johnson. Accordingly, the Magistrates misdirected themselves in law in requiring there to be motivation of racial hostility in order to convict of this offence under limb (a) of section 28 of the 1998 Act.
21. There is no point in remitting the matter for the trial to continue in the light of the findings of fact which the Magistrates made. The language used plainly demonstrates on any objective view hostility towards Mrs Lawson based on her racial group and whether Mrs Jones subjectively intended to demonstrate such hostility or whether her motivation was simply to insult and abuse Mr Lawson by reference to his wife's race is neither near nor there. The Magistrates should have convicted on charge 1.
22. The first question in the case stated on the DPP's appeal is:

"Given the findings of fact we made in charge 1, were we right to apply the reasoning set out within paragraph 12 of DPP v Howard (2008), a case which specifically dealt with section 28(1)(b) of the Crime and Disorder Act 1998 where the subsections are worded in the alternative?"

I answer that question no. The second question relevant at this stage is question 4:

"Could any Bench of Justices properly directed upon the facts and upon the law have acquitted the respondent, in other words, was our decision perverse?"

The answer to that is yes, on the basis of the proper understanding of the law. If their understanding of the law had been correct, their decision might very well not have been irrational but their understanding of the law was incorrect and so it follows the conclusion is not sustainable. The DPP's appeal is allowed and the case will be remitted to the Magistrates with a direction to convict.

23. I turn from there to charge 2 and Mrs Jones' appeal against her conviction by the Magistrates.
24. Section 1 of the Protection from Harassment Act 1997 makes it an offence to pursue a course of conduct which amounts to harassment of another and which the person knows or ought to know amounts to harassment of the other. Section 7(3) provides:

"A 'course of conduct' must involve conduct on at least two occasions."

25. The Magistrates found that two particulars of the offence were proved according to the case stated in Mrs Jones' appeal. These were first that Mrs Jones made threats that she would paint the garage door pink or blue depending on the sex of Mr and Mrs Lawson's unborn child and, second, that the appellant had reported Mr Lawson to the police for spreading rumours about her in the village. The Magistrates stated that they found no evidence that Mr Lawson had done this and found Mrs Jones' actions in that respect vexatious.
26. Although the Magistrates found three other actions, which they termed provocative actions, proved, they did not take them into account as part of the course of conduct leading to the conviction because they had not been particularised in the charge. They were used as evidence to assist the Magistrates in deciding that Mrs Jones had done the two acts which were particularised. Ms Chidgey submitted that these two acts, whether individually or in combination, were not of sufficient gravity to warrant criminal sanction. Conduct could not become harassment unless it reached a degree of gravity sufficient to constitute a crime. She relied on what Lord Nicholls of Birkenhead said in Majrowski v Guys and St Thomas's National Health Service Trust [2006] UKHL 34; [2007] 1 AC 224 at paragraph 30:

"Where the ... quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."

27. I accept that obviously, but I emphasise, in the light of the submissions, that Lord Nicholls' reference to misconduct is a reference to the offending course of misconduct. He is not suggesting that each individual act constituting the course of conduct must be of sufficient gravity to be a crime in itself. Such an analysis would seriously undermine the purpose and effectiveness of the Act. It would add little to the sequence of offences already committed and would fail to deal with a serious and common aspect of harassment which is the repetition of acts which singularly would be inoffensive and not really troubling but which become harassment on repetition.
28. Ms Chidgey also referred me to what Gage LJ said in Conn v Sunderland City Council [2007] EWCA Civ 1492, a civil damages claim under the 1997 Act, at paragraphs 12 to 15. He pointed to the importance of context in judging whether the course of conduct was of sufficient gravity. What might harass someone and be grave in a hospital might not be so in a factory or barracks. The present context is of course a domestic setting and the enjoyment of one's house.
29. There are also passages in paragraph 15 of his judgment in which, when discussing Majrowski, Gage LJ could be taken to be saying that each incident itself had to cross the threshold of criminality to be part of the course of conduct charged. These passages had emboldened Ms Chidgey's submission that Mrs Jones' appeal should be allowed because the two particulars found could not individually be offences. But that would be a misreading of paragraph 15 of Conn in the light of Majrowski and the impact which such a conclusion would have on the purpose and effect of the 1997 Act. Gage LJ was viewing incidents for their role in the gravity of the conduct as a whole. Accordingly, insofar as it was pursued, I reject the submission that the appeal should be allowed because the incidents individually do not amount to crimes.
30. Ms Chidgey also drew my attention to the need for a connection between the various incidents; they had to be more than sporadic occasions; (see R v Curtis [2010] EWCA Crim 123). But that necessary connection was found to exist here. Curtis also held in paragraph 29, citing from paragraph 30 of Thomas v News Group Newspapers Ltd [2004] EWCA Civ 1233:

"The Act does not attempt to define the type of conduct that is capable of constituting harassment. 'Harassment' is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct."

31. Mrs Carter submitted that the two incidents found proved, taken together, amounted to harassment. Mr Lawson was targeted by acts intended to harass and Mrs Jones knew that they would have that effect and that the police would follow up her allegation by interviewing Mr Lawson as she intended.
32. The Magistrates found:

"For charge 2, we were of the opinion that a reasonable person pursuing the course of conduct under paragraph 4 above, would have known it would amount to harassment of Mr Lawson. Accordingly, we convicted the appellant of charge 2 on findings A and B in paragraph 4 because we found the appellant's conduct to be abusive, threatening and anti-social, causing Mr Lawson distress and to feel harassed. The conduct went beyond what would otherwise be deemed a neighbourly dispute."

33. I am satisfied that, on the two particulars found proved, the Magistrates, properly directing themselves in law as to the requisite gravity of the course of conduct to constitute harassment, could not reasonably have convicted, even in a domestic context. A threat by Mrs Jones to paint her own garage door blue or pink may be insulting or provocative given the basis upon which her decision would be made, but it is of itself quite trivial. I accept that making allegations to the police in order to cause a neighbour to be interviewed is capable of being part of harassing conduct through its intended indirect effect and it is not to be discounted as such in order to avoid individuals being deterred from drawing offences to the attention of the police. C v CPS [2008] EWHC 148 (Admin) illustrates how communication to a third party can be harassment of another through their intended but indirect effect.
34. However, the evidence shows here that a neighbour of Mr Lawson wrote to Mrs Jones' employer to tell him of a pending criminal trial which she faced and she reported Mr Lawson to the police. Of itself, this perhaps unpleasant and ill-judged retaliation against the wrong person, and characterised as vexatious by the Magistrates' Court, is not particularly grave. Mrs Carter submitted that the two incidents taken together did amount to a course of conduct which reached the degree of gravity necessary to warrant a criminal sanction.
35. In my judgment, even though the context was domestic, viewing those two incidents together but taken in isolation from the other facts proved but not relied on as part of the course of conduct, no reasonable bench could conclude that they amounted to harassment. The fewer the incidents there are in the course of conduct, the more severe each is likely to have to be for the offence to be made out.
36. Mrs Carter next submits that the facts found on charge 1, which occurred on 10th August 2009, should have been considered by the Magistrates on charge 2 and the total of three incidents therefore were capable of amounting to harassment. She submitted that the Magistrates had wrongly excluded from their consideration the facts relating to charge 1, given that the scope of the dates of the harassment offence, starting on 9th August 2009, had been deliberately chosen to cover what occurred on 10th August. Ms Chidgey said that case had never been put on the basis that the facts in relation to charge 1 were to be treated as part of charge 2. It would in any event have been unfair and duplicitous for the facts of charge 1 to be both the subject of charge 1 and a particular of the harassment charge. The Magistrates said that they had excluded the facts on charge 1 from charge 2 because the charge 1 facts were not particularised in relation to charge 2 and were a duplication of it.
37. In my judgment, first, it is quite possible that the inclusion of the facts of charge 1 as found by the Magistrates, whether there was a conviction or not, could cause reasonable Magistrates to take a different view of charge 2 from the one which I have concluded was inevitable, namely that there was no course of harassing conduct. Second, Mrs Jones, and any defendant, is entitled to know the particulars alleged against him or her and what acts are relied on as constituting the course of harassing conduct. Although the Magistrates' expression of their views shows that the role of charge 1 in relation to charge 2 was raised and the dates specified for charge 2 are broad enough to encompass the facts of charge 1, I am not in a position, on the facts found, to judge whether the Crown changed its basis of case during the trial or whether the appeal involves a further change of stance. However, if the facts of another separately charged offence are also to be relied on as part of a course of conduct, that should be made clear at the outset to the defendant so that any issues of fairness or duplicity can be dealt with. Third, I consider that such facts of a separately charged offence as Magistrates may find proved, whether they lead to a conviction or not, are capable of forming part of the course of conduct which amounts to harassment. It would be artificial to hold that a fact which was the subject matter of a separate charge fell to be excluded from the part which it might legitimately play in demonstrating the array of conduct to constitute harassment. It would be artificial to pretend, for the purposes of an offence under the Protection from Harassment Act, that it had somehow not happened. Fourth, where is now the case, here, the specific facts of an offence charged have led to a conviction, and where it is that conviction which makes all the difference between a course of conduct falling short of harassment and amounting to harassment, it is oppressive and unfair for those facts in effect to lead to two convictions.
38. Accordingly, in relation to charge 2, the question posed by the Magistrates has to be answered yes. The question is:

"Were we wrong in law to conclude that the following findings of fact in charge 2 were capable of amounting to harassment within the meaning of the Protection from Harassment Act 1997 namely:-

A. The threat made by the appellant that she would paint the garage door baby blue or baby pink according to the sex of Mr and Mrs Lawson's unborn child.

B. The appellant reporting Mr Alan Lawson to the police for spreading rumours about her in the village?"

Although the appeal in relation to charge 3 has not assisted them, it gives rise to two issues in relation to charge 2.

39. The second question in the DPP's appeal was this:

"Were we right to exclude our findings of fact in respect of the conduct of the 10th day of August 2008 from our assessment of whether there had been a course of conduct under section 2 Protection [from] Harassment Act 1997, given that it fell within the date specified within the charges?"

The answer is, on acquittal, no; on conviction, on the facts found in charge 2, yes.

40. The third question in relation to the DPP's appeal was:

"Were we right to restrict ourselves to conduct expressly specified in the charges so that we excluded our findings of fact in relation to non-specified conduct which fell within the relevant dates?"

The answer to that is yes.

41. In the upshot, I allow the DPP appeal on charge 1 and Mrs Jones' appeal on charge 2 and I dismiss the DPP's appeal on charge 3. The two outstanding decisions therefore will be returned to the Magistrates with a direction to convict on charge 1 and to acquit on charge 2.

No applications?

42. MS CHIDGEY: My Lord, in relation to charge 2, the appellant was paying privately for her representation up until 10th September, when legal aid was granted. My Lord, there is therefore an application for costs to be awarded from central funds for costs up to 10th September incurred by the defendant in pursuance of her appeal.
43. MR JUSTICE OUSELEY: Now, what is the basis upon which I should or should not award such costs?
44. MS CHIDGEY: My Lord, the legislation that provides for costs to be awarded in these circumstances is found at the Prosecution of Offences Act 1985, section 16.
45. MR JUSTICE OUSELEY: Where are you reading from?
46. MS CHIDGEY: I am reading, my apologies, from Archbold, paragraph 6-3.
47. MR JUSTICE OUSELEY: 6-3, yes.
48. MS CHIDGEY: Section 16, turning over to subparagraph (5), which is found in paragraph 6-6, subsection (5) should read, where (a) any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench division, the court may make a defendant's costs order in favour of the accused.
49. MR JUSTICE OUSELEY: And the basis upon which I should exercise that power? Is it merely the fact you have won or -- I would normally be very happy to make such an order, but I am just concerned that actually you have lost. You have each won one and each have lost one. Does that effect the way I should exercise my powers in relation to charge 2?
50. MS CHIDGEY: My Lord, if I can be as bold to suggest that any award of costs could be specifically for costs incurred in the appellant's appeal as opposed to those costs incurred by the defending of the Crown.
51. MR JUSTICE OUSELEY: Well, of course, I think that would have to be that. Do you have any observations at all? I know it does not directly affect you, but you are not making an application.
52. MRS CARTER: I am not, my Lord, no.
53. MR JUSTICE OUSELEY: Very well, I will make an order for -- one moment. (Pause) You were mistaken for Mrs Carter, Ms Chidgey, and vice versa. No offence intended, I am sure.
54. Very well, you may have your order but only in relation to charge 2, up to the date when you got legal aid.
55. MS CHIDGEY: My Lord, I am grateful.