QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Jenifer Howlett
|- and -
William McCormick (instructed by JS & A) for the Defendant
Hearing date: 14th December 2005
Crown Copyright ©
The Hon. Mr Justice Eady:
"References to harassing a person include alarming the person or causing the person distress. "
This provision has encouraged Mr Holding to argue that he is, in effect, entitled to have Mrs Howlett and her house watched as often as the whim takes him, and to have her followed in the street, and into shops and restaurants, provided any individual act of surveillance does not involve alarming Mrs Howlett or causing her distress. Meanwhile, he can derive satisfaction from her suffering the anxiety and uncertainty of not knowing when "big brother" will strike. There can be little doubt that such behaviour would constitute a "course of conduct" for the purposes of s.1(1) of the statute. I put to Mr McCormick in the course of argument the hypothesis that a victim of surveillance had been watched on six occasions but only realised what was happening on the seventh when he was caused alarm. On his case, there would be no "course of conduct" because there had been no alarm or distress on the previous occasions. Moreover, if the surveillance continued six more times, without the victim spotting it, those occasions would also have to be left out of account. I regard this as an artificial approach.
that I should construe any "defences" under the 1997 Act so as to be compatible with the exceptions recognised by Article 8(2).
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
"Subsection (1) does not apply to a course of conduct if the person who pursued it shows -
(a) that it was pursued for the purpose of preventing or detecting crime,(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) that in the particular circumstances the pursuit of the course of conduct was reasonable".
Mr McCormick placed reliance both upon (a) and (c).
only if it is "necessary... for the prevention of disorder or crime". In so far as there is a lack of clarity as to the scope of s.1(3)(a), I would have no difficulty in concluding that it is not necessary to permit anyone to harass his fellow citizens by surveillance. It may well be necessary to leave room for security or law enforcement agencies to have such a power in appropriate circumstances, but that is a different matter.
"... It will be a defence to show that the conduct was pursued for the prevention and detection of crime, or under an enactment or rule of law. Because of the nature of the activities pursued by stalkers, unless special provision is made, some police activities could be caught by the Bill. That, of course, is not our intention. I am also aware that the activities of journalists, salesmen, religious activists, debt collectors, private investigators and even political canvassers might fall within the scope of the Bill. We have therefore provided a defence of acting reasonably in the particular circumstances of the case in order to safeguard these legitimate activities. "
It would thus appear that (a) was indeed framed with law enforcement agencies in mind and that (c) was directed towards others carrying out the miscellaneous functions described. Even if that is too rigid a construction, a private citizen before being able to avail himself of (a) would at least have to show that there was, objectively judged, some rational basis for the surveillance. Here there was none. It was merely carried out in the hope that something unlawful might be exposed. I respectfully agree with Tugendhat J's conclusion in KD v Chief Constable of Hampshire  EWHC 2550 (QB) at  that an objective test must be applied.