Jersey Unreported Judgments

Magistrate's Court Appeal - appeal against conviction and sentence.

[2013]JRC257

Royal Court

(Samedi)

20 December 2013

Before     :

J. A. Clyde- Smith, Esq., Commissioner and Jurats Morgan and Crill.

Mark Wayne Chapman

-v-

The Attorney General

Advocate A. M. Harrison for the Appellant.

Advocate A. J. Metcalfe, Esq., for the Attorney General.

JUDGMENT

THE commissioner:

1.        The appellant appeals against his conviction and sentence before the Magistrate's Court on 23^rd May, 2013, of an offence under Article 3(1) of the Crime (Disorderly Conduct and Harassment) (Jersey) 2008 ("the Harassment Law"). 

Background

2.        The appellant had been in a relationship with Miss Kim Anne Campbell ("Miss Campbell") from April 2010 to November 2011.  They had a child who was born in 2011.  Miss Campbell also has an older child from a previous relationship.  The break-up of the relationship between the appellant and Miss Campbell was acrimonious and there were issues as to the appellant's contact with the child. 

3.        In February 2012, the appellant applied to the Family Division of the Royal Court for contact with and parental responsibility for the child.  On 4^th April, 2012, the Family Court ordered the appellant to have supervised contact with the child once a week through Millie's.  

4.        As in any acrimonious break-up, there had been many twists and turns in the history of the dealings between the appellant and Miss Campbell but for the purposes of this judgment we are going to highlight what we see as the key events for the purposes of this appeal. 

5.        On 15^th May, 2012, the appellant attended at the States of Jersey Police and made a statement alleging incidents of domestic abuse by Miss Campbell almost a year before namely between July 2011 and November 2011.  Miss Campbell was interviewed by the police on 17^th May, 2012, in respect of these allegations, but no action would appear to have been taken by the police in respect of them. 

6.        On 18^th May, 2012, Miss Campbell made a statement to the police alleging harassment by the appellant between June 2011 and April 2012 in the form of abusive texts.  The appellant was interviewed by the police on 22^nd May, 2012, and accepted that he had sent abusive texts, although he said this had been mutual; something not put to Miss Campbell in evidence.  He was issued with an "allegation of harassment form" which he signed.  The form was in the following terms:-

"An allegation of harassment has been made against you by Kim Campbell.

HARASSMENT IS A CRIMINAL OFFENCE under the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008.

Article 3(1) Offence - Harassment

A person must not pursue a course of conduct:- which amounts to harassment of another and that he/she knows or ought to know amounts to harassment of the other person.

Harassment can take many forms and examples can include:- wilful damage to property, assault, unwarranted verbal or physical threats, abusive communication or repeated attempts to talk to or approach a person who is opposed to this.

WARNING: The States of Jersey Police makes no comment as to the truth, or otherwise, of these allegations at this stage.  This information is being brought to your attention in the spirit of crime prevention and to make clear to you that this allegation has been made.

You are now advised to cease any behaviour towards the above individual(s), which may cause them further harassment.  Should you (or any person acting on your instruction) take such harassing action against them, you may be liable to arrest and prosecution."

7.        It was accepted that following the issuing of that form, the appellant ceased communicating with Miss Campbell by text or phone and there was a period of relative calm for some six months.

8.        On 13^th July, 2012, the Family Court ordered that the appellant have supervised contact with the child through JFCAS but it would appear that he was seeking a greater level of unsupervised contact, including staying contact, which Miss Campbell was resisting and that these matters were live before the Family Court over the material period.

The prosecution case

9.        There then took place three incidents which the prosecution alleged and the Magistrate found constituted the offence of harassment.  There was no dispute as to the incidents themselves as they were admitted by the appellant.

The first incident

10.      Miss Campbell had been attending a spiritual course run by "Feathers Healing", something of which the appellant was unaware, and on 27th October 2012, she posted a message on the "Feathers Healing" Facebook page, which read as follows:-

"Another fantastic evening with Carol Le Quesne and Kelly Pirouet at our psychic development course.  I feel blessed to have met them both! I am on an amazing spiritual journey which is enhanced by Carol.  I truly believe blessed to have met you both... To have Carol as a teacher and mentor is a privilege.  Kells is an angel with magical healing hands and so much more!!!  Love you both xxx will miss you this week enjoy your family time away xoxoxo"

11.      The appellant said in evidence that a friend sent him the link to this Facebook page and on 27th November, 2012, he posted this comment on that page in response:-

"Mark wrote "whose looking after the children, whilst your taking your journey Kim???""

Second incident

12.      That same morning, Miss Campbell received an automated Facebook e-mail informing her about the appellant's comment and it would appear that she accidentally clicked a link which took her to the appellant's own Facebook page, which she said she had not visited before, where she found that he had posted a comment (it was not clear when but it was some time before 27th November, 2012) which read as follows:-

"Still having problems with adulter and abuser ex-girlfriend Kim, please men and women be very careful of this woman, she doesn't mind either sex .... total nut case".

Third incident

13.      On 7th December, 2012, the appellant sent a Christmas card to Miss Campbell which contained some photographs from before her relationship with him.  The card contained a hand written note as follows:-

"Kim.

I found these photo's in my personal stuff you packed.  I don't require them; I have left a few of you and [the older child] for [the child's] sake for the future if she stays over."

The card was unsigned

14.      The evidence before the Magistrate consisted of formal admissions and the live testimony of Miss Campbell and the appellant.  The appellant was legally represented. 

Test on appeal

15.      Article 17(1)(b) of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949, as amended, provides for a right of appeal against conviction or sentence.  Article 20(3) provides as follows:-

"On any appeal under Article 17, the Royal Court may by order confirm, reverse or vary the decision of the Magistrate's Court, or may remit the matter with its opinion thereon to the Magistrate's Court, or may make such other order in the matter as it thinks just, and may by such order exercise any power which the Magistrate's Court might have exercised, and any order so made shall have the like effect and may be enforced in like manner as if it had been made by the Magistrate's Court."

16.      The test on appeal against conviction from the Magistrate's Court to the Royal Court is set out in Rushton-v-AG 1989/174 where the Court said this:-

"The court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there is evidence on which the Magistrate concerned could properly have come to the decision he did.  If there was that evidence, then even though the court might not necessarily have come to the same decision, the court does not lightly interfere with it.  The court has to be satisfied that there was insufficient evidence for the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him."

17.      In Graham-v-Attorney General [2013] JRC 014, Bailhache, Deputy Bailiff, observed that an appeal to the Royal Court is not in the same terms as an appeal under Article 26 of the Court of Appeal (Jersey) Law 1961 where the appeal is taken from the Royal Court to the Court of Appeal.  The terms of the statute give the Royal Court a wide discretion on appeal:-

"We consider the tests as set out in AG v Rushton will, absent any other considerations, be sufficient in most cases to lead to an appeal being refused where there was evidence upon which the Magistrate could reasonably reach the conclusion he or she did.  However the qualification in the Rushton case, that the Court would not lightly intervene where those were the facts, is in important qualification because it chimes with the lurking doubt/sense of unease approach which has been advanced from time to time in the English Courts on an admittedly different statutory test."

The Harassment Law

18.      Article 3 of the Harassment Law is in the following terms:-

"(1)     A person commits an offence if he or she pursues a course of conduct -

(a)       that amounts to harassment of another person; and

(b)       that he or she knows, or ought to know, amounts to harassment of another person.

(2)       For the purposes of this Article, a person ought to know that his or her course of conduct amounts to harassment of another person if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other person.

(3)       A person who commits an offence under paragraph (1) shall be liable to imprisonment for a term of 6 months and a fine of level 4 on the standard scale.

(4)       In this Article, to harass a person includes to alarm the person or to cause the person distress.

(5)       In this Article and Article 4, a course of conduct -

(a)       includes speech;

(b)       includes conduct of a kind that occurs on one occasion and conduct of a different kind that occurs on another occasion; and

(c)       does not include conduct that occurs on only one occasion."

19.      There is a statutory defence to the offence set out in Article 4 of the Harassment Law but although that was raised in the latter part of the hearing before the Magistrate, it was not relied upon for the purposes of this appeal.

20.      There is no Jersey case law on the interpretation of Article 3 of the Harassment Law, but it is well established that in matters of criminal law the Jersey Courts will look to English Law for guidance, in particular when the Law is, as here, based on an English statute, namely the Protection from Harassment Act 1997 (which also provides for civil remedies). The Magistrate, rightly, in our view, looked to the summary of what must be proved as a matter of law as set out by Simon J in Dowson & Others-v-The Chief Constable of Northumbria Police [2010] EWHC 2612 (where the civil tort of harassment was alleged which to succeed must be of an order to sustain criminal liability) as follows:-

"142. I turn then to a summary of what must be proved as a matter of law in order for the claim in harassment to succeed.

(1) There must be conduct which occurs on at least two occasions,

(2) which is targeted at the claimant,

(3) which is calculated on an objective sense to cause alarm or distress, and

(4) which is objectively judged to be oppressive and unacceptable.

(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.

(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: 'torment' of the victim, 'of an order which would sustain criminal liability'."

21.      There is no definition in the Harassment Law of what is meant by "harassment", Article 3(4) providing that it "includes to alarm the person or cause the person distress." According to the Oxford Dictionary, "to alarm" someone is to make them feel frightened, disturbed or endangered.  "Distress" means extreme anxiety.

22.      For the purpose of this appeal, we would draw out that part of Simon J's review of the English cases following the introduction of the Act:-

"132    The passage in the speech of Lord Nicholls was considered by Gage LJ in the later decision of the Court of Appeal in Conn v Sunderland City Council [2007] EWCA Civ 1492, at [12-].

'[12]    It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs.  What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa.  In my judgment the touchstone for recognizing what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.'

133     In R v Curtis (James Daniel) [2010] EWCA Crim 123, the Court of Appeal (Criminal Division) considered what constituted harassment, in a judgment of the Court given by Pill LJ.

'[29]    To harass as defined in the Concise Oxford Dictionary, Tenth Edition, is to 'torment by subjecting to constant interference or intimidation'.  The conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive.......'"

23.      It will be a matter of judgment on the facts of each case whether the course of conduct complained of is of sufficient gravity to justify the sanction of the criminal law.

24.      In Lau-v-Director of Public Prosecutions [2000] 1 FLR 799, a case involving two incidents some four months apart either side of a breakdown in a relationship, Schiemann LJ said at page 801G:-

"I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made.  One can conceive of circumstances where incidents, as far apart as a year, could constitute a course of conduct and harassment.  In argument Mr Laddie put the context of racial harassment taking place outside a synagogue on a religious holiday, such as the Day of Atonement, and being repeated each year as the Day of Atonement came round.  Another example might be a threat to do something once a year on a person's birthday.  None the less the broad position must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct."

25.      Latham LJ considered these propositions in Pratt-v-The Director of Public Prosecutions [2001] EWHC Admin 483, where he said at paragraph 10:-

"10.    In my view these propositions accurately set out the law and the cautious approach that any court should adopt where the allegation of harassment is based upon either two incidents or any other series of incidents, if few in number and widely spaced in time.  The issue for the court is whether or not the incidents, however many they may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct."

26.      The incidents in this case are not widely spaced in time, but they are few in number.

The appeal

27.      The Magistrate considered each incident in turn, consistent with the approach of the court in Dowson, in order to decide whether it was capable of constituting an act of harassment, before standing back and considering whether the defendant pursued a course of conduct that amounted to harassment.

28.      The Magistrate found Miss Campbell to be a credible witness and the appellant unconvincing:-

"Now there are essentially two witnesses in the case.  There is you and Miss Campbell.  I heard Miss Campbell this morning.  I did find her to be a credible witness.  I found her logical and consistent, and I found that she was clearly still distressed at the events which she was recounting.

On the other hand I did not find you to be a convincing witness.  I found you evasive about the Harassment Notice.  There was an admission that that was given to you by the police in a Police Station, and yet you sought to portray the giving of a Harassment Notice as a casual event almost a social contact between you and an old friend policeman who had a cup of coffee together, and it wasn't very serious and the matter had not particularly come to your notice.  Also, that you were angry with Miss Campbell.  You admitted that when you wrote your Facebook post on your own Facebook account.  And also you admitted that you didn't prevent, in fact you virtually condoned a member of your family writing the word "Slut" on her car."

29.      The Magistrate stressed the importance of context in a case such as this:-

"The context is everything in a case, in many cases of harassment and no less this one.  There were a number of incidents.  Three are alleged to amount to harassment which have to be seen in the context of a very fraught and acrimonious break up of a relationship, and very acrimonious Family Law proceedings, and I have no doubt that there has been hurt on both sides.

Mr Chapman you admitted that there had been abusive texts sent by you.  You also alleged that abusive texts were sent by Miss Campbell, but I don't think this was put to her specifically but you did admit that you had sent abusive texts and clearly there is a great deal of emotion on both sides in this case.

The context further is that you left the relationship in November 2011 and a Harassment Notice was served on you in May 2012.  You signed it and you admit you read it.  And the relationship between you went fairly quiet for about the next six months.  Now that's the background to the matter.

Exactly who did what to who and who said what to who, and each party's exact behaviour is not a matter really that this Court is going to determine that's more a matter for the Family Court, but I think suffice to say that there were very strong feelings on both sides."

30.      The Magistrate found that the three incidents complained of did cause Miss Campbell distress and there is no appeal against that finding. 

31.      Taking the first incident, the Magistrate found that in posting this comment on the Feathers Healing Facebook page the appellant was motivated by spite; it was a sarcastic comment to which he did not expect an answer.  It was done to humiliate Miss Campbell publicly with anyone who read the post.  It demonstrated that the appellant knew about her private life.  It was in breach of the harassment form and the appellant must have known that the communication would amount to harassment.

32.      Mr Harrison, for the appellant, did not dispute the Magistrate's finding that this message was sarcastic, motivated by spite and targeted at Miss Campbell, but submitted that more was required to support the Magistrate's conclusion, following Dowson, that the post:-

(i)        Was calculated in an objective sense to cause alarm or distress;

(ii)       Was objectively judged to be oppressive and unacceptable (which may depend on the social context in which the conduct took place); and

(iii)      Crossed the line between conduct that was unattractive or unreasonable and conduct which was of an order that it would sustain criminal liability.

33.      Mr Harrison argued that the message was neither abusive nor threatening - it was sarcastic.  Objectively, it did not appear to have been calculated to cause alarm or distress.  A message that is merely sarcastic (as opposed to being abusive or threatening) does not meet the test of oppressive or unacceptable conduct and that whilst the comments might properly be described as unattractive or unreasonable, they did not cross the line.  It could not, he said, properly be described as conduct that might torment Miss Campbell or which might sustain criminal liability. 

34.      In her evidence in chief, Miss Campbell said that she felt shaken by the message because it was an invasion of her privacy.  She had sent a "private message" to a friend.  However, in our view this was manifestly not a private message, as it had been posted on a website accessible by the public at large.

35.      Furthermore in our view the "allegation of harassment form" was a warning against any future conduct on the part of the appellant that constituted the criminal offence of harassment; it did not prohibit (nor could it) any further communications between the appellant and Miss Campbell at all.  It warned against further communications that were "abusive".  It cannot be said that this message was abusive in itself and the Magistrate did not find that it was.  In essence, it was the fact that a message had been posted on the site that distressed Miss Campbell rather than its contents.

36.      From our reading of the transcripts we have reservations as to whether this incident, taken on its own, was capable of constituting an act of harassment.

37.       In respect of the second incident, the Magistrate found that the message posted on the appellant's own Facebook page was abusive, being aimed at Miss Campbell's sexuality and morality.  Objectively, it was oppressive and unacceptable.  She found that it was targeted at Miss Campbell:-

"It was public.  It wasn't sent directly to her, but in my view the only reason for putting it on Facebook was that you knew that she would come across it or that people would refer her to it." 

38.      Mr Harrison, for the appellant, limited his arguments in relation to this incident to the Magistrate's finding that this message was targeted at Miss Campbell.  He said it was not sent directly to Miss Campbell and she only came across it by chance.  He submitted that there was insufficient evidence to support the finding that the only reason for putting the message on his Facebook page was that he knew that she would come across it, or that other people would refer her to it.  There was no evidence that Miss Campbell ever visited his Facebook page on purpose, or that amongst the appellant's friends and family there were individuals who might refer her to it.  There was insufficient evidence, he said, to support the Magistrate's conclusion that his assertion that he believed his Facebook comments were only visible to his family and friends was not credible.

39.      In our view this was, objectively, an abusive message and although we had reservations from reading the transcripts as to whether it was targeted at Miss Campbell, it cannot be said that there was insufficient evidence to support the Magistrate's findings.

40.      Turning to the third incident, the Magistrate found that the distress of Miss Campbell was exacerbated by her belief that the appellant had been in her flat without her knowledge to gain these photographs; something which was denied by the appellant. The Magistrate expressly made no findings about that but went on to say this:-

"It was effectively in her view a declaration from you that firstly you could enter her flat at will, see her possessions, interfere with her property, and an effective declaration that you would get unsupervised access to [the child] even though those matters were still under consideration by the Family Court."

41.      As the Magistrate said, ordinarily the returning of photographs to a person would be an innocuous and probably kind act, but:-

"... here the Harassment Notice is in force, and you know the contents of that Notice.  Very shortly after the Facebook posts and during Family Proceedings you knew you shouldn't have contacted Miss Campbell at all.  You had a legitimate route for contact to her via JFCAS or via a lawyer.  Why therefore did you need to contact her in this way?

I don't, moreover find it credible that she accidently packed photographs of her when you left.  You talk about her flinging clothes from a bag into ... from a wardrobe into a bag, and this isn't just the odd photograph that might have got caught up with property, this is a number of photographs.  And also these photographs have nothing to do with you, these photographs are not of you together with your daughter which she might have been ... she might have put in a bag, but they were of herself at an earlier age and photographs of her other [older child].  I don't find it credible that they accidently got into your bag.  I don't know how you obtained access to them.  But I do find that sending them back to her was a menacing message, and the message was that you have her property and she doesn't know how you came about it, and that you will have [the child] to stay, and there's a degree of power play in this message.

And again a further note of menacing, is the fact that the card was unsigned.  In this context I find that this amounted to harassment and you knew that and an objective observer would have agreed. Clearly it was targeted at her and it was sent to her, and in my view it was calculated to cause alarm and distress.  Why did you say you had kept some instead of asking through JFCAS could you have the odd photograph.  Why were you pre-empting the Court's decision about the child being allowed to stay with you? Why if it was a civilised note did you not sign it?  I find that in these particular circumstances, although not in general circumstances this is oppressive and unacceptable, and again in these particular circumstances, particularly in view of the Harassment Notice, the Family Proceedings and the proximity of the previous Facebook post that this is serious enough to merit criminal sanction."

42.      Mr Harrison submitted that the facts did not support the conclusion that the appellant's conduct:-

(i)        Was calculated, in an objective sense, to cause alarm or distress;

(ii)       Was objectively judged to be oppressive and unacceptable (which may depend on the social context in which the conduct took place); and

(iii)      Crossed the line between unattractive or unreasonable conduct and conduct which might torment the victim or sustain criminal liability.

43.      It was clear, he said, from both the handwriting and the contents of the message that the card was from the appellant (as acknowledged by Miss Campbell in her evidence) and the absence of a signature was insufficient evidence upon which to conclude that the card was menacing.

44.      The message to the effect that the appellant was keeping back some photographs "for the future if she stays over" (our emphasis) was insufficient evidence, he said, to conclude that there was a degree of "power play" in the message or that the appellant was pre-empting the Court's decision about the child being allowed to stay with him.

45.      It seems correct to say, from the evidence of both Miss Campbell and the appellant, that it had been made clear in the Family Proceedings that Miss Campbell did not want the appellant to communicate directly with her, but there was no order or undertaking to that effect and the "allegation of harassment form" did not (and could not) prohibit any communication at all.  The appellant could have sent the photographs either via the lawyers or to JFCAS, but there was manifestly no attempt to conceal who the card was from and we find it difficult to see how the lack of a signature, whilst perhaps unfriendly, can really be described as menacing.  Furthermore, the use of the word "if" indicates to us that the appellant was not pre-empting the decision of the Family Courts.

46.      The Magistrate made it clear that this incident, taken on its own, would not have constituted an act of harassment but in her view did so when considered in the context of the first and second incidents-the Facebook posts. For our part we had considerable reservations from our reading of the transcripts as to the very extensive conclusions she drew from this incident even in the context of the Facebook posts.

47.      Notwithstanding our reservations, it is necessary to stand back and look at the appellant's conduct on all three occasions to see whether it constituted a course of conduct amounting to harassment; as part of a campaign of harassment. It is the course of conduct that has to amount to harassment, not the individual occasions which form part of that course of conduct. Quoting from Archbold 2013 Edition at paragraph 19-355:-

"In Iqbal v Dean Manson Solicitors, 161 N.L.J. 288, CA (Civ.Div) [2011] EWCA Civ 123, it was held: (i) that each of three letters sent by the defendant, a firm of solicitors, to its former employee, the claimant, now acting as solicitor for a person against whom the defendant had instigated civil proceedings, particularly when viewed in light of each other, arguably amounted to a deliberate attack on the professional and personal integrity of the claimant in order to pressurise him to decline to act for his client or to advise his client to meet the demands of the defendant; each of the letters, when considered side by side, arguably evidenced a campaign of harassment (Thomas v. News Group Newspapers Ltd and Majrowski v. Guy's and St Thomas's N.H.S. Trust (as to both of which, see ante, 19-337); even if the first two letters were not capable of constituting harassment (as the court below had found), it was the course of conduct that had to amount to harassment, rather than individual instances forming part of the course of conduct; a first letter, by itself, could appear innocent and could even cause no alarm, but, in the light of subsequent letters, that first letter could be seen as part of a campaign of harassment (applying Kelly v. DPP, ante); and (ii) the claimant could refer to the defendant's defence, which contained further allegations against him, not necessarily for the purpose of constituting an occasion helping to make up a course of conduct and thus a cause of action, but as throwing evidential light on the proper understanding, interpretation and assessment of the three letters; however, without deciding the question, the defence could also arguably be viewed as part of the course of conduct amounting to harassment". (our emphasis)

48.      The English Act, on which our law is based, was passed for the purpose of dealing with the phenomenon of "stalking" but it is clear that it may be used to prosecute a range of persons apart from those commonly referred to as "stalkers".

49.      Whilst this Court, working from the transcripts, may have reached different findings to those of the Magistrate, the fact of the matter is that she heard the evidence, not this Court. There was no dispute as to what happened in each of the three incidents. The issue was the appellant's intent and there clearly was evidence (in essence his testimony) upon which she could properly have come to the conclusion that there was a course of conduct comprising the three incidents which was targeted by the appellant at Miss Campbell and which was calculated by him, in an objective sense, to cause alarm and distress.

50.      The key issue for us is the Magistrate's finding that the appellant's course of conduct over these three incidents was of sufficient gravity to cross the line that sustains criminal liability, so as to constitute the crime of harassment. Can his course of conduct be properly described as "torment by subjecting to constant interference or intimidation"?

51.      Each case will depend on its own facts and context, but looking at the facts in some of the reported cases where criminal liability was sustained, we note that Lau-v-The Director of Public Prosecutions [2000] 1 FLR 799 involved an assault or threats of an assault. R-v-C (Sean Peter) [2001] WL 535720 involved the sending of letters by a constituent to a Member of Parliament containing a measure of abuse and material capable of being construed as threats of violence or death. Kellett-v-The Director of Public Prosecutions [2001] WL 172031 involved calls by a neighbour to the employer of a public officer alleging fraud, an extortionate salary and that she was not working for her employers when she should have been.  Pratt-v-The Director of Public of Prosecutions [2001] WL 753479 involved assaults by an estranged husband on his wife whilst they were living under the same roof and in breach of undertakings given.  Here in Petriella-v-the Attorney General [2013] JRC 163, the defendant had sent text messages to a social worker working for the Children's Service which were manifestly threatening and intimidating. By contrast Dowson involved conduct on the part of a senior police officer that was insensitive, belittling and overbearing and likely to undermine Dowson's self-confidence and esteem, but which failed by a considerable margin to sustain criminal responsibility.

52.      On examining the facts of this case as found by the Magistrate, we are left with a real sense of unease as to the appellant's conviction. The message he placed on his own Facebook page was admittedly unacceptable, but we were otherwise concerned with the placing of a sarcastic message on the "Feathers Healing" Facebook page and the returning of photographs to Miss Campbell with a card. As a course of conduct it was, in its context and certainly in part, unattractive and unreasonable, but in our judgement it was not of such gravity as to justify the sanction of the criminal law. Taking into account the wide discretion given to the Royal Court on an appeal from the Magistrate's Court, we feel it right to intervene and set aside the conviction and the restraining and costs orders made pursuant to it.

Authorities

Crime (Disorderly Conduct and Harassment) (Jersey) 2008.

Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949, as amended.

Rushton-v-AG 1989/174.

Graham-v-Attorney General [2013] JRC 014.

Court of Appeal (Jersey) Law 1961.

Protection from Harassment Act 1997.

Dowson & Others-v-The Chief Constable of Northumbria Police [2010] EWHC 2612.

Lau-v-Director of Public Prosecutions [2000] 1 FLR 799.

Pratt-v-The Director of Public Prosecutions [2001] EWHC Admin 483.

Archbold 2013 Edition.

R-v-C (Sean Peter) [2001] WL 535720

Pratt-v-The Director of Public of Prosecutions [2001] WL 753479.

Petriella-v-the Attorney General [2013] JRC 163.