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Bishop v Uxbridge Magistrates Court
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
CO/1758/2000, (Transcript: Smith Bernal)
HEARING-DATES: 12 FEBRUARY 2001
12 FEBRUARY 2001

Criminal law – Harassment – Course of conduct – Information alleging conduct on one date only – Justices hearing evidence relating to conduct occurring before date on information – Whether justices entitled to construe course of conduct as including acts of harassment occurring on unspecified occasions prior to that date – Protection from Harassment Act 1997, s 2.

INTRODUCTION:
ROSE LJ:
[1] Mr Justice Penry-Davey will give the first judgment

COUNSEL:
D Middleton for the Appellant; J McGuinness for the Respondent
PANEL: ROSE LJ, PENRY-DAVEY J
JUDGMENTBY-1: PENRY-DAVEY J

JUDGMENT-1:
PENRY-DAVEY J:

[2] This is an appeal by way of case stated from a decision of the Uxbridge Magistrates on 2 March 2000 when the appellant was convicted of harassment. The offence is created by the Protection from Harassment Act 1997. Section 1 provides in subsection (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."

[3] Section 2(1) provides:
"2(1) A person who pursues a course of conduct in breach of s 1 is guilty of an offence."

[4] Section 7 provides under subsection (3) that:
"A 'course of conduct' must involve conduct on at least two occasions."

[5] The information in the case was in the following terms:
"On 4 December 1999 at 79 Denecroft Crescent, Hillingdon pursued a course of conduct which amounted to the harassment of Mrs Janet Dicks (sic) and which you knew or ought to have known amounted to harassment contrary to s 2(1) and (2) of the Protection From Harassment Act, 1997."

[6] The following facts found by the magistrates are set out in the case stated:
"(a) That the appellant and Mrs Hicks, the subject of the information, had been next door neighbours for many years.
(b) That in April, 1999, following an incident involving the appellant's car and that of Mrs Hicks, Mrs Hicks called the police.
(c) That the police visited the appellant at his home in relation to the call.
(d) That the appellant was very aggrieved by the conduct of the police and that he blamed Mrs Hicks for this.
(e) That since that time, and up to 4 December, 1999, the appellant verbally abused and threatened Mrs Hicks on numerous occasions.
(f) That the abuse was verbal and consisted of the appellant calling Mrs Hicks a fucking old cow and fucking old bitch and that the appellant threatened that he would continue in this mode until Mrs Hicks apologised to the appellant for calling the police in April, 1999.
(g) That this abuse took place at different times of the day when Mrs Hicks was alone in her garden or at her garage and that it culminated on 4 December, 1999 when the appellant spoke to Mrs Hicks in her garden and said, If you call the fucking police again I'm going to jump that fucking fence and smash your fucking face in or words of very similar effect.
(h) That this verbal abuse was insulting and that Mrs Hicks felt intimidated and threatened as a result of it and that it interfered with her enjoyment of normal personal freedom to come and go unhindered.
(i) That as a result of the appellant's behaviour Mrs Hicks had the police called on a number of occasions."

[7] The Justices heard evidence from the complainant and a police officer called for the prosecution and the appellant, called in his own defence. At the conclusion of the prosecution case they heard and rejected a submission of no case to answer, the submission being that there was no evidence of a course of conduct on the date alleged in the information, in that there was only a single incident on that date.

[8] The respondent contended that the word used in the Act was pursue and that the specific date charged was the culmination of the course of conduct pursued by the appellant. The Justices accepted that contention and concluded that they were not restricted to looking only at 4 December 1999 in order to find a course of conduct, but could take into account relevant preceding behaviour of the appellant and, accordingly, having found the facts which I have set out, convicted the appellant and fined him £100.

[9] The questions for this court are first whether the Justices were entitled to admit the evidence of events alleged to have occurred outside the date contained in the information and secondly whether having admitted that evidence they were entitled to find that a course of conduct included those events as well as events occurring on the date stated in the information.

[10] The appellant submits that the admission and consideration of evidence of alleged acts of harassment occurring on dates other than on the date in the information was in breach of the principles governing the content of informations and material averments therein.

[11] Miss Middleton relies on the provisions of r 100 of the Magistrates' Court Rules 1981 and submits that there needs to be some reasonable indication of the extent of an allegation. She draws an analogy with the provisions of the Indictment Rules 1971 in suggesting that the object of the rules is to ensure that an accused person should know with some degree of certainty the nature and extent of the case against him and should not be misled or prejudiced by lack of particularity in the charge. She acknowledges the effect of s 123 of the Magistrates' Courts Act 1980 which provides that no objection shall be allowed to an information for any defect in it in substance or in form or for any variance between it and the evidence. But she relies on the decision of this court in Wright v Nicholson [1970] 1 All ER 12, 54 Cr App Rep 38 for the proposition that fundamental defects should, nonetheless, be remedied by amendment if injustice might occur. She submits that the date constituted a material averment and that no departure from it should be permitted if to do so might lead to a defendant being misled or prejudiced in the preparation of his defence.

[12] She suggests there was no basis in law for the admission of the evidence relating to any date other than 4 December and that the admission of such evidence was misleading and prejudicial to the appellant in that without it there would have been insufficient evidence to convict him of the offence.

[13] Mr McGuinness for the respondent submits that either the date specified in the information was correct in the sense that it reflected the prosecution case that the offence had been committed by the appellant, pursuing a course of conduct which, by 4 December, amounted to harassment, or if it was incorrect, in the sense that the information should have specified a period of time concluding on 4 December, that error caused no prejudice to the appellant who knew full well the case he had to meet. He points out that the offence is made out only by proof of the pursuit of a course of conduct which amounts to harassment.

[14] The prosecution case was that the conduct amounted to harassment on 4 December and was thus complete on that date. He submits that the mere fact that the offence culminates on a particular date does not preclude the admission of evidence relating to events before that date which go to prove elements of the offence. Alternatively, he submits that the appellant knew well that it was the contention of the prosecution that a series of incidents of harassment culminated in the incident on 4 December and that if he was in any way taken by surprise by the adduction of evidence relating to events before that date he could have applied for an adjournment; he did not.

[15] The evidence was admitted without objection at the time and the complainant was cross-examined. Had such objection been made prior to admission of the evidence, an application could have been made to amend the information, if necessary. Mr McGuinness submits that once the evidence was admitted the Justices were entitled to take it into account and give it such weight as they thought fit.

[16] In my judgment the answer to both questions posed in this case is yes. The evidence relating to dates other than 4 December was admitted without objection and clearly in no way took the appellant by surprise. In the light of r 100 of the Magistrates' Court Rules 1981 if objection had been taken on the basis of a fundamental defect an application could have been made to amend the information to allege a period between dates rather than a specific date, but that was not done and there was, in my judgment, in the circumstances of this case, no question of any injustice or prejudice to the appellant.

[17] In any event, evidence about events other than those on 4 December may well have been admissible to prove the appellant's knowledge of the effect that his conduct would have on the complainant. In my judgment, in this case, the evidence having been admitted without objection, the Justices were clearly entitled to take it into consideration, and depending on their view of its weight to rely on it or to reject it in coming to conclusions in the case. They accepted the evidence and convicted the appellant. There is no basis in law, in my judgment, for the attack on this conviction and, accordingly, the appeal should be dismissed.

JUDGMENTBY-2: ROSE LJ
JUDGMENT-2:
ROSE LJ: [18] Miss Middleton who did not appear before the Justices has striven skilfully to persuade this court that what occurred before the Justices was wrong in law, unjust and prejudicial, and that the consequential conviction cannot properly be sustained. For the reasons given by my Lord, what occurred before the Justices was none of these and, accordingly, despite Miss Middleton's submissions, this appeal fails.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Desmond Wright, Hayes, Middlesex; CPS, Harrow