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Caurti v Director of Public Prosecutions
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
[2001] EWHC Admin 867, (Transcript: Smith Bernal)
HEARING-DATES: 22 OCTOBER 2001
22 OCTOBER 2001

Criminal law – Harassment – More than one complainant – Fear engendered in one partner that violence would be used against other on two occasions – Whether establishing course of conduct – Interpretation Act 1978, s 6 – Protection from Harassment Act 1997, ss 4, 7.

COUNSEL:
S Stevens on behalf of the Appellant; T Fitzgerald on behalf of the Respondent

PANEL: PILL LJ, CRESSWELL J
JUDGMENTBY-1: CRESSWELL J
JUDGMENT-1:CRESSWELL J:

[1] This is an appeal by way of case stated from the Marylebone Magistrates' Court against a decision of District Judge Roscoe dated 9 February 2001. The appellant was convicted of an offence contrary to s 4 of the Protection from Harassment Act 1997. The Defendant was made subject to a restraining order for 12 months.

[2] Section 4 of the 1997 Act provides, so far as material:
"(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion."

[3] Section 7 (interpretation) provides as follows:
"(3) A 'course of conduct' must involve conduct on at least two occasions.

(4) 'Conduct' includes speech."
[4] Thus before a person ("D") can be convicted of an offence under s 4(1), the prosecution must establish to the criminal standard of proof that:
(a) D's course of conduct (including speech) on at least two occasions
(b) caused the complainant ("X") to fear, on at least two occasions, that violence would be used against X and that
(c) D knew or ought to have known that his course of conduct would cause X to fear that violence would be used against X on each of those occasions.
(D ought to know that his conduct will cause X to fear that violence will be used against X on any occasion, if a reasonable person in possession of the same information would think the course of conduct would cause X so to fear on that occasion).

[5] As to (b) above, it is not sufficient if the course of conduct seriously frightened X as to what might happen: R v Henley [2000] Crim LR 582, Pill LJ. Further, the course of conduct must cause X to fear, on at least two occasions, that violence would be used against X (as opposed to Y, a member of X's family). Although there could be a case in which conduct ostensibly directed at Y might cause X to fear that violence would be used against X (Pill LJ in Henley supra), the prosecution must establish that the course of conduct caused X to fear on at least two occasions that violence would be used against X The fear of personal violence is a question of fact which can be inferred from the evidence, but so far as possible there should be direct evidence from the complainant as to the effect caused by the specific incidents relied on (see R v DPP [2001] Crim LR 396).

[6] Having set out the relevant legal principles, I turn to the case in question.

[7] On 16 July 2000 the appellant was charged by the respondent that between 10 July and 16 July at Matheson Road, London W14, he caused Tracey Sherman and Shaun Noel to fear that violence would be used against either of them by his course of conduct, which he knew, or ought to have known, would cause fear of violence to either Tracey Sherman or Shaun Noel on each occasion, contrary to s 4(1) and (4) of the Protection from Harassment Act 1997.

[8] The District Judge heard the complaint on 8th and 9 February 2001. The following is a short statement of the evidence. Tracey Sherman and her partner, Shaun Noel, gave evidence that they lived in Flat B, 22 Matheson Road, London W14, and were living there when, in July 2000, the Respondent moved into the flat directly above them, Flat C, 22 Matheson Road. At the time Miss Sherman was pregnant with her first child. There were arguments between the occupants of the two flats over the noise emanating from Flat C On 10 July 2000 Miss Sherman said that the appellant came to her door knocked on it and, after she answered, accused her of cutting his phone wire. He was abusive. He refused to leave when asked and Miss Sherman went back inside, closing and bolting her front door. Mr Noel returned home shortly after. The appellant returned to the front door of Flat B and banged on the door. Mr Noel opened the door. The appellant was again abusive. He again made accusations that his phone wire had been deliberately cut. He made threats of violence towards both Miss Sherman and Mr Noel and, Miss Sherman said, was threatening to stab Mr Noel. Miss Sherman went back into her flat. Shaun Noel shut the door leaving himself and the appellant outside the door. Miss Sherman dialled 999 on a mobile phone knowing that 999 was only to be used for emergencies. She feared for the immediate safety of her partner. Mr Noel agreed that the appellant did not lay a hand on him or Miss Sherman. Mr Noel said that he was calm and was not fearful for his own safety at that point. On 11 July Miss Sherman was in her flat alone. From her flat she heard and saw the appellant shouting out of his flat window. She heard him shout "you bitch" and "you whore". She believed these comments to be directed towards her. Computer paper was throw down into Miss Sherman's back yard. She stated that she did not phone the police at the time because she did not have a phone. When she went out later she did phone the Housing Association to report the matter, but she did not phone the police to report the incident or ask for help. She could not recall why she did not do so. She said "I felt my life was being threatened and I didn't feel safe with him living above me". From Miss Sherman's evidence the District Judge drew the inference that her fear of being in her flat or leaving it was an overall feeling. On 16 July there was a lot of loud music which considerably disturbed Miss Sherman and Mr Noel. They did not have a working telephone within the flat. Mr Noel left the flat to go to use the public telephone to call the Environmental Health Department. As he left the building he saw the appellant outside. The appellant began to follow Mr Noel and to swear at him. The appellant threatened to "cut off your head" and to "fuck your girlfriend". Mr Noel felt angry, uncomfortable and threatened. He was concerned for Miss Sherman's safety, particularly as she was pregnant. He feared that the appellant would force entry into his girlfriend's flat. He was not frightened for himself.

[9] The appellant gave evidence and denied that he had ever made any threats to either Miss Sherman or Mr Noel.

[10] The District Judge found as a fact that she accepted the evidence of Miss Sherman and Mr Noel.

[11] The appellant contended that, for the offence under s 4 to be proved, the prosecution must prove that, on the two occasions required under the Act, the person who fears the violence must fear that that violence is to be used against him/her rather than another.

[12] The District Judge considered that s 6 of the Interpretation Act applies and that it was correct to read s 4 of the Protection from Harassment Act 1997 as follows:
"A person whose course of conduct causes others to fear, on at least two occasions, that violence will be used against them is guilty of an offence if he knows or ought to know that his course of conduct will cause the others so to fear on each of those occasions."
(The District Judge's emphasis).

[13] The District Judge further considered that where complainants were members of the same household, it was appropriate to interpret the singular as the plural, and that in this case, on 10 July, Miss Sherman had feared that violence would be used by the appellant against Mr Noel, and on 16 July Mr Noel had feared that violence would be used by the appellant against Miss Sherman.

[14] The District Judge also considered that, in the particular circumstances of this case, the appellant's shouting out of his window on 11 July was directed at Miss Sherman and did cause her to fear that violence would be used against her, and that the appellant should have known, or did, know this.

[15] The questions stated for the opinion of this court are:
(1) was the District Judge entitled to find that one occasion of fear by A that violence would be used against his partner B, and one occasion of fear by B that violence would be used against A, could constitute the two occasions of violence required under s 4?
(2) was the District Judge entitled to find that an action that was not obviously violent (throwing paper into someone's yard) combined with abuse which that person (who was unseen within the dwelling) believed was directed towards them, could be conduct within the ambit of s 4?

[16] As to the first question, Mr Fitzgerald, for the Crown, concedes that in the light of the findings of fact made in the case stated, it cannot be contended that the District Judge was entitled to convict. I would answer the first question "no". The law is set out at the beginning of this judgment. In particular I repeat that the course of conduct must cause X to fear, on at least two occasions, that violence would be used against X (as opposed to Y, a member of X's family). I do not accept that it is permissible to use s 6 of the Interpretation Act to redraft s 4 in the way suggested by the District Judge. There could, of course, be cases where the requirements of s 4 are met in relation to two persons, but I repeat that the course of conduct must cause X to fear, on at least two occasions, that violence would be used against X (as opposed to Y, a member of X's family). It follows from the above that the second question does not strictly arise. I repeat, however, that before a person D can be convicted of an offence under s 4(1), the prosecution must establish to the criminal standard of proof the three ingredients, (a) to (c), above.

JUDGMENTBY-2: PILL LJ
JUDGMENT-2:PILL LJ:

[17] I agree. Section 6(c) of the Interpretation Act 1978 provides, in so far as is material, that words in the singular include the plural. The District Judge took the view that because the complainants were members of the same household it was appropriate to interpret the singular as the plural when construing s 4 of the Protection from Harassment Act 1997 upon the facts of this case. In my judgment, s 6(c) does not have the effect of allowing an act which causes a person other than the complainant to fear that violence will be used against him, without more, to be treated as causing the complainant to fear that violence will be used against the complainant.

[18] For that reason, and the reasons given by Cresswell J, I agree that question A must be answered in the negative.

[19] We will hear further submissions as to what consequential orders follow.

DISPOSITION:
Judgment accordingly.
SOLICITORS:
Davis Hanson; Crown Prosecution Service