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Director of Public Prosecutions v Dunn
QUEEN’S BENCH DIVISION (DIVISIONAL COURT)
[2001] 1 Cr App Rep 352, 165 JP 130, Times, November 1
PILL LJ, BELL J
4 OCTOBER 2000

CRIMINAL; Criminal Law, Criminal Procedure
Criminal procedure – Harassment – Charge bad for duplicity – Separate charge to be made for each claimant – Whether court was right to come to conclusion it did on material before it – Protection from Harassment Act 1997.

PILL LJ: [1] Bell J will give the first judgment.

BELL LJ: [2] This is a prosecutor’s appeal by way of Case Stated against a decision of the Crown Court sitting at Cambridge to the effect that an information charging the Respondent, Robert John Dunn with harassment, contrary to ss.1 and 2 of the Protection from Harassment Act 1997 was bad for duplicity.

[3] The information and charge against the respondent was:
“That you did, at Whitebridge Cottages, Lynn Road, Chettisham, on days between 24 December 1997 and 29 May 1998 pursue a course of conduct in breach of Section 1 of the Protection from Harassment Act 1997 which amounted to harassment of Michael Andrew Breedon and Sheila Marie Breedon and which you knew, or ought to have known, amounted to such harassment.
Contrary to Section 2 of the Protection from Harassment Act 1997.”

[4] The respondent pleaded not guilty to that information before the magistrates, but after a summary trial he was found guilty by the East Cambridgeshire Justices on 25 March 1999. He appealed to the Crown Court against his conviction and the Crown Court heard and disposed of the appeal on 2 March 2000. The procedure which was followed was that counsel for the prosecution, Mr Myatt, who has appeared before us for the Appellant today, opened the Crown case and the court then heard legal argument upon the submission of defence counsel, Miss Hobson, who has appeared for the respondent again today, that the charge which Mr Dunn faced was bad for duplicity.

[5] For the purposes of its decision on that submission, the Crown Court assumed, with the agreement of the parties, that the allegations made in Mr Myatt’s opening were true and we make the same assumption for the purposes of this appeal.

[6] The matters alleged by Mr Myatt, on behalf of the Crown, are summarised as follows in the Case Stated:
“The parties named in the charge, Mr and Mrs Breedon, have lived at 3 Whitebridge Cottages, Lynn Road, Chettisham, Ely for just over 19 years. In 1996 the Respondent [Mr Dunn] moved into the next-door property number 4. After a time various disputes arose between the parties over the boundaries of the respective properties amongst other matters.”

[7] The course of conduct alleged by the prosecution to amount to harassment was as follows:

“i) on 24 December 1997 Mr Breedon and his son were in their garden when the defendant [Mr Dunn] approached them by coming onto their garden and became verbally abusive causing Mr Breedon and his son to have to go inside their house;

ii) on 29 December 1997 [Mr Dunn] came to the front door of Mr and Mrs Breedon’s house and whilst thumping on it demanded that Mr Breedon came out so that he, [Mr Dunn] could assault him;

iii) on 22 February 1998 [Mr Dunn] Spoke to Mrs Breedon in her garden telling her that he was not happy with a row of conifers marking the boundary of their properties and that he was going to chop them down.

iv) on 29 March 1998 Mrs Breedon saw [Mr Dunn] Walk across her garden and peer cautiously around her shed. When he saw that she had seen him he disappeared;

v) on 30 March 1998 Mr and Mrs Breedon returned home to find that several of their conifer trees marking the boundary between the two properties had been uprooted and the holes filled in. A boundary wall belonging to them had been dismantled and the bricks left in a pile in their garden. Later Mr Breedon started putting the trees back in when [Mr Dunn] ran across to him and started pulling the trees out. Mr Breedon was then chased by [Mr Dunn] when he tried to photograph [Mr Dunn] in the process of pulling the trees up;vi) on 31 March 1998 Mr and Mrs Breedon discovered that [Mr Dunn] had built a wall in his garden with the bricks from their wall recently dismantled.

vii) on 3 April 1998 Mrs Breedon noticed that two of the original conifer trees which should form the boundary between the two properties had been uprooted and were lying in her garden;

viii) on 23 May 1998 Mr Breedon was in his garden trimming the conifer hedge and [Mr Dunn] sat on the boundary wall and stared at him in an intimidating manner;

ix) on 24 May 1998 Mr and Mrs Breedon noticed that bricks had been taken from the bottom of their garden and appeared to be outlining paths in [Mr Dunn’s] garden;

x) on 25 May 1998 Mr Breedon was in his garden weeding when [Mr Dunn] came out of his own house and stood near to Mr Breedon and said ‘I am going to make you fucking pay. I am coming up to your school and you’ll fucking pay, you dickhead.’

xi) on 27 May 1998 Mrs Breedon was in her garden weeding and [Mr Dunn] shouted at her ‘if he keeps shouting things at me across the fence I’m going to kick his fucking head in’.

xii) on 29 May 1998 Mrs Breedon was in her garden taking photographs of a greenhouse which had been put up on their property when [Mr Dunn] walked over to her and said ‘what are you taking a photograph of me for, you fucking cow, that’s an invasion of my privacy’.

In interview [Mr Dunn] denied all allegations, stating that it was Mr and Mrs Breedon who were harassing him.”

[8] The ruling of the Crown Court was that in the light of those assumed facts the charge which Mr Dunn faced was bad for duplicity and that there should have been a separate charge in respect of each claimant. Mr Breedon on the one hand and Mrs Breedon on the other. It was agreed by counsel that it was too late to correct the perceived fault by amendment of the charge which Mr Dunn faced. As a result Mr Dunn’s appealed succeeded.

[9] The Case Stated does not give reasons for the ruling, but counsel have told us that the basis of the ruling was that the relevant provisions of the 1997 Act refer to harassment of another in the singular, whereas the information alleged harassment of two other people, Mr and Mrs Breedon.

[10] The question for the opinion of this Court is whether the Crown Court was right to come to the conclusion which it did on the material before it.

[11] The statutory provisions which are relevant or potentially relevant on this appeal are as follows.

[12] Section 1(1) of the Protection from Harassment Act 1997 provides that:
“A person must not pursue a course of conduct –
(a) which amounts to harassment or another, and
(b) which he knows or ought to know amounts to harassment of the other.”

[13] Subsection (2) reads:
“For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

[14] Section 2(1) of the Act provides that:
“A person who pursues a course of conduct in breach of section 1 is guilty of an offence.”

[15] Section 3 of the Act provides a civil remedy in the case of an actual or apprehended breach of s.1 lying in the hands of the ‘person who is or may be the victim of the course of conduct in question’.

[16] Section 4 creates a separate offence to that in ss.1 and 2 of the Act, of putting a person in fear in a case where his course of conduct will cause “the other” to fear violence.

[17] Section 5 provides for restraining orders in the case of a person convicted of an offence under s.2 or s.4 s.5(2) provides for orders protecting “the victim” of an offence under s.2 or s.4.

[18] Section 7 applies for the interpretation of ss.1 and 5 of the Act. Subsection (2) provides:
“References to harassing a person include alarming the person or causing the person distress.”

[19] Subsection (3) provides:
“A ‘course of conduct’ must involve conduct on at least two occasions.”

[20] Section 6 of the Interpretation Act 1978 provides that:
“In any act unless the contrary attention appears, (c) words in the singular include the plural and words in the plural include the singular.”

[21] The main thrust of Mr Myatt’s argument for the Appellant is that by virtue of s.6 of the 1978 Act the starting point in the interpretation of s.1 of the 1997 Act is that the references to “another” and the “other” should be read to include the plurals of those forms. He contends that no contrary intention appears from the Act itself, despite the repeated use of the singular in the provisions of the Act to which I have referred. He relies upon the case of Lynn Elizabeth Mills v Director of Public Prosecutions unreported a decision of a division of this Court, case number CO/2747/98 given on 17 December 1998.

[22] That authority was not before the Cambridge Crown Court, no doubt because it is a decision which is not, so far as I am aware, formally reported in any of the generally read reports.

[23] Mr Myatt in his skeleton argument has drawn our attention to the speeches in Director of Public Prosecution v Merriman,[1973] AC 584, [1972] 3 All ER 42, in particular those of Lord Morris at page 593 A to E and Lord Diplock at page 607C of the former report, which make it clear that the rule against duplicity that is, that only one offence should be charged in any one count, information or summons, have always been applied in a practical rather than a strictly analytical way for the purpose of determining what constituted one offence. The question of whether someone has committed one offence or more than one offence is best answered by applying common sense in deciding what is fair in the circumstances. It will often be legitimate to bring a single charge in respect of what may be called one activity, even though it may involve more than one act. (See also Lord Widgery in Jemmison v Priddle [1972] 1 QB 489, [1972] 1 All ER 539, at page 495 of the former report).

[24] In the case of Mills, there were two defendants, mother and son, who both were alleged to have pursued a course of conduct which amounted to harassment of two women over a period of six months by directing insults, threats and verbal abuse of them. The Justices rejected a submission that in the case of each, the charge was bad for duplicity. They dismissed the case against Mrs Mills’ son but convicted her. Mrs Mills’ appealed by way of Case Stated. The Case Stated made no reference to any findings of fact, but it appears that the two complainants named as victims of harassment in the same charges were neighbours of each other and in turn neighbours of Mrs Mills and her son.

[25] The two complainants, while being neighbours, lived in separate houses to each other. The main thrust of the argument for Mrs Mills was that the charge against her was bad for duplicity because the two victims had made separate allegations against Mrs Mills and the Justices were therefore placed in a position where they might have found the case proved in respect of one victim, but not the other, and yet they were unable to reach separate verdicts. This was said to create sentencing problems and problems concerning the terms of any restraining order which might be made under the 1997 Act and it was therefore unfair to the Appellant.

[26] In her judgment in that case, Steel J referred to the case of Merriman, the case of Jemison v Priddle and other authorities. Towards the end of her judgment, she said:

“From the information now before this Court it is clear that although the two complainants knew each other and were neighbours there is no other nexus or sufficient nexus between them, and the numerous complaints each makes are almost entirely unrelated to the other. There was only one occasion when both complainants were present, one to witness what took place concerning the other. The victims here cannot be described as members of a close knit definable group.

Having considered both the form and the substance of the allegation I am satisfied that in all the circumstance which relate to this case the information is bad for duplicity. Two offences should have been charged.”

[27] Otton LJ agreed. He said:
“The charge in this case was bad for duplicity because it named two complainants who were not members of a ‘close knit definable group’. If they had been, for example, sisters living in the same house where they were allegedly harassed and the conduct complained of was clearly aimed at both of them on each occasion then it would have been not inappropriate to include both (or more) complainants in one charge.

Another example is a case where racial harassment is directed at a family living together it might also be appropriate to have one charge rather than several charges for each member of the family.

This observation is not inconsistent the use of the singular ‘another’ and ‘other’ in the section rather an inclusion in the plural. In DPP v Williams unreported Rose LJ stated in passing that he found a submission based on section 6 of the Interpretation Act 1978 ‘forceful’. I am persuaded that in regard to section 1 of the Protection from Harassment Act 1997 it would be appropriate to construe the singular ‘another’ and ‘other’ as including the plural. The wording of the section does not of itself preclude the naming of more than one person as complainants in appropriate circumstances.

I respectfully adopt the reasoning of Browne LJ in Wilson that in so deciding it would be legitimate to look at the factual context and that such questions are best answered by the application of common sense and fairness.”

[28] Faced with the case of Mills, Miss Hobson before us this morning has conceded that she can no longer sustain the argument which she presented to the Cambridge Crown Court, that the use of singular terms, not just in s.1 of the Act but in other provisions of the Act, means that a separate offence is committed whenever any one individual is subjected to a course of conduct amounting to harassment. She concedes that s.6 of the Interpretation Act 1978 does apply to the relevant provisions of the 1997 Act so that words in the singular include words in the plural. However, Miss Hobson, having analysed the witness statements actually made pursuant to s.9 of the Criminal Justice Act by Mr and Mrs Breedon, argues that each of them give an account of conduct alleged to amount to harassment on different occasions; that in relation to six occasions in the case of one witness and five in the case of the other, what Mr Dunn is alleged to have done was directed at the witness, the single witness alone. Miss Hobson goes on to contend that there has to be a single course of conduct amounting to harassment for an offence to be committed under ss.1 and 2 of the Act and that in the light of the allegations summarised in the Case Stated and referred to in the witness statements of Mr and Mrs Breedon, there is more than one course of conduct alleged in this case. Moreover, she says that in order for the information as presently drafted to be sustainable, there must be at least two separate occasions when there is an act of harassment directed at both the alleged victims. In support of that argument, she relies upon that part of Otton LJ’s judgment which gives the example of:
“. . . sisters living in the same house where they are allegedly harassed and the conduct complained of was clearly aimed at both of them on each occasion.”

[29] Miss Hobson goes on to say or contend that it would be unfair if Mr Dunn had to face the information in the form that it was laid against him, because it would be possible for the prosecution, if harassment was proved against one of the complainants but not the other, to allege that nevertheless the information had been brought home, but neither she nor, more importantly, Mr Dunn would know the precise basis for the conviction that would follow. This, Miss Hobson says, would lead to injustice. In other words, as I understand Miss Hobson’s argument, she alleges that despite the concession that she makes about the singular including the plural in the construction of the relevant provisions of the Act, there is in fact duplicity in the case of this particular information which may lead to injustice so far as Mr Dunn is concerned.

[30] I respectfully agree with the approach of Otton LJ to the question of duplicity where two or more complainants are named in one charge under ss.1 and 2 of the 1997 Act. Moreover, I do not believe that Otton LJ meant to say, in the part of his judgment upon which Miss Hobson particularly relied, that a charge which named two complainants could only be free of duplicity where the conduct complained of was clearly directed at both of them present together on at least two occasions.

[31] Firstly, it seems to me that conduct complained of might be aimed at two people, although only one was present. Secondly, it seems to me that the example of two sisters given by Otton LJ was only an example of a case where, in his judgment, two complainants might be named in a charge without duplicity. I do not take it to be an exclusive definition of what is required to avoid duplicity if two victims are to be named in a charge or information.

[32] The offence under s.2 of the Act consists of pursuing a course of conduct. A course of conduct must by necessity involve a number of acts. Indeed s.7(3) of the 1997 Act provides that it must involve conduct on at least two occasions. Obviously such a course of conduct may readily amount to harassment of a number of victims. In those circumstances, I respectfully agree with Otton LJ that the use of the singular in s.1 involves the plural. In my view, Miss Hobson’s concession to that effect has rightly been made. That conclusion seems to me to make good sense and I can see no unfairness in principle to a defendant, provided that his acts amount to pursuing a single course of conduct which amounts to harassment of a number of closely connected victims in a close knit definable group as Otton LJ and Steel J put it.

[33] I do not see unfairness or risk of injustice as Miss Hobson apprehended in the circumstances of this case. The prosecution, as Mr Myatt has conceded, have nailed their colours firmly to the mast of a course of conduct amounting to harassment of both Mr and Mrs Breedon together and Mr Myatt concedes that should he only be able to establish a course of conduct amounting to harassment of one of the complainants, then we would not succeed on his information.

[34] I would leave over for another day the question of whether in the case of an information which alleges and specifies a large number of victims, the course of conduct alleged in the information may still be established in substance even if it appears on the hearing of the evidence that not every member of the body identified by individual names has been harassed. In the circumstances of this case, I see no potential for the unfairness which Miss Hobson describes.

[35] On the facts of this case, although in the most part the statements of Mr Breedon on the one hand and Mrs Breedon on the other speak of separate instances involving Mr Dunn, the adjudicating court would, in my view, be entitled to hold, if reliable evidence in accordance with the s.9 statements were given, that all Mr Dunn’s acts were directed at Mr and Mrs Breedon together as man and wife living in the same house and related in significant part to the boundaries between their property and that of Mr Dunn, and that they therefore comprised one course of conduct pursued by Mr Dunn which amounted to harassment of both Mr and Mrs Breedon together.

[36] For those reasons, I would allow this appeal and remit the case to the Crown Court to continue the hearing of Mr Dunn’s appeal on the evidence to be adduced. It will be for the adjudicating tribunal, in this case the Cambridge Crown Court, to decide whether it was sure that the evidence proved a single course of conduct amounting to harassment of both Mr and Mrs Breedon together.

PILL LJ: [37] I agree, for the reasons given by Bell J. The charge in this case was under s.2 of the Protection from Harassment Act 1997. Two victims of alleged harassment were named in the charge.

[38] The reasons of the Crown Court in their Case Stated are brief and include the statement that there: “. . . should have been a separate charge in respect of each complainant.”

[40] Miss Hobson concedes that in the light of the case of Mills v DPP to which Bell J has referred, that contention is not sustainable. Unfortunately Mills was not cited to the Crown Court though, in fairness to counsel, it does not appear to have been reported. This case should not have been stopped at the outset by reason of the naming of two complainants in the charge.

[41] I agree that there is a significant nexus in this case on the basis described by Bell J Miss Hobson’s submission is that the case can only proceed if both persons named are present on each and every occasion of harassment which is alleged to have occurred. It would be unfair to allow the case to proceed when many of the allegations were on occasions when only one of the two named complainants was present.

[42] I do not accept that submission. If, as here, the prosecution case is that, to adopt the expression of Otton LJ and Steel J in Mills, the complainants were a “close knit definable group”, then the allegations are not bad by reason of the fact that only one of them was present on a particular occasion.

[43] This was a case of a husband and wife living together in the same property. They are alleged to have been harassed at and in relation to that property and a dispute with the defendant. Evidence may, in my judgment, be given of incidents at which only one of the two complainants was present provided, on the evidence as a whole, the court can properly conclude that the incident was part of a course of conduct which was aimed at the unit concerned.

[44] Miss Hobson relies upon the words “each occasion” in the passage of the judgment of Otton LJ in Mills which Bell J has cited. Reading the judgment as whole, I do not consider that Otton LJ was taking a view different from that which I have expressed. Otton LJ was concerned to make clear, in that part of his judgment, that the course of conduct must clearly be aimed at both complainants constituting the closely knit definable group.

[45] I agree that the case should be remitted to the Crown Court for the hearing of the charge to proceed.