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Lau v Director of Public Prosecutions
CRIMINAL; Criminal Law
[2000] All ER (D) 224
QUEEN’S BENCH DIVISION (CROWN OFFICE LIST)
SCHIEMANN, SILBER JJ
22 FEBRUARY 2000

Criminal law – Harassment – Course of conduct – Evidence before court of two incidents four months apart – Whether incidents constituting a course of conduct – Protection from Harassment Act 1997, s.2

SCHIEMANN LJ: This is an appeal by way of Case Stated from a decision of the Metropolitan Stipendiary Magistrate, sitting at the Highbury Corner Magistrates’ Court on 3 June 1999, when he convicted the Appellant of the offence of harassment and then conditionally discharged him.

The offence of harassment was created by the Protection of Harassment Act 1997. Section 1 provides:

“(i) 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.”

Section 2(1) states that:
“A person who pursues a course of conduct in breach of s.1 is guilty of an offence.”
Section 3 gives a civil remedy in respect of it. Finally s.7 provides:
“(2) References to harassing a person include alarming the person or, causing the person distress.

(3) A ‘course of conduct’ must involve conduct on at least two occasions.”

The facts of the present case we have to take from the Case Stated. This tells us that:

“On the 20th day of April 1999 an information was preferred by [the Director of Public Prosecutions] against the Appellant . . . that he between November 1998 and 19 March 1999 . . . pursued a course of conduct which amounted to harassment of Pai Yin Wong and which he knew or ought to have known amounted to the harassment of her in that:

(i) In November 1998 he attended the victim’s home address and slapped her across the face;

(ii) Between 3 and 16 March 1999 he made abusive and threatening phone calls to the victim at her home address;

(iii) On 19 March 1999 he followed the victim on her way to her place of work;

(iv) Also on 19 March 1999 he attended the victim’s home address; and refused to leave on her request; and

(v) On 19 March 1999 he spoke to Ms Wong in a threatening manner. Contrary to s.2(1) and (2) of the Protection from Harassment Act 1997.”

In para 2 the Magistrate sets out the facts which he found and they were as follows:

“(i) The Appellant and Pai Yin Wong (the victim), a lady, were students at the Kingsway College where they met and became boyfriend and girlfriend.

(ii) In November 1998 the Appellant struck the victim at least once. Notwithstanding this the relationship continued although it had its difficulties.

(iii) By March 1999 the victim’s enthusiasm for the relationship had cooled. She had formed another friendship with a Mr Ka-Chun Lau. On 19 March he and the victim were outside her home. The Appellant arrived and in the presence of the victim threatened Mr Ka-Chun Lau with two bricks, speaking to him in Chinese. Mr Lau made no response but telephoned the police who arrived and arrested the Appellant.”

The Magistrate then sets out the evidence and, for my part, I think it unnecessary to go through that, save to note that the findings, which I have cited from para 2 of the case, fall far short of the total conduct alleged in the informations and amount effectively to findings in favour of the prosecution of the first and fifth particulars which are set out. There are no findings in relation to the second, third and fourth.

Paragraph 3 of the case continues:

“It was contended by the Appellant that in order for there to be a ‘course of conduct’ for the purposes of the Act, there had to be nexus between the incidents relied upon by the Crown. In this case, the first incident was a slap across the face in November 1998 whilst the relationship was ongoing. The second incident was the threatening of Ms Wong’s companion with two bricks in her presence on 19 March 1999, after the relationship had ended. The Appellant contended that there was no nexus between the two incidents. I did not accept the argument that there was a need to demonstrate a nexus between the incidents and accordingly made no finding as to whether there was any such nexus.”

Then he says in para 4 that:
“No contentions were put forward on behalf of the Respondent.”

He was not referred to any cases and he continues:
“I was of the opinion that there had been a course of conduct which amounted to harassment of Ms Wong, and accordingly I convicted the Appellant.”.

He poses the questions for this Court in this form:

“(a) the first question for the opinion of the High Court is whether there needs to be a nexus between the separate incidents of harassing conduct relied upon by the prosecution, in order for that conduct to amount to a ‘course of conduct’ for the purpose of s.1 of the Protection from Harassment Act 1997;

(b) the second question for the opinion of the High Court is whether there was sufficient evidence upon which the Appellant could properly be convicted of an offence under s.2 of the Protection from Harassment Act 1997.”

In front of us the Appellant has been represented by Mr Laddie. The prosecution have not appeared, perhaps taking the view that it is not sensible to spend more public money in relation to this small storm and an even smaller teacup.

As it seems to me the root question on which the Magistrate ought to have concentrated is whether or no, bearing in mind that he only found two of the incidents proved, separated as they were by some four months (one being a slap of the complainant and the other being a threat directed at the complainant’s boyfriend in her presence) and in the absence of any other relevant finding that can reasonably be described “as a course of conduct” by the Defendant. If that had been the question posed to us, for my part I would have answered it in the negative.

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. Nonetheless 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.

We are told by Mr Laddie that the approach adopted by the learned Magistrate was an essentially mathematical one where he said:
“Here are two incidents: one directed at her and one in her presence, albeit directed to someone else, and that shows that there is a course of conduct.”

For my part, I think he erred at that point. The situation had changed. One does not know why the first slap was administered. At that stage the relationship was going on. One does not know why the new boyfriend was threatened. The Magistrate, in my judgment, from the material that he sets out in the case, not all of which I have cited, does not reveal sufficient material to enable him to have convicted of harassment. In the circumstances I would quash the conviction and that will have the result of quashing the conditional discharge and also, I think, the order for costs which the Appellant would be ordered to pay.

SILBER J: I agree.