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R v Mann
COURT OF APPEAL (CRIMINAL DIVISION)
SWINTON THOMAS LJ, SACHS J, SIR RONALD WATERHOUSE
21 FEBRUARY 2000

CRIMINAL; Sentencing
Sentence – Restraining order – Whether order drafted too widely – Protection from Harassment Act 1997, ss 4, 5

SACHS J (reading the judgment of the court): This is an appeal by leave of the single judge by Andrew Mann, now aged 40, against an order made on 16 November 1999 by the Recorder of Manchester, His Honour Judge Sir Rhys Davies QC. He had been, for two offences of harassment under the provisions of the Protection of Harassment Act 1997, sentenced to three months’ imprisonment on one count and four months’ imprisonment on another and they were ordered to be concurrent. He has served that sentence and does not appear today. He was also dealt with for breach of a probation order of 12 months imposed on 28 January 1999; no order was made by the Recorder and that order continues.

The factual basis which has given rise to this appeal and can be relatively shortly stated. Miss Catherine Usher worked as a night supervisor at the Chorlton Bail Hostel in Manchester and had held that position for about eight years. The appellant had been a resident at the hostel between August and September 1998. Between 4.10am and 6.30am on 6 October 1998 the appellant telephoned the hostel on five occasions. On each occasion he spoke to Miss Usher and because of previous problems she made a note of what the appellant said. In the calls the appellant was abusive, insulting, racist and threatening. Miss Usher, unsurprisingly, felt intimidated abused and threatened throughout – that was the subject of one of the counts.

At about 11.35pm on 7 February 1999 the appellant telephoned the hostel, he would not give his name but Miss Usher recognised his voice. To Miss Usher he sounded drunk. The appellant ended the call but there followed a series of telephone calls which occurred almost on a minute by minute basis. The contents of the calls became increasingly abusive. During a call at 11.50pm the appellant said he was coming over to the hostel to burn it down. He later called back to say he had been joking. The calls continued and because of earlier threats Miss Usher took the threat to burn down the hostel seriously. He called at 12.20am and threatened “You’re fucking dead”. A call two minutes later referred to Miss Usher as a “fucking bitch”. Miss Usher felt insulted, abused and threatened. The police were summoned. Because of the threats extra security precautions were taken. All ground floor windows were checked and all lights switched off to afford better vision outside. At about 1.45am the calls stopped but they recommenced at 6.25am. The appellant said things like “Watch your back you bastard”, “I will get revenge”, “I would be inclined to park your car elsewhere. Not saying I would do anything to it”, and “Who are you fucking bitch?” He was arrested on 22 May 1999 and was interviewed. Nothing appears to turn on the interview.

This appeal, the grounds of which were settled by the appellant in person, amount to this. Under the provisions of s.5 of the Protection from Harassment Act 1997 it is provided in sub-paragraph (1):

“A court sentencing or otherwise dealing with a person (‘the defendant’) convicted of an offence under s.2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.”

Sub-section (2):

“The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which-
(a) amounts to harassment, or
(b) will cause fear of violence,
prohibit the defendant from doing anything described in the order.”

Sub-section (3) provides:

“The order may have effect for a specified period or until further order.”

Mr Clarke in his attractive submissions on behalf of this appellant says that the terms of this order cannot survive an examination of the statutory provision. So far as relevant the order made on 16 November 1999 reads:

“IT IS ORDERED that for the purpose of protecting those mentioned below in this order:
1. ANDREW MANN be prohibited from conduct which amounts to harassment or which would cause fear of violence in those persons mentioned below and
2. ANDREW MANN be prohibited from contacting, communicating with or attempting to contact or communicate with any member of staff of the Probation Hostel situated at 10-12 Oswald Road, Chorlton-cum-Hardy, Manchester 21, directly or indirectly.

AND IT IS ORDERED that this order shall remain in force until 16 May 2001.”

It has a penal notice endorsed upon it [which is in conventional terms].

In this case we are quite satisfied that any reading of s.5, so far as it is relevant, does not permit of an order in those terms. The section says that the order should name the persons in respect of whom protection is sought. There is no mention of the name Catherine Usher (the complainant) or the man Michael Cohen, who it is conceded falls within the need of protection in these circumstances.

In this case we do not seek to give any wider guidance. The order cannot be sustained in its present form. The second numbered paragraph should be deleted and the first paragraph should read:

“ANDREW MANN be prohibited from conduct which amounts to harassment or which would cause fear of violence to Catherine Usher and Michael Cohen.”

Otherwise the order will remain, including the period until 16 May 2001. To that extent the appeal is allowed.