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King v Director of Public Prosecutions
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
CO/759/2000, (Transcript: Smith Bernal)
HEARING-DATES: 20 JUNE 2000
20 JUNE 2000

COUNSEL:
Miss S Monaghan for the Appellant; A Swift for the Respondent
PANEL: KENNEDY LJ, JACKSON J
JUDGMENTBY-1: JACKSON J
JUDGMENT-1:

JACKSON J: This is an appeal by way of case stated and the present judgment is in five parts: Pt 1, the basic facts; Pt 2, the present appeal; Pt 3, the law; Pt 4, the appellants contentions; and Pt 5, decision.

1 The basic facts

In 1998 and 1999 the appellant lived at Flat 42 , Fairlawns in Watford. The complainant, Miss Joanne Presswell, lived at 23 Fairlawns in Watford, which is a ground floor maisonette. Between August and December 1998 the appellant engaged in conduct which caused distress to Miss Presswell. On 31 March 1999 the appellant was charged with the offence of harassment contrary to s 2 of the Protection from Harassment Act 1997.
The details of the offence charged were as follows:
"... the Appellant ... pursued a course of conduct which amounted to the harassment of Joanne Presswell and which he knew or ought to have known amounted to the harassment of her in that he gave her an unwanted gift, sent her a letter, removed underwear from her rubbish bins and filmed her with a video contrary to s 2(1) and (2) of the Protection from Harassment 1997."
The justices heard the case on 2 November 1999. They found the case proved. The sentence imposed was a conditional discharge for 12 months. The justices also ordered the appellant to pay £150 compensation to Miss Presswell and £100 costs. The justices also made a restraining order that the appellant should not directly or indirectly contact Miss Presswell.

2 The present appeal

The appellant now appeals against his conviction by way of case stated.
In their written case the justices record that they found the following facts proved in para 2:
"b That during August 1998 the Appellant first approached Joanne Presswell, the victim, whilst cleaning her car outside of her ground floor maisonette.

c That a brief conversation was instigated by the Appellant concerning the vehicle.

d That the Appellant, two days later called at the victims address and announced that as she had helped him, he wanted to give her a begonia plant which Miss Presswell rejected and the Appellant left.

e That two or three days following this incident, Joanne Presswell received a card stating that a postal package for her had been delivered to Flat 42. Joanne Presswell did not know that the Appellant lived at Flat 42 Fairlawns.

f. That the Appellant delivered the package to Joanne Presswell who was upset by his attendance and was concerned as to how he had come into possession of the package, thereby learning her name and address.

g Two weeks following this incident Joanne Presswell received an envelope addressed to Joanne from the Appellant containing a three page letter.

h Joanne Presswell was upset by the contents of the letter and did not respond to the letter.

i A week after receipt of the letter Joanne Presswell noticed that her bin bags had been tied differently from how she had left them outside of her maisonette.

j On a later occasion Joanne Presswell observed the Appellant looking through her rubbish bags and she told the Appellant that she would telephone the police. She was alarmed by his conduct and no longer left her rubbish bags in her property.

k Joanne Presswell telephoned the Police and the following day gave a letter to Police Constable Thomas.

l At the time of contacting the police, Joanne Presswell was scared of the appellant whom she believed was not exhibiting normal behaviour.

m The Appellant was observed on occasions by Joanne Presswell outside of her flat when she arrived home from work.

n During December 1998 the Watford Police visited the Appellant at his home address and searched his premises. The Police found four camcorders, one of which was set up on a tripod behind a window overlooking the street.

o On 6 February 1999 Joanne Presswell at the Watford Police Station identified items of underwear she had thrown out in the rubbish and had been found by the Police at the Appellants address when searching the premises in December 1998.

p On 6 February 1999 Joanne Presswell identified herself to the Police when viewing videos seized from the Appellants address, showing her going [to] and leaving her car."

The justices subsequently state their conclusion that four matters amounted to harassment. They are set out in para 5(b) of the case and they are:
"i The offer of a plant.
ii The receipt of the letter.
iii The delivery of her postal package, and
iv The rummaging in her rubbish bin."

The question which is posed at the end of the case stated for the opinion of the High Court is as follows:

"Were we entitled as a matter of law to say the following factors amounted to a course of conduct:

a The offer of the plant and/or
b Sending the letter and/or
c Taking the underwear from the rubbish bin in circumstances where the victim was not aware and/or
d Filming of Miss Presswell in circumstances where she was not aware and/or
e The showing of c and d above by the officers."

This question is not satisfactorily formulated. The opening words should read: "Were we entitled as a matter of law to say that the following factors constituted a course of conduct amounting to harassment"? Since this is presumably what the justices intended to ask, we shall proceed on the basis that the opening words of the question are as I have set out.

There is also an unfortunate mismatch between the wording of the question and the finding of acts comprising harassment in para 5(b). Paragraph 5(b) records the finding that the delivery of the postal package formed part of a course of conduct constituting harassment, but that is omitted from the question.

The appellant contends on this appeal that the individual incidents, whether individually or collectively, do not amount to harassment. Furthermore, the appellant submits that they are not sufficient to form a course of conduct.

3 The law

Section 1 of the Protection from Harassment Act 1997 provides:
"(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.
(2) 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."
Section 2(1) of the Act provides:
"A person who pursues a course of conduct in breach of s 1 is guilty of an offence."
Section 7 of the Act 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.
(4) Conduct includes speech."

This court has recently considered the interpretation of the 1997 Act on two occasions. In Sai Lau v Director of Public Prosecutions, [2000 Crim LR 580, [2000] 1 FLR 799, two incidents were alleged to constitute harassment. In the first incident the appellant visited his former girlfriend and slapped her across the face. The second incident occurred four months later: the appellant spoke to his former girlfriend in a threatening manner. The magistrates convicted the appellant of the offence of harassment under the Act. The Divisional Court, comprising Lord Justice Schiemann and Mr Justice Silber, quashed the conviction. The reasoning of the court was essentially as follows:

"Although it was not necessary for there to be more than two incidents for harassment to have occurred, the fewer the incidents for harassment to have occurred, the fewer the incidents and the further apart in time, the less likely it would be that a finding of harassment could be reasonably made.
Nonetheless, circumstances could be envisage where the incidents were as far apart as a year and still constituted harassment, such as racial harassment on a religious holiday each year. It was not known why the slap had been administered or why the complainants companion had been threatened. It could not be concluded from the material which had been before the magistrates that the two incidents could be described as a course of conduct and accordingly the magistrates had erred."

In Woolford v Director of Public Prosecutions, 9 May 2000 (unreported), the Divisional Court considered the same statutory provisions. This case concerned acts of harassment by a man against his wife, from whom he had recently separated. The wife moved to an address which she intended to keep secret. The appellant delivered a greetings card to that address. On the following day the appellant left two messages on his wifes mobile phone. In one of those messages he said that his girlfriend lived nearby. The justices held that that conduct amounted to harassment. The Divisional Court upheld that decision. In the course of his judgment the Lord Chief Justice, with whom Mr Justice Silber agreed, said this:

"We have, however, to confine ourselves to the issue of law which is raised by this case. In answering the first question, I would feel bound to respond that the three acts committed by the applicant, as found by the Crown Court, were capable of amounting to harassment within the meaning of the Act. In answer to the second question, I would feel bound to answer that the decision was not in my judgment perverse, in the sense that it was not a judgment which the court could not properly reach.

The outcome therefore is that the appeal is dismissed and the matter is not to be remitted to the Crown Court. I would, however, emphasise, since the fact of his conviction is clearly a source of concern and distress to Mr Woolford, that both courts clearly concluded that the harassment of which they found him to be guilty was at the very bottom of the scale, close to the borderline between conduct which is not harassment and conduct which is."

4 The appellants contentions

Miss Monaghan in her submissions on behalf of the appellant this morning went through individually the items of harassment which were alleged against the appellant. She dealt first with the gift of a begonia plant. She submitted that the gift was proffered; it was rejected; and that incident cannot be regarded as offensive in any way and it cannot form part of a course of conduct constituting harassment. She then turned to the letter which the appellant sent to Miss Presswell. We have the letter before us. It is a rambling letter. However, Miss Monaghan submitted it is a harmless letter; it contains no offensive or unpleasant suggestions or comment. She then turned to the delivery of the postal packet. She pointed out that this incident does not form part of the information as formulated against the appellant. Furthermore, if the appellant had come into possession of a postal packet intended for Miss Presswell, it was his duty to deliver it to her.

Miss Monaghan then turned to the video filming which was carried out by the appellant. She made the point that Miss Presswell never saw the video filming being done; the first occasion that Miss Presswell learnt about this matter was when the police showed the video film to her some months later.

Miss Monaghan then turned to the removal of underwear. She made the point that Miss Presswell never saw any underwear being removed. She did not know that her underwear had been taken from the bin bags until the police showed her those items subsequently, having recovered them from the appellants premises.

Next, Miss Monaghan dealt with the rummaging through bin bags. She submitted that that allegation was not charged in the information as formulated against the appellant. However, she did accept that such conduct, if it forms part of the case, is capable of constituting harassment. Nevertheless she submitted that, when one eliminates those items upon which the prosecution relied which are not in truth capable of constituting harassment, in the result the Magistrates decision cannot stand.

5 Decision

This court must proceed upon the basis of the facts as set out in the case stated. I shall follow the sequence of Miss Monaghans submissions and look individually at the matters which are alleged, before standing back and looking at the case in the round. I deal first with the offer of a gift, namely a begonia plant. I accept Miss Monaghans submission that this was a harmless gesture. It may well have caused distress in the result to Miss Presswell; nevertheless there is no evidence that distress was intended or foreseeable. I turn next to the letter. It is, as previously mentioned, a somewhat lengthy and rambling letter. However, it contains no threats or offensive comments. Whilst I accept that the repeated offers of unwelcome gifts or the repeated sending of letters could well amount to harassment, nevertheless the single offer of a gift of modest value and the sending of one innocuous letter in the circumstances of this case cannot amount to harassment within the meaning of the 1997 Act. Nor could the letter and the gift be treated as the first stage or the first two stages of a course of conduct amounting to harassment.

In my judgment the correct way to approach these matters is as follows. The offer and rejection of the gift and the subsequent sending of the letter showed two things: first, that the appellant was seeking a relationship with Miss Presswell, and, secondly, that Miss Presswell did not want a relationship with the appellant. These incidents therefore form an important background against which later events must be viewed. However, the magistrates erred in para 5(b) of their stated case in concluding that these incidents themselves formed part of a course of conduct amounting to harassment.

I turn next to the delivery of the postal package. It is curious that the justices treat this as an incident of harassment. It was not relied upon by the prosecution in the information as formulated, which is set out in para 1 of the stated case. Furthermore, there is no finding that the appellant came by the postal package unlawfully or improperly. If a postal package addressed to Miss Presswell came into the appellants possession by some lawful route, the appellant was acting quite properly in delivering it to Miss Presswell. For all these reasons the justices erred in para 5(b) of their case stated in treating this incident as part of a course of conduct amounting to harassment.

I turn next to the video filming of the appellant. It appears from the justices findings that the appellant stood at a window in his premises and made video films of Miss Presswell as she went to and from her car. Miss Presswell did not know about this filming until the police later showed her the films. Whether the video filming was done in such a way that it might have come to Miss Presswells attention at the time or on some occasion before the police showed her the video films is not clear. The justices made no reference to the video filming in para 5(b) of their case. However, at para 5(e) of the case the justices found that the appellant was aware that by secretly videoing Miss Presswell this amounted to harassment. In my judgment the justices were entitled to find that repeatedly making video films of Miss Presswell amounted to harassment. What the justices had to consider was s 1(1)(b) and s 2 of the Act, which have been previously read out. The justices had to consider whether the appellant knew or ought to have known that his conduct in videoing Miss Presswell amounted to harassment and, in considering that question, the justices had to apply the test set out in s 1(2). That is a matter which the justices will have to consider when this case comes back before them.

I turn next to rummaging through the bin bags. The information as formulated is not happily worded in that it uses the phrase removed underwear from her rubbish bins. Nevertheless it is quite clear that that part of the charge is directed to the appellants conduct in rummaging through the bin bags of Miss Presswell, in the course of which he removed on one occasion (or perhaps more than one occasion) some underwear. Prosecuting counsel, Mr Swift, has drawn the courts attention to s 123 of the Magistrates Courts Act 1980. This provides:

"No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint."

In my judgment, applying the provisions of s 123 of the 1980 Act, the information as formulated is sufficient to cover the allegation that the appellant was harassing Miss Presswell by rummaging through her bin bags on various occasions. Miss Presswell became aware of such rummaging through her bins on more than one occasion: see paras 2(i) and 2(j) of the stated case, which I read out earlier in this judgment. It is also clear from the magistrates findings that these incidents caused alarm and distress to Miss Presswell. Accordingly, these incidents could constitute harassment: see s 7(2) of the 1997 Act. It was clear at the time of such rummaging that the appellant was liable to be seen by Miss Presswell. Accordingly, it would appear that s 1(1)(b) of the Act is satisfied.

Furthermore, this conduct must be viewed against the background of previous incidents, in particular the offering and rejection of the gift of a plant and the sending of the letter. Adopting the approach of this court in Woolford v Director of Public Prosecutions (unreported), it was clearly open to the justices to conclude that the act of rummaging through Miss Presswells bin bags on more than one occasion was a course of conduct amounting to harassment.

In the result therefore the answer to the question posed at the end of the case stated is No. The appellants conviction is quashed.

This case must be remitted to the justices in order they may reconsider it on the correct basis. The correct basis is as follows:

1 The offer of the plant and the sending of the letter cannot form part of a course of conduct amounting to harassment.

2 Nevertheless those incidents are part of the background against which the appellants subsequent conduct must be evaluated.

3 The delivery of the postal packet must be disregarded.

4 The justices must consider whether the video filming of Miss Presswell and/or the rummaging through her bin bags constituted a course of conduct amounting to harassment; in considering this question they must apply the tests set out in ss 1 and 7 of the 1997 Act.

JUDGMENTBY-2: KENNEDY LJ
JUDGMENT-2:
KENNEDY LJ: I agree.
DISPOSITION:
Judgment accordingly.
SOLICITORS:
Gupta & Partnes, Harrow, Middlesex; CPS