Nov 9
Following a sexual relationship with the complainant, the defendant engaged in a range of activities the Crown alleged amounted to stalking him causing him serious alarm or distress pursuant to section 4A of the Protection from Harassment Act 1997 (count 1) which included sending an excessive number of text messages, attending his place of work unannounced and making allegations to others, including his employer and professional regulator, that he had raped and sexually assaulted her. The defendant relied on the statutory defences in section 4A(4)(a) and (c) of the 1997 Act that she pursued the course of conduct to prevent crime and/or it was reasonable in the circumstances. The judge did not direct the jury (i) that they had to be satisfied that the allegations made in the written complaints to the complainant’s employer and regulator were untrue or that if they were or might have been true they were incapable of amounting to harassment, and directed them to ask themselves whether (ii) the “course of conduct (including the acts associated with stalking) caused the complainant serious alarm or distress”. The Crown proved the defendant’s conduct caused the victim serious alarm or distress so as to have a substantial adverse effect on his day to day activities and she was convicted. She appealed against conviction on the grounds that the complaints she made to the complainant’s employer and regulator could not amount to acts associated with stalking and the judge had misdirected the jury in relation to causation of serious alarm or distress by adding a gloss which allowed the jury to take into account the complaints to the employer and regulator even if they were not acts associated with stalking.
On the appeal—
Held, appeal dismissed. The scheme of the Protection from Harassment Act 1997 was formed of the four building blocks of harassment, stalking, causing serious distress and the statutory defences. The complaints of misconduct the defendant made to the complainant’s employer and regulator, whether true or untrue, amounted to harassment under section of the 1997 Act if they caused the complainant distress, which they almost inevitably would, and there was no requirement that they be unreasonable. The Crown had to prove the element of the offence whether an act was unreasonable before any statutory defence could be considered. Section 1(1) prohibiting harassment did not apply if the person who pursued the relevant course of conduct showed that in the circumstances what they did was reasonable and the reasonableness of the conduct was not an issue unless and until the perpetrator raised it as a defence. Appropriate complaints to an employer or regulator fell within the defence of reasonableness. When directing the jury in relation to harassment in criminal proceedings, the judge had to follow the scheme of the 1997 Act. There was no simple definition in the Act of stalking but it required harassment or a course of conduct which amounted to stalking, directed at a particular person. Depending on the factual scenario, it could involve sending complaints to others about that person, particularly when they represented a continuation and escalation of a pattern of behaviour. The judge’s direction on causation to the jury was not to have been read in isolation and he had asked them correctly if they were sure the “course of conduct (including the acts associated with stalking) caused … serious alarm or distress” which they could only consider if they had already concluded the course amounted to harassment and the acts involved in the harassment were associated with stalking. Since they were directed to take a stepped approach they could not have understood the direction to involve some wider and undefined course of conduct, which was also apparent from the written directions (paras 26, 28–29, 33).
Farrhat Arshad (assigned by the Registrar of Criminal Appeals) for the defendant.
Carole Fern (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.