Case No. CO/1612/2002
Neutral Citation Number: [2002] EWHC 1428 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE  COURT
Royal Courts of Justice
The Strand
London

Date: Monday 24 June 2002
B e f o r e:

MR  JUSTICE  BURTON

_______________

B E T W E E N:

SEAN  JAMES  PATRICK  KELLY
Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
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MR PAUL GREANEY (instructed by Messrs Lester Morrill,
Leeds LS1 2PL) appeared on behalf of THE APPELLANT

MR JONATHAN SANDIFORD (instructed by the Crown Prosecution Service,
West Yorkshire) appeared on behalf of THE RESPONDENT
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J U D G M E N T

1.	MR JUSTICE BURTON: This is an appeal by way of case stated against the conviction of the appellant by the Leeds District Magistrates' Court on 26 October 2001, for which he was sentenced on 8 February 2002 to five months' imprisonment. He has been granted conditional bail pending the outcome of this appeal. When he committed the offence of which he was convicted he was on licence, by way of release from prison, after being sentenced to twelve months' imprisonment for an offence under section 4 of the Protection from Harassment Act 1997 in relation to the same person, Miss Jennifer Padmore, who was the victim of the fresh offence, and he was returned to prison for breach of licence. 
2.	The Protection from Harassment Act was passed in 1997. The relevant sections are these: 
“1. (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.” 
3.	Subsection (3) contains offences which are not relevant before me. Section 2 defines harassment as: 
“(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence. 
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both. 
....” 
4.	Section 4 contains what Mr Greaney, counsel before me today, has rightly described as a more serious offence. It provides as follows:
“(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.” 
5.	There is an interpretation section in section 7 of the Act which relates to both those offences. By subsection (2) it is provided that: 
“Reference 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.” 
6.	After some changes to the charges which the appellant faced before the magistrates' courts, in the end, on the day, he was charged with two counts, one under section 2 and one under section 4. The magistrates acquitted him in relation to the section 4 offence for reasons that will appear, but convicted him of section 2. 
7.	The appellant had had a relationship which ended in December 1999 with a Miss Jennifer Padmore. As I have earlier indicated, he was convicted on 11 April 2001 of an offence contrary to section 4 of the Act in relation to Jennifer Padmore, and was sentenced to 12 months' imprisonment. He was released from prison on licence the following day, 12 April 2001. Ten days later, 22 April 2001, he committed the offence of which he was found guilty by the magistrates. 
8.	The facts, which were found by the magistrates and form part of the case stated, are very short. On 22 April 2001, the appellant, who was then in Liverpool, made three telephone calls between 2.57am and 3.02am, to a mobile telephone belonging to Jennifer Padmore who was in Leeds. Miss Padmore did not answer any of the calls at the time, it being the middle of the night. They were recorded on her voice‑mail facility. They were all of an abusive and threatening nature. It appears that in two of them there were, additionally, threats towards Miss Padmore's sister. 
9.	Miss Padmore listened to the messages some time later that day and subsequently reported the matter to the police, at about twelve o'clock the following day. She listened to them one after the other, without pause. They being abusive and threatening, it is natural that she was, as the magistrates found, concerned and alarmed by the content of them. 
10.	The magistrates concluded that it was necessary for the purposes of section 4 of the Act for a victim to be caused to fear on each occasion, where there is more than one action which is said to amount to harassment. As the victim, Miss Padmore, listened to all three of the telephone calls on one occasion, she was only put in fear on one occasion, and consequently the justices were satisfied that they must acquit in relation to the offence under section 4. However, they concluded that the issue before them in respect of section 2 did not depend upon how often the defendant was put in fear or was caused to be alarmed, but was by reference to the acts of the defendant. In paragraphs 14 and 15 of the case stated the following is set out: 
“14. .... In relation to offence 4 [of which they convicted] we considered whether what had occurred was capable of constituting a course of conduct. We were satisfied that they were three separate and distinct telephone calls, albeit over five minutes or so, and those were capable of amounting to a course of conduct. 
15. We went on to consider whether that course of conduct met the relevant criteria of section 1 Protection from Harassment Act 1997. We were satisfied that given the previous history of the relationship between Miss Padmore and Mr Kelly in late 1999 and in the summer of 2000, which included the allegations of unfaithfulness, the violent nature of the later relationship, and the fact that these calls were made in the early hours of the morning and the nature of their content they constituted a course of conduct which amounted to harassment of which Mr Kelly knew or should have known.” 
11.	They went on to be satisfied of Miss Padmore's great fear of the appellant.
12.	Mr Greaney's first submission before me, and indeed the same submission was made on the appellant's behalf before the magistrates, was that these three telephone calls within the space of five minutes could not amount to a course of conduct. He described this as an error of law by the magistrates, but in the course of submissions he recognised that in reality what he was submitting was that any magistrate who decided that three telephone calls in the course of five minutes amounted to a course of conduct was acting perversely, was irrational; that it was a perverse conclusion, that three telephone calls in such a short space of time could amount to a course of conduct. There were no special circumstances about these three calls. Indeed the magistrates were satisfied, as they said, that they were separate and distinct. The only issue which Mr Greaney could rely upon for this first proposition was that in those circumstances three separate and distinct telephone calls, each abusive in different terms, could not amount to a course of conduct. 
13.	The second submission he made -- although he sought in the course of argument to connect the two, it seems to me plainly a separate and self‑standing submission -- was that before a defendant can be convicted of harassment in relation to incidents occurring on more than one occasion, it must be shown that there was alarm or distress by the recipient of the communications or the subject of the harassment on more than one occasion. His submission here was that because all three telephone calls were listened to at the same time, and consequently that the victim was only distressed once, there could be no conviction under section 1. 
14.	The background of his submissions was the purpose and ambit of the Act, namely the aim to prevent repetitious conduct, in a situation in which the conduct complained of might not be a separate offence if committed once; it could and would become an offence if committed more than once. He had originally intended to refer to Hansard for the purposes of explaining and expanding upon his submissions as to what the purpose of the Act was, but in the event he recognised both the difficulties of referring to Hansard in the absence of a case of ambiguity on the one hand, and on the other hand the fact that there was, as he concluded, no need to do so, because he was satisfied to refer to authorities under the Act in the Divisional Court to illustrate the proposition that he was putting forward. 
15.	He referred in argument only to two cases, although four have been put before me one way or the other. The case to which he first referred was not in fact put before me in the form of the report, because he had not thought it necessary to do anything other than to refer to two short passages, the second of which was in fact quoted in full in the case which he did put before me. This was R v Hills [2001] FLR 580. He referred, without taking me to the facts, to two short extracts from the judgment of Otton LJ in that case, sitting in the Court of Appeal. Otton LJ there indicated, first, that the exercise of looking at incidents relied upon as harassment was not simply a mathematical one. The question as to whether there were two, three or four incidents was not simply a matter of calculating whether there was more than one, but was part of a question as to whether there was a course of conduct. Thus mathematics was not the simple answer to the question. Secondly, he referred to the passage from Otton LJ's judgment at paragraph 31 in that case, which itself is cited in the decision which he did put before me, the unreported case of Pratt in the Divisional Court on 21 June 2001 (Latham LJ and Forbes J). The passage there referred to from Otton LJ included the passage: 
“It is to be borne in mind that the state of affairs which was relied upon by the prosecution was miles away from the 'stalking' type of offences for which the 1997 Act was intended.” 
16.	He relied upon that to show that a court considering conviction under this Act must look at the nature of the conduct, and is entitled to take into account the purpose of the Act in deciding whether or not to convict. 
17.	Pratt itself was, as he accepted, of limited assistance because it was the consideration of the issue of course of conduct from the entirely opposite end. That was a case where the two incidents in question were widely spaced in time, and the issue was whether two separate incidents, one on 25 December 1999 and one on 17 March 2000, found by the justices to have amounted to a course of conduct, were capable of so constituting. Latham LJ said this at paragraph 12 of his judgment:
“I would, however, say one word of caution. This case is one which is close to the borderline; and it seems to me that prosecuting authorities should be hesitant about using this particular offence in circumstances such as this where there are only a small number of incidents. They should ensure that what they are seeking the court to adjudicate upon can properly fall within the category of behaviour which is behaviour causing harassment of the other, not merely that there have been two or more incidents. This mischief which this Act is intended to meet is that persons should not be put in a state of alarm or distress by repetitious behaviour.” 
18.	That is plainly helpful guidance by Latham LJ. 
19.	The other two cases referred to by Mr Greaney in his skeleton argument have not been referred to me orally. Both of them may have been more relevant on the second issue on which he addressed me, and to which I shall return. They both depended, as it seems to me, on their own facts. The case of DPP v Williams (DC, 27.7.98, Rose LJ and Bell J) revolved around the issue as to whether two incidents, involving what could be said to have been different victims, could amount to a course of conduct. The court concluded that because the victim of the second incident was present when the first incident took place, upon the facts a course of conduct was established. 
20.	The second decision is King v DPP (DC, 20.6.00, Kennedy LJ and Jackson J). There was a number of different incidents, said to amount to a course of conduct in totality. The court was invited to look, and did look, at each of them to see whether they could amount to harassment, and concluded that, out of the five that had been relied upon by the justices, only two could arguably amount to harassment, and sent the matter back to the justices to reconsider on that basis.
21.	At the end of the day, apart from the helpful guidance of Otton LJ and Latham LJ, to which I have referred, there is no direct authority on the point before me. I have to consider the question by reference to the statute. 
22.	In his skeleton argument in response, Mr Sandiford, on whom I did not call orally, submitted that what was occurring here was an irrationality challenge, which could not be supported. I agree. It is quite clear to me that the magistrates did ask themselves the right question. They did not limit themselves to a mathematical exercise, such as was referred to by Otton LJ. They knew that the issue before them was that there were, as they found, three separate and distinct telephone calls, and they asked the right question, namely, whether those three distinct telephone calls, albeit over a period of five minutes, amounted to a course of conduct. They were satisfied it did. Mr Greaney's submissions, as he accepted in the end, amounted to a submission that no reasonable magistrate could ever find, given that there were no particular ingredients in this offence which could distinguish it, that three calls in five minutes could amount to a course of conduct. 
23.	I conclude that that is not the case. It might be that the three justices might have found, or might have been persuaded to conclude, that there was no course of conduct here, but they were satisfied that there were three distinct and distinct telephone calls and that there was a course of conduct. I am not persuaded that that decision can be challenged as irrational. Latham LJ's dictum emphasises the need for repetitious behaviour, and on the justices' conclusions there was repetitious behaviour. The Act requires that an offence must be committed more than once before it can be actionable, and it was committed more than once. It seems to me that if three telephone calls are made they are capable of amounting, and on the facts the justices found that they did amount, to three incidents, just as the writing of three letters or the sending of three e‑mails could amount to three separate incidents of harassment. The shortage of time within which they were sent was only a factor, just as the distance in time between them would be a factor if that were the situation, for example in the case of Pratt. 
24.	The second submission which Mr Greaney made, with which, as I have indicated, he sought to marry his first submission, but which I conclude to be a quite distinct point, relates to his submission that, because the three telephone calls were listened to on the same occasion, such that the victim was only distressed or alarmed once, the defendant can be convicted. He accepts the difficulty that he has in relation to this proposition, because of the contrast between the offence under section 2 and the offence under section 4. It is quite plain, by virtue of the exact terms of section 4(2) of the Act, that a defendant cannot be convicted in relation to harassing conduct consisting of a number of different incidents, unless the victim is put in fear on each occasion because of the express terms of section 4(2). Such terms do not exist in relation to sections 1 and 2. The gravamen of section 1 is that a person must not pursue a course of conduct which amounts to harassment of another, with the necessary mens rea. The harassment includes alarming a person, and the course of conduct must involve by section 7(3) conduct on at least two occasions. There were canvassed in argument the following situations. If a letter were sent on Monday, Wednesday and Friday it would appear to be clear that those are on any basis three separate incidents of potential harassment. If they all arrive together, by some vagary of the post, on the Saturday and are opened one after another, upon Mr Greaney's submission that would mean that no offence was committed. Equally, if there were three letters all sent at the same time, which might give him some ground for argument on his first proposition before other magistrates, that they were in some way all part of the same incident, and should not be seen as a separate course of conduct, and those three letters then happened to arrive on different days, by the vagaries of the post, then the victim might be alarmed on each occasion, and that might create an offence which on his case there would not otherwise have been. Similarly, the purpose of the Act, it seems to me plain, is intended to render actionable conduct which might not be alarming if committed once, but becomes alarming by virtue of being repeated -- the repetitious conduct to which Latham LJ referred. Mr Greaney accepts that the consequences of his submission would be that if there has to be alarm on each occasion, there could be no conviction, even in respect of the second incident, if there was, as there might well have been, no alarm on the first occasion, but only alarm on the second occasion. But on his case there would then need to be a third incident before there could have been two separate incidents involving alarm. It seems to me that if one is looking at the purpose of the Act, that is not what was intended, and indeed that what was intended was that something which might not be alarming the first time would become actionable, criminally and civilly, on the second occasion. It is, therefore, in my judgment, not necessary for there to be alarm caused in relation to each of the incidents relied upon as forming part of the course of conduct. It is sufficient if, by virtue of the course of conduct, the victim is alarmed or distressed. That is what occurred here, on the finding by the magistrates. 
25.	In those circumstances, there was no error of law either on the first principle which Mr Greaney put forward or on the second, and I dismiss the appeal. 
MR GREANEY: My Lord, the appellant has had the benefit of legal aid. Would my Lord order legal aid taxation? 
MR JUSTICE BURTON: What about a Recovery of Defence Costs Order, Mr Greaney? I do not know what I am supposed to do about these, but I think I am at least supposed to raise the position. It is Regulation 11 of the 2001 Recovery of Defence Costs Orders Regulations the judge shall consider whether it is reasonable to make a recovery of defence costs order in all the circumstances of the case. Now, what is the position of the unsuccessful appellant here? 
MR GREANEY: My Lord, may I take some instructions? 
MR JUSTICE BURTON: Yes. 
MR GREANEY: My Lord, the appellant is unemployed at the moment and in receipt of state benefits, and of course he will have to go back to prison for a short period. In those circumstances I would invite your Lordship to exercise your discretion, but to order legal aid taxation. 
MR JUSTICE BURTON: Do you have any position on this? 
MR SANDIFORD: My Lord, there would be an application for prosecution costs, but I suspect it would be academic.
MR JUSTICE BURTON: You have no reason to doubt the facts put forward by Mr Greaney? 
MR SANDIFORD: My Lord, no. 
MR JUSTICE BURTON: This conduct by the defendant has been going on for some time and I hope that it will not happen again. I have no doubt that he is perfectly capable of earning good money and will avoid these current problems. But at the moment he does not have good money. 
MR GREANEY: Yes, my Lord. I do not have any information to contradict that. 
MR JUSTICE BURTON: There it is. I will not make an order for the costs of the prosecution. Nor will I make a recovery of defence costs order. I will grant legal aid taxation, but I hope you will advise your client that he is much better getting a job than continuing to be in and out of prison solely because of this very unfortunate and disastrous part of his life. 
MR GREANEY: My Lord, yes, of course. I think my Lord needs to make an order in relation to the expiry of the defendant's bail. 
MR JUSTICE BURTON: What do you want to do about that? Clearly he must surrender. When must he surrender? 
MR GREANEY: Within the next ten days I think is the normal rule. 
MR JUSTICE BURTON: Yes, I will make an order that he surrenders within the next ten days at the Leeds City Magistrates' Court. 
MR GREANEY: I am obliged.
MR JUSTICE BURTON: Thank you very much.