Evans , R v [2004] EWCA Crim 3102

[2004] EWCA Crim 3102

Case No 2004/03662/B3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM CARDIFF CROWN COURT

His Honour Judge Morris

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/12/2004

Before

LORD JUSTICE DYSON

MR JUSTICE GRIGSON

THE RECORDER of MANCHESTER

Between

THE QUEENRespondent

DOROTHY GERTRUDE EVANSAppellant

Mr Peter Davies (instructed by the Crown Prosecution Service) for Respondent

Mr Huw Evans of Counsel (instructed by Messrs Hodson Parsons James and Vaux) for Appellant

Hearing Hearing dates : 10 th November 2004

Judgment

Lord Justice Dyson (giving the judgment of the court):

Introduction

[1]On the 25th May 2004 in the Crown Court at Cardiff the appellant was convicted of acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997 (“the 1997 Act”). On the 6th August, she was sentenced to pay a fine of £1000, or in default to serve 45 days imprisonment. She appeals against conviction by leave of the single judge. Section 5 of the Act, so far as material, provides: “(1) A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this 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 – amounts to harassment, or will cause a fear of violence, prohibit the defendant from doing anything described in the order. … (4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order. (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.” amounts to harassment, or

The facts

[2]On the 8th November 1999, the appellant was convicted at the Cwmbran Magistrates’ Court of three offences of harassment by threatening her neighbours, and a restraining order was made against her in these terms:

“You shall not:- be abusive by words or actions towards Miss Margaret Jones, Mr Peter Kenyon, Mr Julian Edwards and their respective families. enter in any way onto the property of Miss Margaret Jones, Mr Peter Kenyon or Mr Julian Edwards. Cause any waste material to be deposited on the land of Miss Jones, Mr Kenyon or Mr Edwards.”

[3]At all material times, the appellant (who is now 78 years of age) has lived at No. 93 Park Crescent, Abergavenny and Andrea Edwards has lived next door at No. 91. Mrs Edwards has at all material times been the wife of, and lived with, the Mr Edwards referred to in the restraining order.

[4]The indictment contained 6 counts of acting in breach of the restraining order. The appellant was acquitted on counts 3 and 6 at the direction of the judge and acquitted by the jury on counts 2,4 and 5. The facts relevant to count 1 are as follows. On 4th February 2003, Mr Falconer, a plumber, came to No. 91 to repair Mrs Edwards’ washing machine. He parked his van in the street hard up against the rear of Mrs Edwards’ car. As soon as he arrived, she became stressed because whenever she had visitors, the appellant would block their cars in with her car. So bad were relations between the neighbours that Mr and Mrs Edwards had fixed a CCTV camera on the outside of their house so that they could view the activities of the appellant. Shortly after the arrival of Mr Falconer, Mrs Edwards started to view the screen. She saw the appellant drive her car (which was already parked in the street) about 10 feet forward so as to be close up against the back of Mr Falconer’s van. The result was that his van was totally blocked between the rear of the car of Mrs Edwards and the front of the appellant’s car. Mrs Edwards went out to move her own car and drove round the block because she did not want the appellant to know that she had been inconvenienced. She was upset because this type of conduct had happened frequently.

[5]At the close of the prosecution case, Mr Huw Evans submitted on behalf of the appellant that there was no case to answer. His principal submission was that, on a common sense and fair interpretation of the restraining order, parking the car too close to the van of Mr Falconer did not amount to “abusive action”. He also submitted that in the circumstances of the case, it was obvious that, even if what the appellant did amounted to “abusive action”, she had a reasonable excuse for doing it, and accordingly could not be guilty of the offence. In rejecting this submission,

the judge ruled as follows:

“However, in respect of counts one and four I fear that the submission must fail. The argument has been very interesting upon each. Although these are two separate car parking incidents where the same overall conduct is alleged, there are distinctions to be drawn between these two counts. Nonetheless, at the end there seems to me to be ample video and oral evidence, sufficient to raise a prima facie case that here was a lady acting in breach of the Restraining Order without reasonable excuse and where a clear inference arises that she was intending to misuse or illtreat the recipients in each case, Mrs Edwards and Miss Jones, by conduct which it would be open to the Jury, if they see so fit, to regard as abusive in the widest application of that term. Abuse here is not to be confined simply to the utterance of words but also is, as a derivative of the verb “to abuse”, capable of including illtreatment or mistreatment. It will be for the Jury to say whether it is fair and proper nowadays to regard such conduct as abusive . They may or they may not but that is their task and not mine. Thus, in those circumstances, and for those reasons, the submission must fail on count one and count four.”

[6]The appellant did not give evidence. Her daughter, Barbara Thomas did give evidence, but she was unable to say anything about the alleged offence since she was not present at the time. She said that she had lived with the appellant for 2 years, and confirmed that relations between the appellant and her neighbours were not good.

[7]In the course of his summing up, the judge directed the jury as to the ingredients of the offence of acting in breach of a restraining order in the following terms:

“In order to establish the offence in respect of any of these four counts the Prosecution must make you sure of four essential elements. First, that the Defendant has committed an act or carried out a piece of conduct which can properly be regarded as abusive. Secondly, that if so, that it was such an act or conduct that was aimed at or was towards, perhaps, the particular named person, being one of the named persons stipulated by the Magistrates as requiring protection from harassment. That is, one of the named persons in the Restraining Order. Thirdly, that if there was an abusive act or conduct and it was conduct towards a named person, then that act or conduct was in breach of the terms of the Restraining Order. The third goes hand in glove with the first and second elements, you may consider. And, fourthly, that, in any event, such act or conduct as was committed by the Defendant was committed by her without any reasonable excuse. You will recall that I told you that Section 5(5) of the governing Act of Parliament contained the expression that if the person named as the subject of the Restraining Order committed any act or conduct without any reasonable excuse which amounted to the terms of the Order, that was an offence. So, it is necessary for the Prosecution to prove that there was no reasonable excuse for any proven act or piece of conduct which may have been abusive and aimed at or towards one of the named persons. As to what is meant by “abusive” is entirely now for you to say. You represent the standards of right-thinking decent folk nowadays and it is for you to apply what you consider to be the appropriate contemporary meaning in modern day usage of the English language of the term “abusive”

. Nonetheless, obviously it is derived from the verb “to abuse”. That can include, you may think, conduct such as shouting or saying foul language and offensive names at a particular person but, equally, although it is for you to say, you may find that it can also include the physical ill-treatment of a person, for example such as by striking them, or ill-treatment by neglecting them, perhaps, in the case of a child or something of that kind. But, in turn, again, I stress it being entirely for you to say, you may find that in modern parlance it is also capable of including ill-treatment generally of a person or towards a person. As to what is meant by “towards”, again, it is entirely for you to say, applying contemporary meanings of that word but, in the context of a breach of a Restraining Order alleged, you may think that it must mean conduct aimed at, in the sense of towards. In that context it should be noted that it is not necessary for the Prosecution to establish necessarily, although it depends on your view of the facts, that any such conduct or act was directly aimed at the named person. It would be sufficient if, on the evidence, it was clear to your satisfaction so that you were sure about it, that it was conduct which was aimed ultimately at the named person even though in the first instance it may have affected a third party. Thus, in the case of the car parking count, for example, you may find although it depends upon your construction of the word “towards”, that although it may be concluded that the conduct directly affected the tradesman in the first instance, it is possible for you to consider whether or not ultimately it was directed at, and therefore was towards in the appropriate construction of that word, either named person in the Order, being in count one’s case Mrs Edwards and in count four’s case Miss Jones. That will be entirely for you to say but, as I say, you must decide for yourselves what happened and then, having done so, decide whether any act or conduct established against Mrs Evans the Defendant can properly be construed as being abusive in modern terminology and, if so, whether it was conduct towards any person named in the Order.”

The grounds of appeal

[8]There are two grounds of appeal:(i) the judge should have allowed the submission of no case to answer, since no reasonable jury, properly directed, could have found that the act of driving a car in the way that we have described was an abusive action within the meaning of the restraining order; and

(ii) in his summing, the judge should have directed the jury that, in determining whether the appellant had a reasonable excuse for doing what she did, they should have regard to how she might reasonably have understood the terms of the restraining order. The first of these grounds raises issues of some general importance in relation to the enforcement of restraining orders under the 1997 Act and analogous anti-social behaviour legislation.

The first ground of appeal

[9]Mr Huw Evans submits that on a common sense interpretation of the restraining order, the act of parking a car too close to Mr Falconer’s van could not amount to an “abusive action” within the meaning of the order. Mrs Edwards could have allowed Mr Falconer to speak to the appellant when he needed to move his van. There was no suggestion that she had ever refused to move her car if requested to do so. She did no more than park her car up to the white line which was painted on the pavement and which, as a matter of convention, marked the parking boundary between the two neighbours. The phrase “abusive actions” is not clear and unambiguous, and should therefore be given a narrow interpretation. The first limb of the restraining order should in any event be given a narrow interpretation, since otherwise the second and third limbs are redundant.

[10]We start with the uncontroversial proposition that no court should grant an injunction whose terms are not readily understandable. A restraining order is analogous to an injunction. So too is an anti-social behaviour

[11]Nevertheless, the question of interpretation remains: how should the judge and jury have approached the question of the meaning of the phrase “abusive actions” in the present case? We consider that the answer is provided by Cozens v Brutus

[1973] AC 854

. The issue in that case was whether certain conduct of a person who attended a tennis match at Wimbledon was “insulting behaviour” whereby a breach of the peace was likely to be occasioned contrary to section 5 of the Public Order Act 1936. Section 5 provided that:

“Any person who…..uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace…..shall be guilty of an offence”

. The justices held that his behaviour was not insulting and dismissed the information. The prosecutor’s appeal was allowed by the Divisional Court, who expressed their view as to the meaning of “insulting behaviour” and held that, on the provisional findings of the justices, the offence had been established. The appeal was allowed by the House of Lords.

[12]In a famous passage at p 861C, Lord Reid said:

“The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word “insulting” being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.”

[13]Later, when applying this approach to the facts of the case, Lord Reid said (p 862E):

“Therefore vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any one of three limits. It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or a specially narrow meaning. They are all limits easily recognisable by the ordinary man. Free speech is not impaired by ruling them out. But before a man can be convicted it must be clearly shown that one or more of them has been disregarded. We were referred to a number of dictionary meanings of “insult” such as treating with insolence or contempt or indignity or derision or dishonour or offensive disrespect. Many things otherwise unobjectionable may be said or done in an insulting way. There can be no definition. But an ordinary sensible man knows an insult when he sees or hears it.”

[14]The dictum that the meaning of ordinary words is not a question of law was described as “well-known but ineffectual” by DW Elliott in an article entitled “Brutus v Cozens: Decline and Fall”: [1989] Crim L R 323. But it was recently endorsed and explained by the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR,

[2003] UKHL 44

. The issue there was whether a social security claimant could “prepare a cooked meal for himself” within the meaning of the relevant statute. Having referred to the speech of Lord Reid in Brutus v Cozens, Lord Hoffmann said at para 23: “23. I think that these observations have been given a much wider meaning than the author intended. Lord Reid was in my opinion making two very pertinent points. First, he was drawing attention to a feature of language; namely, that many words or phrases are linguistically irreducible in the sense that any attempt to elucidate a sentence by replacing them with synonyms will change rather than explain its meaning. Lord Kilbrandon made the same point in his reference to Dr Johnson, at p 867. On the other hand, Lord Reid insisted that, whether the statute used simple words or difficult ones, its construction was a question of law.24. Lord Reid was here making the well-known distinction between the meaning of a word, which depends upon conventions known to the ordinary speaker of English or ascertainable from a dictionary, and the meaning which the author of an utterance appears to have intended to convey by using that word in a sentence. The latter depends not only upon the conventional meanings of the words used but also upon syntax, context and background. The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator’s meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.

25. Lord Reid’s second point is made in the last sentence of the passage I have quoted, when he says that the question of whether the facts found by the tribunal count as “insulting” for the purposes of the statute is a question of fact. There is a good deal of high authority for saying that the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact: see, for example, Edwards v Bairstow

[1956] AC 14

and O’Kelly v Trusthouse Forte plc

[1984] QB 90

. What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment. “

[15]In our judgment, the observations by Lord Reid and Lord Hoffmann apply equally to the interpretation of a court order as they do to a statute. We can see no basis for drawing a distinction between them. In each case, the question whether a word or phrase is being used in its ordinary sense or in a special sense is a question of law. But if as a matter of law the word or phrase is being used in its ordinary sense, then it is for the tribunal of fact to apply that meaning to the facts as found.

[16]It is inherent in this approach that the application of words which bear their ordinary meaning to the same set of facts by different tribunals can yield different results. In Cozens v Brutus, the Divisional Court took a different view from the justices as to whether the conduct of the appellant was “insulting behaviour”. But the phrase “insulting behaviour” bore its ordinary meaning, and despite the criminal law context, was not to be construed as having a specially wide or specially narrow meaning. Its limits were “easily recognisable by the ordinary man” (Lord Reid). The words “permit of ready comprehension” and “convey of themselves a meaning which the ordinary citizen can well understand” (Lord Morris of Borthy-Gest). For the purposes of the present appeal, it is a striking feature of that case that section 5 of the 1936 Act made it an offence to use “abusive or insulting words or behaviour” (emphasis added). It is, therefore, reasonable to suppose that, if the defendant had been charged with abusive behaviour with intent to provoke a breach of the peace, the House of Lords would have adopted the same approach to the meaning of the phrase “abusive behaviour” as they did to the meaning of “insulting behaviour”.

[17]Another example of the same approach to the meaning of ordinary words in a criminal context is to be found in R v Associated Octel Co Ltd

[1996] 1 WLR 1543

. The defendant employer was convicted of failing to “conduct his undertaking in such a way as to ensure…that persons in his employment…are not ..exposed to risks to their health or safety”. The activity in question had been entrusted by the defendant to an independent contractor. The issue was whether the activity nevertheless was part of its undertaking. Various courts had attempted definitions of the phrase “conduct his undertaking”. Lord Hoffmann gave the leading speech and said (p 1548H) that it was wrong to try to find some formula to take the place of the simple words of the statute. Whether the activity which had caused the risk amounted to part of the conduct by the employer of his undertaking must in each case be a question of fact. There would be borderline cases. In the instant case, the question of whether the tank was part of the employer’s undertaking was one of fact which should have been left to the jury.

[18]It is clear, therefore, that the criminal context is not a reason for giving a narrow or strained meaning to words which bear their ordinary meaning. The application of that meaning to the facts should be left to the fact-finding tribunal. It can make no difference that the offence in this case was being abusive by action contrary to the terms of a restraining order, rather than contrary to a statutory provision which specifically prohibits such conduct. Either way, the approach elucidated in cases such as Cozens and Octel should be applied.

[19]In the light of the guidance provided by these authorities, we have no doubt that the judge was right not to accede to the submission of no case to answer. There is no basis for ascribing a special meaning to the phrase “abusive actions”. Mr Evans has suggested no such special meaning. There was no need to give this ordinary English phrase a specially narrow or strained meaning. The application of the phrase to the facts of the case was a question of fact. The judge was required to withdraw this issue from the jury only if he considered that no reasonable jury could have found as a fact that the act of parking the car in the way that we have described was an abusive action directed at Mrs Edwards. In our judgment, the judge was quite right not to withdraw the issue from the jury. They saw the video and would have been entitled to conclude that what the appellant did was done out of spite in order to annoy Mrs Edwards, and that, against the background of the history of the relationship between these neighbours, it was abusive action. There was no need to give the phrase a specially narrow or specially wide interpretation.

[20]We do not consider that the phrase is ambiguous or so vague as to be beyond the understanding of the ordinary person. It is no more uncertain than “insulting behaviour”. As we have pointed out, it is implicit in the decisions to which we have referred that the inherent lack of precision in such concepts as insulting and abusive behaviour does not require them to be interpreted narrowly even though the context is that of the criminal law. If the terms of restraining orders were interpreted narrowly, there would be a real danger that the obvious aim of the 1997 Act would be subverted. It cannot have been the intention of Parliament that the phrase “prohibit the defendant from doing anything described in the order” requires the court to specify with great exactitude the precise conduct which is prohibited. Harassment can and does take many forms. A determined defendant who has been found guilty of harassment is prohibited from committing a particular kind of harassment is likely to find a different way of harassing the target of his or her conduct. In order to make this jurisdiction effective, it is necessary to give courts the power to prohibit conduct in reasonably general terms.

[21]It is of some significance that a defendant who is alleged to have acted in breach of a restraining order contrary to section 5(5) of the 1997 Act has the protection that the prosecution must prove that he or she has acted “without reasonable excuse”. Thus, for example, there may be cases where there is room for legitimate differences of view as to the meaning of a restraining order. If in such a case the defendant raises the issue that he or she believed that the conduct of which complaint is made was permitted by the order, the prosecution will have to prove that he or she did not have reasonable excuse for the prohibited conduct. Acting under a reasonable misapprehension as to the scope and meaning of the order is capable of being a reasonable excuse for acting in a manner which is prohibited by the order.

[22]Finally, we turn to Mr Evans’ argument based on the redundancy of the second and third limbs of the restraining order. The first answer to this point is that arguments based on redundancy attribute to the draftsman a skill, acuity and passion for precision and economy of language that is often unjustified. Those who draft court orders should not necessarily be treated as if they are parliamentary draftsmen. But even in relation to the latter, Lord Hoffmann said in Walker v Centaur Clothing Ltd

[2000] 1 WLR 799

, 805D:

“I seldom think that an argument from redundancy carries great weight, even in a Finance Act. It is not unusual for Parliament to say expressly what the courts would have inferred anyway.”

But secondly and in any event, we are not persuaded that the second and third limbs of the restraining order are redundant if the first limb is given a reasonably broad interpretation. The second limb is precise and unequivocal. It prohibits the appellant from entering on the property of the specified persons for any reason whatsoever. Similarly, the third limb in relation to causing the depositing of waste material on their land. Not all such actions would necessarily be regarded by a jury as abusive. For example, entering on the land of a neighbour to deliver a misdirected letter might well not be regarded as abusive. Accordingly, we reject the argument based on redundancy.

[23]It follows that the first ground of appeal fails.

The second ground of appeal

[24]It is accepted on behalf of the appellant that in his summing up the judge did direct the jury that they had to be sure that her conduct was without any reasonable excuse. This is clear from the passage we have cited at para 7 above. What he did not do, however, was to give them any guidance as to what was capable of amounting to a reasonable excuse or as to how they should approach this issue. In our judgment, this criticism of the summing up is without foundation. It was for the appellant to raise the evidential issue of reasonable excuse, and then for the prosecution to prove lack of reasonable excuse. If the appellant had raised the issue, for example by giving evidence that she believed that the restraining order permitted her to act as she did, then the prosecution would have had to satisfy the jury that this belief (if held) was not a reasonable excuse. In that event, it would have been incumbent on the judge to direct the jury as to how they should approach this part of the case.

[25]But the appellant did not, either by giving evidence or in any other way, raise the issue of reasonable excuse. In these circumstances, it is difficult to see what the judge could have done other than to direct the jury that they must be satisfied that the prosecution had proved lack of reasonable excuse. And this he did. There was no material on which he could have founded a specific direction on this issue.

[26]The second ground of appeal must be rejected.

Conclusion

[27]It follows that for the reasons that we have sought to give, the appeal must be dismissed.

order

as was said by this court in R v Parkin 3 February 2004

[2004] EWCA Crim 287

: “The terms of the order must be precise and capable of being understood by the offender”. But there was no appeal against the restraining order made against the appellant on the 8th November 1999. In these circumstances, even if the phrase “abusive actions” were considered to be objectionably imprecise and even unintelligible, we do not see how that would afford a ground of appeal against the conviction.