Tan, R. v [2017] EWCA Crim 493

[2017] EWCA Crim 493Case No 201600471/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 30 March 2017
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MRS JUSTICE McGOWAN DBE
MR JUSTICE O'FARRELL DBE
Between
R E G I N ACrownv
Between
CELIA TAN
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Thomas appeared for AppellantMr D Rogers appeared for Crown
J U D G M E N T (Approved)
[1]PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 22nd December 2015 in the Crown Court at Isleworth, before Mr Recorder Featherby and a jury, this appellant was convicted after a 5 day trial of stalking involving serious alarm or distress and careless driving, both by majority verdict. On 5th February the Recorder sentenced her to 12 months' imprisonment suspended for 2 years, with a rehabilitation activity requirement, in relation to the offence of stalking. The court imposed a criminal behaviour order for 10 years, pursuant to section 22 of the Anti-Social Behaviour Crime and Policing Act 2014, which amongst other restrictions prohibited contact with the complainants. In relation to the careless driving she was fined the sum of £250 and her licence was endorsed with 5 penalty points. She was also ordered to pay a victim surcharge and prosecution costs. She now appeals against conviction by leave of the Full Court.[2]The facts were as follows. The appellant and the complainants were neighbours, the latter having moved into a house opposite the appellant in a quiet suburban street in Northwest London. The complainants alleged that over a period of 12 months the appellant had taken photographs of them and their children, video recorded them on a handheld camera, installed CCTV cameras in her home which focused on their address and contacted the police, traffic wardens and local authority making malicious allegations about them. These allegations included contacting the police on a number of occasions alleging that the complainants were responsible for throwing rubbish into her garden, damaging her car and house and assaults on her person. She had also contacted the police to report the complainant's daughter was screaming in their front garden "Mummy hit me" which resulted in the complainants being questioned by Social Services.[3]There was some 36 telephone calls between 16th May 2014 and 31st March 2015 to Hillingdon Parking Enforcement Company regarding cars parked outside the appellant's and the complainants' homes. The appellant had contacted the local planning enforcement officer regarding building works conducted at the complainants' home and had threatened civil proceedings in relation to nuisance, trespass and property damage.[4]On 27th November 2014 the appellant was issued with a harassment warning. On 11th March 2015 she was arrested following complaint of dangerous driving, during the course of which police seized a laptop, mobile telephone and CCTV cameras installed, although these were in fact dummies and not operational. The prosecution case was that the appellant had demonstrated, by a course of action, hostility to the complainants and their family. She had taken at least 131 photographs, made 25 telephone calls to the police, within a period of 3 months and more than 30 telephone calls to traffic wardens within a confined period. Some of allegations were serious. In particular, there was an allegation that a child distressed about a small accident that her brother had suffered ran into the front garden naked and screaming for her father to come and assist.[5]The prosecution relied upon the evidence of the complainants, corroborative material from neighbours, other members of public and police officers, evidence of a number of telephone calls made to the police and the local wardens, a bundle of photographs taken by the applicant, the harassment warning issued to the applicant and, additionally, bad character evidence. This last was the fact that the applicant had been subject to an anti-social behaviour order while living at another address in 2008 which she had subsequently breached.[6]The defence case was that the applicant's behaviour was pursued for the purpose of preventing or detecting crime; it did not and could not constitute a course of conduct capable of causing alarm and distress or causing substantial adverse effect on the complainant's day-to-day activities. She relied, not only upon her own evidence but the corroborative evidence of her daughter, and the fact that she had been informed, although it was not in fact the case, that a harassment warning had been served on the complainants.[7]The issue for the jury was whether the applicant's behaviour was anti-social and constituted harassment or whether she was acting to prevent and detect crime.[8]There was a further incident which involved a motorcar in which it was alleged that the appellant had driven dangerously. We do not summarise the evidence in relation to that count which is not the subject of appeal.[9]This appeal is mounted on the basis that it is contended that the learned judge failed accurately to direct the jury in relation to two important aspects of the case. The first is that the judge misdirected the jury on the proper approach to assess an element of the offence of stalking. In particular, he failed properly to explain that in order to constitute harassment it was not sufficient that the conduct was unattractive or caused alarm or distress; the course of conduct must amount to oppressive and unreasonable behaviour.[10]The second ground of appeal concerns the direction in relation to the nature of the alarm or distress caused. We deal with these grounds separately, although start by observing that the directions to the jury were the subject of argument before the Recorder and, as we understand it, agreement by counsel. That of course does not excuse failures to comply with the law. What it may explain is the way in which those involved in the case felt it appropriate to address the issues which the jury had to consider.[11]The route to verdict provided by the judge identified the key issues for the jury to consider. Turning to the first ground of appeal, it expressly required the jury to consider:
"Was what the defendant did harassment of [the complainants]?"
In the course of his summing-up the judge provided the following explanation of harassment. He said:
"What is harassment? ... Harassment is an ordinary English word. Harassment can include, for example, persistent and oppressive or unacceptable conduct targeted at another person or persons, which causes that person, alarm, fear or distress."
[12]Mr Thomas, on behalf of the appellant, argues that this explanation is not in accordance with the authorities which have identified the proper approach to this offence.[13]We start with the legislation. Section 4A of the Protection from Harassment of the Police Act 1997 provides:
"A person ('A') whose course of conduct— amounts to stalking, and either— causes another ('B') to fear, on at least two occasions, that violence will be used against B, or causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities is guilty of an offence if A knows or ought to know that A's course of conduct will cause ... such alarm or distress. (3) For the purposes of this section A ought to know that A's course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress. (4) It is a defence for A to show that— A's course of conduct was pursued for the purpose of preventing or detecting crime... "
Section 2A(2) provides that:
"A person's course of conduct amounts to stalking of another person if- (a) it amounts to harassment of that person (b) the acts or omissions involved are ones associated with stalking and (c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of another person."
[14]Harassment is not defined in the statute. But section 7(2) makes it clear "references to harassing a person, include alarming the person or causing the person distress."[15]The proper approach to this provision has been the subject of guidance in Majrowski v Guy's and St Thomas NHS Trust [2006] UKHL 34, in which Lord Nicholls of Birkenhead said at paragraph 30:
"... courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."
[17]The matter was further considered in the case of R v N [2016] EWCA Crim 92; [2016] 2 Cr App R 10, in which Gross LJ considered the appropriate direction that might be given to a jury in a case of harassment and pulling the threads together, provided the following analysis:
"39. i) We respectfully agree with and adopt the opening lines of this passage from Blackstone as providing a concise, working understanding of 'harassment'; thus, to repeat: 'The definition provided by s.7 is clearly inclusive and not exhaustive ... ‘Harassment’ is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to produce the consequences described in s.7. By s.1(3) of the Act ... reasonable and/or lawful courses of conduct may be excluded.' ii) Harassment, within the meaning of the Order, cannot simply be equated with 'causing alarm or distress'. iii) The danger of doing so is that not all conduct, even if unattractive unreasonable and causing alarm or distress, will be of an order justifying the sanction of the criminal law. iv) Here, the Judge’s direction ought to have included a reference to the jury needing to be sure that the conduct was oppressive, not merely causing alarm or distress. v) Some such further wording, dealing with the element or ingredient of oppressive conduct, would have served to focus the jury’s mind on the distinction between criminal conduct and conduct (however unpleasant) falling short of attracting criminal liability. vi) Accordingly, there was a misdirection in this case as to the meaning of the word 'harass' in the Order."
It is important to underline that in N, the direction which was the subject of criticism simply stated that harassment meant causing alarm or distress.[18]We return to the direction which the learned judge provided in this case, which we recognise does not follow word for word the explanation set out in Blackstone, which was approved by this court in N, although it is important to underline that this explanation describes the general understanding of the position. It does not constitute words that need to be followed as if in an Act of Parliament. It is no more (as Gross LJ made clear), "a working understanding". By providing examples of conduct which is persistent and oppressive or unacceptable as constituting harassment, in our judgment, the learned judge was providing a template or, as Mr Thomas argues, a threshold against which it was possible to judge of what the jury were sure in this case.[19]In short, although it might have been put in a clearer fashion, what the judge was making clear to the jury was the type of conduct that would be included within the definition of harassment. Given that the word "oppressive" does not appear in the statute, in our judgment, a challenge to the safety of the conviction can only be on the basis of the adequacy of the direction measured against the facts of the case before the court.[20]In this case, the argument was not about what constituted harassment, but whether what was happening came within the definition of the defence, namely whether what happened had been for the purpose of preventing or detecting crime. This recognises the combined approach of counsel to the proper directions in the case. This ground of appeal fails.[21]The second ground of appeal concerns the direction to the jury relating to alarm or distress. What

the judge said in his direction to the jury was in his written route to verdict to the jury was:

"Did the defendant's conduct cause [the complainant] alarm or distress which has had a substantial adverse effect on their usual day-to-day activities?"
The word "serious" before the words "alarm or distress" was omitted from the question as posed by the Recorder and was not identified as a material omission by counsel on either side.[22]It is important, of course, that the statutory definition of this offence was fully put before the jury. But in the context of this case the provision in section 4A(1)(b)(ii) of the Act, when read as a whole, is intended to limit the offence to conduct that has a substantial or material as opposed to trivial adverse effect on the person targeted. The judge's question made it clear that the conduct had to cause a substantial adverse effect on the complainant's activities. The omission of the word "serious" by the judge, although unfortunate, did not change the requirement for there to be a material consequence of any stalking.[23]Again, the issue before the jury again was not so much whether the threshold had or had not been passed, but required a consideration of a wholesale challenge to the evidence and justification for the way in which the appellant had behaved. Although, as we have indicated, the language used by the judge could have been improved, in our judgment, the directions to the jury were sufficient to ensure the ingredients of the offence were appropriately addressed. This conviction is not unsafe and the appeal is dismissed.