Director of Public Prosecutions v Baker [2004] EWHC 2782 (Admin)

Case No CO/3126/2004[2004] EWHC 2782 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 2nd November 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE THOMAS
MR JUSTICE FULFORD
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
MARGARET BAKERDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T MORAN (instructed by Crown Prosecution Service) appeared for CLAIMANTMR E A ELLIOTT (instructed by Travis Marston & Co) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE FULFORD: This is an appeal by way of Case Stated from a decision of the justices sitting at the Tynedale Magistrates' Court on 12th March 2004 when they acquitted the respond of an offence under sections 2(1) and (2) of the Protection from Harassment Act 1997, the particulars of the charge being: "that between 1st June 2000 and February 2003 at Hexham and Keswick pursued a course of conduct which amounted to harassment of Suzanne Brown and which you knew or ought to have known amounted to harassment of her in that on between those dates sent letters and made telephone calls".[2]The offence of harassment, created by the 1997 Act, is in the following terms: Section 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." Section 2(1) "A person who pursues a course of conduct in breach of section 1 is guilty of an offence." Two further relevant sections are: Section 7(2) "References to harassing a person include alarming the person or causing the person distress." and Section 7(3) "A 'course of conduct' must involve conduct on at least two occasions."[3]It is immediately clear from the above that the course of conduct said to be harassing, and relied on by the prosecution as constituting the particulars of the offence, covered a period of about 2 years 8 months. However, by section 127 Magistrates' Court Act 1980, a Magistrates' Court shall not try an information alleging a summary offence or hear a complaint unless the information was laid or the complaint made within six months from the time when the offence was committed or the matter of complaint arose.[4]The issue for this court that arises in those circumstances, put shortly, is identifying the correct approach to be adopted by the justices to the events and incidents that fall outside of the six month limitation period.[5]Before I turn to that sole question raised in this appeal, the relevant facts as set out in the Case Stated include the following matters. A sexual relationship began between the respondent and David Brown, the husband of the complainant, during the subsistence of the Brown’s marriage. In early 2000, the respondent informed the complainant, Suzanne Brown, that she was having a relationship with her husband. Since October 2002 the paths of the two women crossed on a number of occasions, but on the evidence admitted in the trial, the justices concluded those incidents occurred without the deliberate intention on the part of Margaret Baker of causing distress to Suzanne Brown.[6]Mrs Brown's evidence was that throughout the period covered by the charge she received telephone calls and letters of a harassing nature, although the letters were never signed and often no-one spoke during the unwanted telephone calls. In October 2002 the complainant saw Margaret Baker staring at her through the window of a shop. On another occasion in 2002, the respondent followed Mrs Brown whilst she travelled on a bus. On 16th November 2002 she received a letter from, she believed, Margaret Baker that contained, inter alia, the following:
"David and me are very happy together, we have spent days together that week"
. There were other letters that were "from your friend" and which started off with the expression "I have to let you know". Mrs Brown felt that she was being watched. In either January or February 2003, Mrs Brown was telephoned by Margaret Baker. An injunction obtained in late 2002 or early 2003 led, for a period, to a cessation of this kind of conduct. However, on 25th January 2003 someone who withheld their number and did not speak when the telephone was answered, rang her home. On 8th March 2003 whilst at a leisure centre with her husband and sons, Margaret Baker parked her car outside right in front of the complainant's own motorcar. Mrs Brown said that Margaret Baker had followed her motorcar at school time, and generally she said these incidents went beyond the inevitable occurrences of people living in the same locality.[7]Margaret Baker denied harassing the complainant, and in so far as their paths had crossed she stated in evidence this was the result of them both living in the same area. She maintained she had not sent any letters bar one, or made any telephone calls.[8]Before any evidence was called a preliminary issue was raised before the justices, which was resolved as follows: "Advice was given by the Legal Advisor to the effect that the bench may wish to consider the question of whether or not evidence concerned with the period prior to 22nd October 2002, that being 6 months prior to the date of the last incident of harassment complained of by Mrs Brown, could be heard by the Court. Any incidents prior to this date therefore may be viewed as being outside the 6-month limitation for proceedings for a summary only offence. This advice was agreed with by the defence and this thinking echoes in a submission as to the point. The prosecution however contended that the 6-month limitation could not prevent evidence from more than 6 months prior to the last incident complained of from being admitted due to the nature of the offence and it being a course of conduct. The court was referred to two authorities which were DPP v Ransdale (2001) and Robert William King v DPP (2000). It was decided that the advice from the Legal Advisor and defence submissions were persuasive and a ruling to that effect was made, excluding evidence dating from before 22nd October 2002 as inadmissible." (I note that the justices' reference to the relevant date being 22nd October 2002 constituted a slight error; the cut-off point on this formulation should have been 10th October 2002, namely 6 months prior to when the information was laid or the complaint was made, which was on 10th April 2003).[9]In the light of that ruling, the question formulated for consideration by this court, but amended slightly to deal with certain minor errors, is:
"Were the Magistrates correct in adjudicating that any evidence of harassment prior to 10th October 2002 was inadmissible on the basis that it was more than 6 months prior to charge and thereby outside the 6 months limitation for proceedings for a summary only offence?"
[10]The evidence that the justices excluded involved a very long history, going back to June 2000 when the complainant began receiving anonymous telephone calls, during which Mrs Brown was asked if she knew that her husband was with "Margaret". In October 2000 she realised the woman who was ringing her, certainly on most occasions, was Margaret Baker. Thereafter Mrs Brown received a number of telephone calls and letters in which various matters were raised, all in the view of the complainant of an unwelcome and harassing nature. By way of example, on 4th January 2001 she received a three-page handwritten letter in which the correspondent, who she concluded was Margaret Baker, said she had had an affair with Mr Brown; he had sent her flowers and jewellery, and they had been away together. Moreover, the couple had stayed at Mrs Brown's house whilst the latter was away.[11]On other occasions, the respondent, usually when driving her car, followed or intercepted Mrs Brown; as I have already indicated as regards the later period, these incidents occurred too frequently, in the view of the complainant, for their meetings to be reasonably explained by simple coincidence.[12]It is to be noted that both the appellant and the respondent agree that the justices erred in not admitting the entirety of the excluded evidence; the respondent accepts that the submissions advanced in the court below on her behalf were misconceived.[13]Against that background, I turn to the relevance and admissibility of the incidents that occurred prior to 10th October 2002. In my judgment for two principal reasons the justices erred in excluding this material.[14]First, they apparently failed to consider whether the evidence for the whole of the period was admissible because the offence alleged was a "continuous" or "continuing" offence. As Lord Roskill in Hodgetts v Chiltern District Council [1983] 2 AC 120 at 128 observed:
"It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time."
[15]In those circumstances, what is the position if some of the acts relied on occurred within the six months prior to the laying of the information or the making of the complaint, and some occurred outside of that period, and it was on the basis of all of the incidents that the prosecution submitted the court should conclude that there had been a course of conduct amounting to the harassment of another? This question may have particular significance if the prosecution is only able to prove the offence -- the course of conduct -- if the court is able to take into account instances of harassment over the extended period (viz more than six months), with some of the occasions invoked being within, and some outside, the limitation period.[16]In Sai Lau v Director of Public Prosecutions Transcript 22nd February 1999, Scheimann J (as he then was) in a judgment with Silber J agreed said as follows:
"I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made. One can conceive of circumstances where incidents, as far apart as a year, could constitute a course of conduct and harassment. In argument Mr Laddie put the context of racial harassment taking place outside a synagogue on a religious holiday, such as the day of atonement, and being repeated each year as the day of atonement came round. Another example might be a threat to do something once a year on a person's birthday. Nonetheless the broad position must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct."
[17]It is right to observe that in that case the two instances of misconduct relied on by the prosecution were within the six month limitation period, and accordingly this court was not then considering issues raised by the 1997 Act from precisely the same viewpoint provided by this appeal; however, the example cited by Schiemann J is of considerable assistance in demonstrating, with a continuous or continuing offence of this kind, how the criminality of the defendant may only be revealed by taking into account his or her actions over a period of time that is substantial.[18]In Bishop v The Uxbridge Magistrates' Court [2001] EWHC Admin 104, in another appeal by way of Case Stated concerning the 1997 Act, the court was confronted with a particular incident of abuse that occurred on 4th December 1999, together with the suggestion that during the period since April 1999 "the appellant had verbally abused and threatened [the complainant] on numerous [and I interpolate to add unspecified] occasions". The information referred only to 4th December 1999, and omitted reference to the earlier period. Accordingly, the issue raised on that appeal was whether the justices correctly took into consideration events that occurred prior to 4th December 1999. Although the court did not deal directly with the issue before us, Penry-Davey J, in a judgment with which Rose LJ agreed, first set out the questions that were posed for the court, as follows: "(9) The questions for this court are first whether the justices were entitled to admit the evidence of events alleged to have occurred outside the date contained in the information, and secondly whether having admitted that evidence they were entitled to find that a course of conduct included those events as well as events occurring on the date stated in the information".[19]He answered those two questions as follows:
"(16) In my judgment the answer to both questions posed in this case is yes. The evidence relating to dates other than 4th December was admitted without objection and clearly in no way took the appellant by surprise. In the light of rule 100 of the Magistrates' Court Rules 1981 if objection had been taken on the basis of a fundamental defect an application could have been made to amend the information to allege a period between dates rather than a specific date, but that was not done and there was, in my judgment, in the circumstances of this case, no question of any injustice or prejudice to the appellant. (17) In any event, evidence about events other than those on 4th December may well have been admissible to prove the appellant's knowledge of the effect that his conduct would have on the complainant. In my judgment, in this case, the evidence having been admitted without objection, the justices were clearly entitled to take it into consideration, and depending on their view of its weight to rely on it or to reject it in coming to conclusions in the case. They accepted the evidence and convicted the appellant. There is no basis in law, in my judgment, for the attack on this conviction and, accordingly, the appeal should be dismissed."
[20]On the basis this was a continuing offence, ending in February 2003, so long as at least one of the incidents relied on occurred within the limitation period, I consider the provisions of section 127 Magistrates' Court Act 1980 were not violated: the offence was committed within the relevant six month period, because the last incident relied on to prove it occurred within that period. The offence as framed by the prosecution spanned two years and eight months, and was only complete when the last act was committed. Of course, the offence might have been drafted so as to cover a different (and shorter) timeframe, but as charged it subsisted until the final event relied on. In my view, this purposive interpretation of the section meets the overall justice of the situation, in that it ensures that an offence committed over a long period of time can be tried as readily as one in which all of the relevant facts occur within a six month period. Moreover, generally this approach should avoid prejudice to defendants, not least because in the result they will often be charged with one, rather than a number of offences.[21]The second route by which this material fell to be admitted, subject to any arguments as to fairness under section 78 Police and Criminal Evidence Act 1984 or otherwise, was in order to establish the relevant background to the alleged offence. In R v Williams (C.I.), 84 Cr App R 299 the Court of Appeal approved the following approach of Purchas L.J. in the unreported case of R v Pettman 2nd May 1985:
"(W)here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."
[22]This part of the judgment in Pettman was described by the Court of Appeal in R v Fulcher [1995] 2 Cr App R 251 as a "useful formulation".[23]In R v Sawoniuk [2000] 2 Cr App R 220, the Lord Chief

Justice (Lord Bingham) giving the judgment of the court said:

"Criminal charges cannot be fairly judged in a factual vacuum. In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed. This, as we understand, is the approach indicated by this court in Pettman, May 2nd 1985, (unreported) approved in Sidhu (1994) 98 Cr App R 59 at 65 and Fulcher [1995] 2 Cr App R 251 at 258."
[24]On the basis of that approach, I consider that the events described by Mrs Brown over the entire period were evidence of a continual background, which was highly relevant to a number of issues, and including whether: i) the meetings between the respondent and the complainant were truly explicable as being no more than coincidence; ii) the respondent was both the author of the letters and the person who telephoned the complainant on most, if not all, occasions; and iii) the complainant was, by her actions, intending to cause distress to the complainant.[25]No potential unfairness has been identified in relation to the introduction of this evidence on behalf of the respondent, and accordingly in my judgment if the justices had approached this issue properly it was inevitable that for this second reason the excluded evidence would have been admitted.[26]Finally, as regards the proper disposal of this appeal, it follows I, for my part, answer the justices' question in the negative. That said, it is necessary to consider whether it is necessary to remit this case to the justices for a rehearing. We were told this morning that although there have been no reports to the police of any repetition of these unfortunate events, when a police officer saw the complainant last week, she said that subsequent to the last reported event, which was nearly two years ago, she had experienced some very minor incidents. Those can be summarised as follows. Sometimes on a Sunday morning the respondent, who lives in a different area of Hexham, goes jogging down the complainant's street. In addition, on occasion when the complainant is out shopping or is in a local cafe or cafes, the respondent will walk past and may look at her. I agree with the description that those events are of a minor nature. Apart from those matters, for the last two years there has effectively been no repetition of the more serious events to which I have referred. In those circumstances I do not consider it would be in the interests of justice to remit this case for a rehearing. However, the respondent should understand that if there are any material grounds for complaint in the future, then she is at risk of being charged in relation to those new events. Accordingly, apart from answering the question posed by the justices in the way that I have indicated, I would make no further order on this appeal.

LORD JUSTICE THOMAS: I agree. Thank you both very much for your helpful skeletons and for the very short submissions that you made.

[28]MR ELLIOTT: My Lord, just one matter. I am not certain, given the new provisions, that I need an order but my silver-toned advocate is concerned to cover all eventualities. Might I have an order for Legal Aid taxation?

LORD JUSTICE THOMAS: We would certainly say there ought to have been representation. If you need any assessment or order made, you may have such as may be required.