James v Crown Prosecution Service [2009] EWHC 2925 (Admin)

[2009] EWHC 2925 (Admin)Case No CO/6535/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 4 November 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE DAVID CLARKE
Between
MARTIN RICHARD JAMESClaimantv
Between
CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
for The Claimant did not attend and was not representedMr Alastair David (instructed by the CPS) appeared for Defendant
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an appeal by way of case stated against a decision of the Swansea Crown Court, who, on 3 October 2008, found the appellant guilty of an offence contrary to section 2 of the Protection from Harassment Act 1997. They in turn dismissed his appeal against a conviction from the Llanelli Magistrates' Court.[2]The facts briefly were as follows. The appellant was charged with this offence for pursuing a course of conduct between 8 and 12 November 2007 which it was said amounted to the harassment of Mrs Thomas. At the time the appellant was receiving care and services from the Carmarthen Social Services. Mrs Thomas was the acting team manager of the Social Services Carmarthen Adult Team.[3]In early November 2007 the appellant broke his foot and his care package was increased. It was paid for by the Carmarthen Social Services. On 8 November he telephoned Social Services to complain about his care. Mrs Thomas was unavailable at the time, but she returned his call. During that conversation he swore, shouted and verbally abused her. Later on the same day a similar incident occurred. This time it was overheard by another member of staff. On 9 November again he called Social Services, again wishing to complain about his carers. As before, Mrs Thomas was not able speak to him at the time, but subsequently returned his call and was verbally abused.[4]On 12 November he made a further call, when he was put through directly to Mrs Thomas. She was in a meeting with a Mr Rogers, so the telephone call was put on speakerphone and heard by both of them. Again the appellant was abusive. Indeed, he apparently said that he could not promise that he would allow Mrs Thomas to leave his house without an axe in her head. The evidence was that Mrs Thomas was distressed and upset by these calls. It was her duty to return the calls if the appellant was not able to get hold of her because of her position as acting team manager of the Social Services Carmarthen Adult Team.[5]Subsequently the appellant was arrested. He denied the allegations, but was convicted both by the magistrates and before the Crown Court on the re-hearing. The questions posed for the opinion of the High Court in the case stated are these:(1) whether it is correct in law that the incidents of 8 and 9 November amounted to a course of conduct;(2) whether the court was correct in law in concluding that the appellant knew or ought to have known that his conduct amounted to harassment."[6]The first question is, with respect to the court, rather inappropriately framed. It is plain that the course of conduct on which the court relied was not limited to the dates of 8 and 9 November, but included the 12th also. Apparently the reason it was put like this was because the appellant was contending (and now contends before us) that the incidents of 8 and 9 November could not be included in any assessment of the course of conduct because it was Mrs Thomas, the acting team manager, who initiated matters on those days by telephoning the appellant. True it was that he had initially contacted her, but it was said that it could not be a course of conduct if the appellant himself had not taken the positive action of seeking to contact the person allegedly harassed.[7]The relevant law is as follows. Section 2(1) of the Act provides:
"(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 another."
[8]Sub-section (2) then deals with the question of what somebody ought to know, and it is as follows:
"For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves 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."
[9]By section 7(4) "conduct" is said to include speech. Section 7 also provides that:
"References to harassing a person include alarming the person or causing the person distress."
[10]I turn to the first question. Can it be said that the telephone calls made on 8 and 9 November were not capable of constituting a course of conduct because the abusive contents of those particular telephone calls did not result from the appellant himself contacting Mrs Thomas? In my judgment, this is, with respect, a hopeless argument. By section 7(3) a course of conduct is defined as follows:
"A 'course of conduct' must involve- (a) in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person."
[11]There are a number of authorities, such as Patel [2005] 1 Cr App R 440, which indicate that for a number of incidents to constitute a course of conduct, they must be related in type and in context. Plainly the fewer incidents there are and the further in time they are apart, the less likely it will be that they can properly be treated as constituting a course of conduct. But it is all a question of fact. The question for us is whether there is evidence capable of sustaining that conclusion. In my judgment, there plainly is. These were a number of incidents over a short period.[12]I wholly reject the notion that the telephone calls of 8 and 9 November should be excluded from the analysis of course of conduct. The fact that the appellant did not initiate the particular calls is irrelevant. There are two answers to that point. The first is that the court found (although this was not specifically recorded in the statement of case) that the appellant knew when he rang Mrs Thomas that she would be obliged to return his call if she were not immediately available. The second and more important point is that, in any event, it matters not whether he directly initiated the telephone calls or not. If I am continually abusive to someone who comes within my vicinity, that may still be capable of constituting a course of conduct, even if the victim chooses to come within my vicinity. The fact that he or she chooses to do so might arguably be relevant to the question of whether there is harassment, but not to the question of whether there is a course of conduct. It follows that, in my view, the answer to the first question, at least as I have reformulated it, is that the court was entitled to conclude that the incidents amounted to a course of conduct, and were entitled to conclude that the incidents of 8 and 9 November specifically could be taken into account when determining that there was a course of conduct. There is no error of law.[13]The second question is whether the appellant knew or ought to have known that his conduct amounted to harassment. He plainly knew what he was saying. He may not have appreciated that it constituted a criminal offence of harassment, but that is not immaterial. He knew, or ought to have known, that he was, by his actions, harassing Mrs Thomas. The test for determining whether the requirement is satisfied is, as I have indicated, set out in section 2(2), and it is whether a reasonable person in possession of the same information would think that the course of conduct amounted to what constitutes harassment. I have no doubt that a reasonable person would reach that conclusion, and that the answer to the second question also is that the court was entitled to reach the view that the criminal offence of harassment had been made out.[14]So there is no substance in this appeal. I should add this. We have seen a skeleton from counsel acting for Mr James, and we also had a helpful skeleton from Mr David for the interested party, the Crown Prosecution Service. But it appears that some time yesterday the solicitors for Mr James came off the record and counsel has not appeared before us today. The case has not been formally withdrawn. We did consider whether we should adjourn this matter in order to see what Mr James' intentions were, but we have come to the very clear view that given that we have legal submissions before us, that he has made no application for the matter to be adjourned; that counsel for the Crown Prosecution Service is here and has travelled up from Wales for the purposes of this hearing; and that we are wholly satisfied that there is really no substance at all in this appeal, it would be wrong to let the matter be further delayed thereby incurring further costs for both the Court Service and for the parties.

MR JUSTICE DAVID CLARKE: I agree.

[16]MR DAVID: My Lord, my knowledge of Mr James is that he is normally subject to legal aid, so therefore there will not be an application for costs in this case, especially as he is not present, in any event.

LORD JUSTICE ELIAS: That is realistic, if I may say so. Thank you very much.