“20. We agree accordingly with the learned judge that except in so far as it requires the jury to consider the information actually in the possession of this defendant section 1(2) requires the jury to answer the question whether he ought to have known that what he was doing amounts to harassment by the objective test of what a reasonable person would think. Its words, we are satisfied, are abundantly clear. 21. As to section 1(3)(c) that, we are satisfied, poses even more clearly an objective test, namely whether the conduct is in the judgment of the jury reasonable. There is no warrant for attaching to the word “reasonable”; or via the words “particular circumstances” the standards or characteristics of the defendant himself” ii) A course of conduct which is unattractive and unreasonable does not of itself necessarily constitute the criminal offence under s.2; it must be unacceptable and oppressive conduct such that it should sustain criminal liability. In Majrowski v. Guy & St. Thomas’s NHS Trust[2006] UKHL 34 ([2007] 1 AC 224 ), where the issue related to vicarious liability for harassment, Lord Nicholls of Birkenhead in giving the first speech made this clear at paragraph 30: “Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the “close connection” test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, 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.”
“What might not be harassment on the factory floor or in the barrack room might be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognising harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”
“In my view, these propositions accurately set out the law and the cautious approach that any court should adopt where the allegation of harassment is based upon either two incidents or any other series of incidents, if few in number and widely spaced in time. The issue for the court is whether or not the incidents, however many they may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct. … 12. 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. The mischief, which the Act is intended to meet, is that persons should not be put in a state of alarm or distress by repetitious behaviour.”
“Adopting the approach of the Divisional Court, we conclude that if there is any possibility (seen prospectively or retrospectively) that the jury has convicted on the sort of basis to which we have referred, then assistance of the kind prescribed by the divisional court is in our judgment essential. It is not just a matter of counting the incidents and saying “We have two, that is enough.”
“I suspect but I cannot prove”