Neutral Citation Number:  EWCA Crim 1251
IN THE COURT OF APPEAL
Royal Courts of Justice
Thursday 17th May 2001
B E F O R E :
LORD JUSTICE KENNEDY
(Vice President of the Queen’s Bench Division)
MR JUSTICE CURTIS
MR JUSTICE HUGHES
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R E G I N A
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Computer Aided Transcript of the Stenograph Notes of
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MR J BUTTERFIELD appeared on behalf of the Appellant
MR M F PARKES appeared on behalf of the Crown
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17th May 2001
- MR JUSTICE HUGHES: On 21st July 2000 in the Crown Court at Stafford the appellant was convicted of one count of harassment contrary to sections 1 and 2 of the Protection from Harassment Act 1997. He was in due course conditionally discharged and made the subject of a restraining order. His appeal raises the question whether the schizophrenia from which he admittedly suffered has the effect of taking his conduct out of the Act.
- It was common ground that the appellant had written a number of letters to his local Member of Parliament. They were written, or at least dispatched, on a number of different occasions, at least two. Accordingly there was a course of conduct for the purposes of section 7(3) of the Act. The letters were rambling and in many places incoherent. They demonstrated an obsessive concern about a number of real or imaginary local issues. They also, however, contained a measure of abuse and some material capable of being construed as threats of violence and/or death directed to the Member of Parliament to whom they were sent.
- The recipient gave evidence that he felt threatened by the letters, notwithstanding his public position and the exposure to the attention of many different kinds of people which necessarily goes with it. He further gave evidence that the letters had induced nightmares and that he had had to alter the lifestyle of both himself and his young family in case some attack upon them should occur.
- The jury was correctly directed in accordance with section 7(3) that harassment included alarming or distressing the victim, and the question of whether the letters had that effect (which was put in issue) was properly left to them. There is realistically no challenge now to the jury’s decision that they did. Accordingly, we must proceed upon that basis of fact.
- The appellant did not answer questions when interviewed by the police, nor did he give evidence. In due course the learned trial judge, having heard the medical evidence to which we are about to refer, directed the jury that no inference adverse to the appellant could be drawn from his silence on either occasion.
- The appellant called a consultant forensic psychiatric, Dr Reid. Her evidence, which was unchallenged, was that the appellant was at all material times suffering from schizophrenia with familiar symptoms of disordered and obsessive thoughts, delusions and a belief in conspiracies to achieve objects to which he objected. The doctor gave evidence that the letters were the product of his schizophrenia, that because of his illness he believed unshakably the things that he said in the letters and that he would have felt compelled to write them. Moreover, she said that if he felt that his earlier letters were being ignored that would have made the disordered beliefs worse.
- The offence of harassment is created by section 2(1) which reads:
“A person who pursues a course of conduct in breach of section 1 is guilty of an offence.”
- That takes one to section 1 which reads:
“(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.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to 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.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”
- The Act contains no definition of harassment but there are a number of provisions which bear upon the constituents of the offence. The first is section 7(3) which, as we have already indicated, provides that for there to be a course of conduct the conduct must have occurred on at least two occasions. The second is section 7(2) which provides that references to harassing a person include, but it would seem are not confined to, alarming that person or causing him distress. Thirdly, section 1(3) takes out of the concept of harassment conduct of the kind there referred to, providing the person who pursued it demonstrates that he is within one of the exceptions. Fourthly, and most importantly for the present case, is section 1(1)(b) which, read with subsection 1(2), imposes the requirement that the course of conduct must be one which the defendant knows or ought to know amounts to harassment and that the test of whether he ought to know it or not is whether a reasonable person in possession of the same information would think that it did amount to harassment.
- Mr Butterfield’s principal short submission on behalf of the appellant is that in order to apply this test the hypothetical reasonable person referred to in section 1(2) must be endowed with the relevant characteristics of the accused and in particular with any recognisable mental disorder to which he is subject. In the present case the consequence of that submission, if correct, is that the appellant is to be judged by the standards of the hypothetical reasonable schizophrenic.
- Mr Butterfield’s associated secondary submission is that the jury ought to have been directed that it was open to them when considering the defence provided by subsection (1)(3)(c) to say that the appellant’s conduct was, in the particular circumstances of his illness, a reasonable one. Any construction other than that, says Mr Butterfield, is simply unfair to an accused with a recognisable mental illness.
- The judge ruled against those submissions, ruling shortly that the mental illness in question was not a defence.
- Mr Butterfield repeats the submissions persuasively and succinctly here. He relies for support upon the rules relating to provocation and duress. He submits that the law of provocation expressly contemplates what he refers to as a mixed objective/subjective test, namely whether a reasonable man, but one sharing the relevant characteristics of the particular defendant, would have acted as the defendant did.
- So far as the law of duress is concerned, he has referred us to the well known passage of this court in R v Graham (1982) 74 Cr App R 235, which we remind ourselves was cited with approval by Lord MacKay of Clashfern in R v Howe (1987) 85 Cr App R 32 at 65. In Graham Lord Lane CJ giving the judgment of the court said this:
“As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness.”
- A little later he said this:
“The Crown having conceded that the issue of duress is open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows: (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [another] had said or done, he had good cause to fear that if he did not so act [that other] would kill him, or (if this is to be added) cause him serious physical injury? (2) If so have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of this defendant, would not have responded to whatever he reasonably believed [that other] said or did by taking part in the killing?The fact that a defendant’s will to resist had been eroded by the voluntary consumption of drink or drugs or both is not relevant to that test.”
- We observe in passing that, of course, that case was decided before the House of Lords established in Howe that duress is not a defence available to those charged with murder.
- The question raised by these submissions is one of the proper construction of the Protection from Harassment Act 1997. As the first word of that title suggests, this is an Act whose purpose is significantly protective and preventative. The long title is “An act to make provision for protecting persons from harassment and similar conduct.”
- As well as making a course of conduct amounting to harassment an offence, the Act by section 3 provides civil remedies by way of damages for a breach of section 1 and by way of injunction to restrain an apprehended breach of it. Further, section 5 enables a criminal court, before whom a defendant has been convicted under section 2, to make a restraining order prohibiting him from doing anything specified. Such a restraining order is to be made for the purpose of protecting from harassment not only the victim of the offence but also any other person specified. As is well known the Act was passed with the phenomenon of “stalking” particularly, although not exclusively, in mind. The conduct at which the Act is aimed, and from which it seeks to provide protection, is particularly likely to be conduct pursued by those of obsessive or otherwise unusual psychological make up and very frequently by those suffering from an identifiable mental illness. Schizophrenia is only one such condition which is obviously very likely to give rise to conduct of this sort.
- We are satisfied that to give the Act the construction for which Mr Butterfield contends would be to remove from its protection a very large number of victims and indeed to run the risk of significantly thwarting the purpose of the Act. If such a construction is correct it would prevent the conduct in question from being a breach of section 1 and thus exclude not only suitable punishment for the perpetrator, but also damages, and, more especially, an injunction or restraining order for the protection of the victim. We do not believe that Parliament can have meant the provisions in question to have the meaning for which Mr Butterfield contends. Moreover, as it seems to us, if Mr Butterfield’s submission were correct then subsection 1(2) would have been inserted unnecessarily into the Act.
- 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.
- 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.
- Nor does it seem to us that the suggested analogies with provocation and duress are of assistance.
- Since the decision of the House of Lords in R v Morgan Smith  1 Cr App R 31 it is in any event open to debate how far the law of provocation is helpfully or accurately expressed by the elusive concept of a reasonable man equipped with characteristics which are by definition unreasonable: see in particular the speeches of Lord Hoffman and Lord Clyde. But however that may be, provocation is not analogous to the question before us. The law of provocation was designed by the common law, as preserved and modified but not defined by section 3 of the Homicide Act 1957, to provide a partial defence to a charge of murder where the elements of the offence are made out and in order to mitigate in appropriate cases the consequences of a mandatory penalty, at one time death but now life imprisonment. This partial defence is not a sound basis for the construction of a statute whose purpose can clearly be seen to be significantly protective and preventative.
- Similarly the law of duress addresses the question when a particular defendant is to be excused from responsibility, notwithstanding that the constituents of the offence are made out; in this instance excused by the very limited and special factor of compulsion associated with a perceived threat of death or grievous bodily harm. As with provocation the focus is on the particular defendant. It does not follow that the approach should be the same where the question is whether the constituents of the offence are made out, particularly where the statute which falls to be construed has the protective and preventative purposes to which we have referred.
- Moreover, the law of duress does not in any event depend upon any statutory provision incorporating a reference to a reasonable person. This court in Graham did not speak of a reasonable person, perhaps in part because of the well known difficulties associated with that anthropomorphic concept when it becomes necessary to contemplate a reasonable person endowed with unreasonable characteristics. Instead the court spoke of a sober person of reasonable firmness sharing the characteristics of the defendant. It employed that expression as an aid to answer the question whether the particular defendant could have been expected to resist the pressure applied to him and it emphasised that the question involved the imposition of an objective standard of reasonableness. There is, we are satisfied, no useful parallel between that question and the construction of section 1 of the Protection from Harassment Act.
- Lastly we are satisfied that there is in this case no assistance to be gained by the appellant from Article 14 of the European Convention on Human Rights. That Article requires that the rights and freedoms set out in the Convention are to be secured without discrimination. It comes into play only when the application of some other Article in the Convention is in question.
- It is suggested that the right to a fair trial under Article 6 was in this case being applied in a discriminatory fashion. It was not. The process of trial applied equally to this appellant as to any other. Moreover, so did the terms of the Protection from Harassment Act. The offender’s illness is relevant to sentence and plainly was regarded as significant at that stage in the present case.
- Those being our conclusions, it follows that this appeal must be dismissed.
MR BUTTERFIELD: My Lord, may I raise one final matter?
LORD JUSTICE KENNEDY: Yes.
MR BUTTERFIELD: As you may have seen from the papers it is an area that the learned judge found himself short of helpful guidance about. That, of course, has now been provided by much of my Lord’s judgment, but as has been acknowledged by a number of different people in the source of their different comments about the case, this is an area where the Act does bite on people with disorders, at the lower end from mild personality disorders up to the higher end severe mental illnesses. And I wonder if you might consider, therefore, that the question raised is one of some importance, and I refer to public importance? I invite you to consider formulating a question along those lines.
LORD JUSTICE KENNEDY: I think normally if you want us to consider a question, it is for you to formulate it and for us to decide whether to certify it.
MR BUTTERFIELD: I have drafted one.
LORD JUSTICE KENNEDY: Let us have a look. (Handed). Have you had a chance to look at it, Mr Parkes?
MR PARKES: I have, thank you, my Lord.
LORD JUSTICE KENNEDY: Yes.
MR BUTTERFIELD: That is the point I raise, my Lord.
LORD JUSTICE KENNEDY: Do you want to say anything, Mr Parkes?
MR PARKES: My Lord, I don’t think I can properly add anything to what has been said.
LORD JUSTICE KENNEDY: Thank you. (Pause). We are satisfied that it is a point of law, but I am afraid we are not persuaded that it is a point of sufficient public importance to certify.
MR BUTTERFIELD: So be it, my Lord.