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Case Digest (Criminal)

Case Digest (Criminal)

  • R v Celia Tan [2017] EWCA Crim 493

A judge had not erred when explaining to the jury the meaning of “harassment” in relation to an allegation of stalking involving serious alarm or distress contrary to the  Protection from Harassment Act 1997 s.4A.

Harassment was not defined in the Protection from Harassment Act 1997. However, s.7(2) made it clear that “References to harassing a person include alarming the person or causing the person distress”. By providing examples of conduct which was persistent and oppressive or unacceptable as constituting harassment, the judge was making clear to the jury the type of conduct which would be included within the definition of “harassment”.

‘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.’

  • R. v Angwin (Steven)  [2017] EWCA Crim 45

A sentence of 18 months’ imprisonment for an offence of harassment causing fear of violence was reduced to 12 months’ imprisonment. Weighing all the relevant features in the balance, the judge had taken too high a starting point.

  • R. v Walker (Lee David)  [2016] EWCA Crim 2053

The appellant (W) appealed against his sentence on conviction, after a guilty plea, of nine months’ imprisonment for harassment without violence under the Protection from Harassment Act 1997 s.2(1) and doing acts tending and intended to pervert the cause of justice. The appeal was dismissed.

  • R. (on the application of Jones) v Liverpool and Knowsley Magistrates’ Court  [2016] EWHC 3520 (Admin)

A conviction for harassment imposed in the defendant’s absence was overturned where his non-attendance was the fault of his solicitors, and where the decision to proceed in his absence had been made on the erroneous assumption that his solicitors were in a position to cross-examine the complainant before legal aid had been granted.

  • R. v N  [2016] EWCA Crim 92

A conviction for breach of a non-molestation order was unsafe where the judge had misdirected the jury on the meaning of harassment. The jury direction had equated harassment with causing alarm or distress and had omitted any mention of oppression: the difference was significant and went to the minimum threshold requirement for conduct to warrant the sanction of the criminal law.

  • R. v Viette (Lee)  [2016] EWCA Crim 53

A sentence of two years and eight months’ imprisonment imposed for putting a person in fear of violence by harassment was reduced to two years’ imprisonment where no actual violence had been used and the judge had taken too high a starting point. The appellant appealed against a sentence of two years and eight months’ imprisonment following a guilty plea to putting a person in fear of violence by harassment.

  • R. v Ringer (Katie) [2016] EWCA Crim 241

A total sentence of two years and nine months’ detention imposed following guilty pleas to fraud, harassment and threatening to commit criminal damage was excessive in the light of the offender’s age, relatively good record and difficult psychiatric history. The sentences for all the offences were ordered to run concurrently, giving a total sentence of two years’ detention.

  • R. (on the application of Carney) v North Lincolnshire Council [2016] EWHC 676 (Admin)

A judge had been entitled to find that an anti-social behaviour order prohibiting an appellant from engaging in any behaviour likely to cause harassment, alarm or distress to any local authority employee for five years was necessary and proportionate. Local authority employees should be able to carry out their functions without being subjected to threatening behaviour.

  • R. v Qosja (Robert)  [2016] EWCA Crim 1543

 The court considered what degree of immediacy and/or specificity was required in relation to the fear of violence for the purpose of the Protection from Harassment Act 1997 s.4A(1)(b). It could be a fear of violence on a separate and later occasion. Further, there was no requirement for the fear to be of violence on a particular date or time in the future, or at a particular place or in a particular manner, or for there to be a specific threat of violence.

  • R. v Cordle (John William)  [2016] EWCA Crim 1793

Consecutive sentences totalling four years and two months’ imprisonment for harassment and breach of a restraining order in respect of four victims had not breached the principle of totality. When a defendant was sentenced for a series of offences against different victims, which formed a separate course of conduct, it was not inevitable that he would be entitled to a reduction in the total sentence.

  • R. v Angwin (Steven) [2017] EWCA Crim 45

A sentence of 18 months’ imprisonment for an offence of harassment causing fear of violence was reduced to 12 months’ imprisonment. Weighing all the relevant features in the balance, the judge had taken too high a starting point. She gave him another £5. The appellant was arrested and charged with robbery and harassment and it was accepted that in general, a charge of robbery was more serious than a charge of harassment, which was reflected in the maximum sentences available for the two offences.

  • Madeley v Dzingel, Queen’s Bench Division, 03 February 2017 (unreported)

A known figure in the world of online fitness advice could not rely on the Protection from Harassment Act 1997 to restrain unauthorised use of her name and photographs on another person’s fitness website and on social media. It was a case of identity fraud and belonged in the Chancery Division.

  • R. (on the application of Jones) v Liverpool and Knowsley Magistrates’ Court  [2016] EWHC 3520 (Admin)

A conviction for harassment imposed in the defendant’s absence was overturned where his non-attendance was the fault of his solicitors, and where the decision to proceed in his absence had been made on the erroneous assumption that his solicitors were in a position to cross-examine the complainant before legal aid had been granted.

  • Shakil-Ur-Rahman v ARY Network Ltd  [2016] EWHC 3110 (QB)

A claimant succeeded in a defamation claim where he had been subjected to a campaign of abuse through broadcasts on UK television. The defamation had caused serious harm to his reputation and he was awarded £185,000 in damages. However, his claim under the Protection from Harassment Act 1997 failed as he had been out of the jurisdiction at the time of the broadcasts.

  • R. v Cordle (John William)  [2016] EWCA Crim 1793

The appellant had a history of stalking and harassing his former partners. He had served terms of imprisonment for harassment. An indefinite restraining order had been made to protect one of his former partners (V1). He breached the order by telephoning her. He then began to harass another former partner. n one day he called and texted her 136 times, threatening to throw acid in her face. He continued to make similar threats for 23 days, sometimes calling every two minutes. V2 had two young sons. The appellant threatened to torture them and petrol bomb their school, causing the school to be placed in partial lock-down.

The appellant had a history of breaching restraining orders made by the courts. He had made separate and deliberate decisions to enter into a course of harassment of each of the victims, knowing that his threats to each victim would be known by and aggravate the fear and alarm caused to the others. He had conducted a campaign of harassment against three innocent women, which was further aggravated by threats to school-aged children that had an impact on their school and on other families. All of that was intended by the appellant. The judge had reached a just and proportionate sentence for the totality of the appellant’s offending. He gave the appellant full credit for his pleas of guilty, and the total sentence was just.

  • R v Flasle [2015] EWCA Crim 1121 

This case is concerned with whether a post- acquittal restraining order was properly made under section 5A of the Protection from Harassment Act 1997 amended.

The appellant and complainant were in a relationship and had a son however they broke up in 2009. This resulted in the man having contact with his son through a court order every weekend and the son was allowed to stay overnight on alternate weekends. One day the appellant and complainant got in to an argument and he allegedly spat in the complainants face and pushed her.

Afterwards, the complainant obtained a non-molestation order which forbid the appellant to intimidate, harass, pester or by any means communicate with her other than by her solicitor. The order was expressed to last until 27th April 2015 or a further order was needed. During this time the appellant contacted the complainant by text.

The Judge decided to acquit the appellant of the charges under means of appeal as he stated that there was no previous history of harassment or conduct so therefore the order should not have been made in the first place. He used the amended version of the Act to state his case which although the text message was seen as a threat, the Act is more so concerned with protecting a person from harassment and the Judge did not believe this was needed.

  • R v suleyman kyriacos colukoglu [2015] EWCA Crim 911

This incident deals with constant threats and harassment contrary to the Protection from Harassment Act 1997.

This incident is following numerous accounts of insults and threats to the complainant. The appellant lived in the flat directly above the complainant and would shout abuse a number of times and threaten to kill her, cut her throat and stab her.

During the hearing it was noted that this was not the first time that the appellants conduct was unacceptable. He had threatened to stab an environmental health officer when asked to turn down his music, made numerous telephone calls which included the threat to kill a police community support officer and was also cautioned for harassment by sending threatening text messages to other neighbours.

The complainant was frightened by the constant threats and it also affected her daughter some of these incidents.

The appellant was no stranger to the courts and committed similar offences over an extended period of time to others.

In this instance, the judge believed that an injunction would not be sufficient as the appellant would probably continue this sort of conduct once back in the building and so a further restraining order was made and a justified sentence imposed of two years concurrent on breach of a restraining order. The restraining order extended to excluding the appellant from the building from where he lived. Although this does seem rather extreme, it was believed that it was appropriate to do so as the appellants conduct has been both serious and continuous and caused others to feel they need to leave their home.

A restraining order was put in place for a term of five years contrary to the Protection from Harassment Act 1997. The appellant pleaded guilty but appealed against the decision of 12 months’ imprisonment. The appeal was allowed and the sentence of 12 months imprisonment was suspended for two years from the date of the sentence.

  • R v Marshall Gwebu [2015] EWCA Crim 938 

This incident of harassment is contrary to section 2 of the protection from harassment act 1997.

This incident happened on a train. The complainant was already on the train when the appellant came and sat next to her. It was alleged that the appellant was drunk. He lent across towards her and only a few inches from her face and asked her name and where she lived. When she said she had been visiting her parents, he accused of her lying and tightly grabbed her left hand with his……. (FIND OUT).

Although the complainant got up and sat somewhere else the appellant followed her and said that “I’m going to find you on the platform”.

The Judge said that it must have been a terrifying incident and that women were entitled to be protected from this sort of behaviour. It was obvious that the complainant was in distress from the events.

The appellant had one previous conviction for criminal damage in 2012 which he had to pay a £70 fine. However, after pleading not guilty the Judge sentenced him to 6 weeks’ imprisonment.

  • R v Nicolaou [2013] All ER (D) 86

The defendant had a number of convictions for assault against the claimant who was once in a relationship together and had two children together. The defendant also had numerous amounts of breaches of restraint and non-molestations orders and so consequently sentenced to five months’ imprisonment.

After release, the harassment continued and incidents such as entering the claimant’s home and stealing her keys, hiding in her loft and removed by the police, forcing his way in to her home and attacking her occurred. All these incidents amounted to harassment contrary to section 5(5) of the Protection from Harassment Act 1997. The defendant was sentenced to six months’ imprisonment for each breach (4 in total) giving him a total of two years’ imprisonment. Although the defendant appeals due to the excessive lengthy prison sentence, the court took all the circumstances in to consideration and believed that it was not manifestly excessive.

  • R v Guminski (Daniel Nathan) [2012] EWCA Crim 42

The appellant had pleaded guilty to breaching a restraining order after harassing his former girlfriend.This case is an appeal of the sentence granted for 18 months’ imprisonment. The appellant breached several injunction orders with sentences getting progressively longer each time. The judge stated that it was justified to sentence the appellant outside of the Sentencing Guidelines Council as this applied to people without convictions. Due to the physical violence and physical and psychological harm to the victim it was appropriate to sentence the appellant to 18 months imprisonment.

An appeal against a restraining order made under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years as he tried to open the plane door whilst in flight causing alarm to other passengers.

The defendant had been charged contrary to section 4 of the Protection from Harassment Act 1997 along with two counts of rape. The charge under the Protection from Harassment Act 1997 was based upon six incidents over a nine-month period which all included an element of violence. Although acquitted of the two counts of rape, he was convicted of harassment due to putting someone in the fear of violence by harassing the individual. However, this judgement was later quashed as it was stated that harassment cannot cover incidents of dispute, even if there has been violence, during a long, close and mainly affectionate relationship.

  • R v Kevin Thomas [2011] EWCA Crim 2340

This case deals with a breach of a restraining order contrary to section 5(5) of the Protection from Harassment 1997.

The appellant was in a relationship with the complainant but begun telephoning, and visiting her house once she ended the relationship. On 13th December 2010 the appellant pleaded guilty to harassment and so a restraining order was put in place which prevented him from communicating further with the complainant, directly or indirectly.

There were numerous accounts of breaching the order which left the complainant in a distressed and frightened state. The appellant would turn up at her house drunk randomly and so on and this type of conduct has resulted in her having to move homes and take medication. Although he pleaded guilty for breach of restraining order he would still continue to harass the complainant.

Although the Judge felt sympathy for the appellant due to his mitigating circumstances such as his wife dying of cancer in 2005, the Judge noted that he had been given several opportunities to amend his behaviour but he continuously breached his order and so sentenced him to 15 months’ imprisonment.

He appealed that this was a rather lengthy sentence as the Sentencing Guidelines Councils definitive guideline in respect of breach of a protective order such as this offence falls within the category of a “single breach involving significant psychological harm to the victim” and indicates should only be 13-26 weeks’ in custody. However this was not accepted by the courts due to the numerous amounts of times the appellant breached the restraining order.

  • R v Hargreaves [2011] EWCA Crim 934

The appellant was convicted of harassment of his female neighbour and was sentenced to 3 months imprisonment suspended for a year after his conviction of a breach of the restraining order.

A restraining order of two years’ was imposed upon the defendant contrary to section 4 of the Protection from Harassment Act 1997 in order to prevent future trouble. The defendant had punched his ex-girlfriend in the face and broke her jaw (the claimant). However the injunction was later quashed as the judge’s sympathies were with the claimant and the procedure he followed at trial denied the defendant the opportunity to make any submissions to the court on the propriety of both the order and its terms.

The court explained that section 5A of the Protection from Harassment Act 1997 is concerned with the future risk of harassment by the individual concerned.

“A court before which a person is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order”.

In the course of their relationship there had been aggression on both sides and it was not possible to say that the 6 incidents over a 9 month period were a course of conduct that could be classed as harassment within the meaning of the Act. The course of conduct of Claimant had to amount to the Oxford definition of harassment. (10th ed).

 

A female in a volatile relationship complained of 6 incidents over a 9 month period. The defendant was convicted but was later quashed on appeal where it was decided that:

“It was necessary for the prosecution to establish that the course of conduct amounted to harassment. Harassment was tormenting a person by subjecting them to constant interference or intimidation. The conduct had to be oppressive, unreasonable and unacceptable campaign to a degree that would be a criminal matter”.

The type of incidents must be connecting and their context. It is insufficient to simply count the amount the number of incidents if they are not connected in type.

  • R v Edmunson [2007] EWCA Crim 382

The appellant had harassed the complainant for a period of 5 years since the age of 13 who was a complete stranger. A permanent restraining order had been imposed on the appellant in 2002. But within a 3 month period he had breached his injunction 8 times. He would send letters, cards and cassette players to the claimant detailing his thoughts and feelings which expressed that he wanted a relationship with her. This conduct made the appellant in constant fear and distress all through her teenage life.

It was held that a prison sentence would not stop the appellant’s course of conduct and unlikely to change his attitudes and so the judge concluded that a maximum sentence was justified in order to protect the claimant for as long as possible.

Defendant pleaded guilty on charges of harassment under section 5 of the Protection from Harassment Act 1997. The claimant and the appellant were both work colleagues. Incidents of harassment begun to happen once they both had a one night stand. Incidents included the appellant signing the claimant up to several gay websites, setting up a website called “A is gay.com”, sending emails to the claimant’s fiancée informing her of his alleged sexual indiscretions. the injunction granted stated that an injunction should be clear, precise, practical and enforceable and proportionate both in its length and terms.

The defendant pleaded two counts of acting in breach of the restraining order imposed upon him in relation to his former partner. The defendant was sentenced to 18 months’ imprisonment in total due to each count contrary to section 5(5) of the Protection from Harassment Act 1997. The defendant appealed against sentence.

The appeal would be allowed.

The sentence would be quashed and a sentence of 12 months’ imprisonment would be imposed instead. The defendants’ conduct required substantial custodial sentence however 18 months’ was manifestly excessive due to the circumstances.

  • R v Vaughan [2004] EWCA Crim 3368 

The defendant appeals his sentence of one year imprisonment believing it was too long. The defendant was convicted of harassment contrary to section 4 of the Protection from Harassment Act 1997. On one occasion the defendant went to the victim’s home and threatened to kill her, in addition to another occasion he continuously telephones the victim and threatened to both kill her and the children and that he was on his way. The police were called another time as the victim pressed a panic button as the defendant threatened to attack the victim after getting in to an argument.

The appeal was allowed and the judge held that the sentence of one year’s imprisonment was too high for circumstances such as the ones in this case. Consequently, the judge sentenced the defendant to 6 months’ imprisonment instead.

  • R v PW [2004] EWCA Crim 1690

The defendant and claimant had been in a relationship together and had a child together (the claimant had another child with another partner). The separated in July 2003 and the defendant moved out of their home. From August there was reoccurring incidents of the defendant turning up at the claimants’ house and being very aggressive, threatened her and even pushed her on one occasion. In addition to this he walked in to the claimants’ home one time and threatened to hang himself and took a knife to stab himself but was stopped and in consequence cut one of the women helping. He was arrested at the scene by the police.

After this incident, the defendant yet again attacked the claimant in front of their child, threatened her and would wait for her at her home while she was out. He pleaded guilty to undertaking a course of conduct which caused another to fear that violence would be used against them contrary to section 4(1) of the Protection from Harassment Act 1997.  He was sentenced to three years’ imprisonment.

The defendant appeals and claimed that the sentence was rather excessive and the appeal was allowed. In the circumstances due to the plea of guilt he made the appropriate total sentence would be two years’ imprisonment instead.

  • R V Wilkes [2004] All ER (D) 393

The defendant was sentenced to 11 months’ imprisonment and a restraining order was imposed contrary to section 4 of the Protection from Harassment Act 1997. The defendant appealed the conviction.

The complainant had been a prostitute and met the defendant who wished to pay for her services. On two occasions the defendant had produced a knife and threatened both the complainant and the third party present. He stated that the complainant had struck him and so he was only acting out of self-defence and another time where the complainant shouted at him to pay for her drugs.

The appeal was allowed on the basis that the judge failed to direct the jury to the statutory defence of the Protection from Harassment Act 1997. There was no framework in which the jury could place the evidence in respect of the defendant’s explanation of his actions. The conviction was quashed.

  • R v Goble [2003]All ER (D) 450

The defendant was sentenced to 2 years’ imprisonment as the judge remarked that he had made his neighbours’ life a misery and that if he was released any sooner he would continue to do so. Accordingly, the sentence was made to deter him from further course of conduct and punish him from doing it in the first place. He was convicted of harassment contrary to section 5 of the Protection from Harassment Act 1997 and granted an injunction which he breached. It was held that due to his past convictions of offences of dishonesty and contempt of court, that the sentence imposed in response to the breach of the injunction was justified as this was an individual who did not obey by the law.

  • R (Simon Howard) v DPP (2001) 

There is great importance when it comes to producing evidence by the victim fearing violence.

  • R v Sutton [2001] All ER (D)

The defendant telephoned the complainant on five occasions and threatened him. He sent funeral brochures to him and made two further telephone calls to the complainants address demanding money. The defendant was charged with harassment contrary to section 4 of the Protection from Harassment Act 1997. Although sentenced to three years’ imprisonment, there was an appeal and the sentence was quashed and a sentence of 12 months’ imprisonment would be substituted.

It was held during the appeal that a judge must consider several points when sentencing a defendant for an offence under the 1997 act

  • Whether the offence was under section 4 or 2 of the act
  • If the defendant has a history for disobeying court orders
  • The seriousness of the offending conduct
  • Whether the defendant had persistently engaged in misconduct
  • The effect of the offence to the victim
  • The mental health of the offender
  • The reaction of the offender to the charges

It was held that the course of conduct has to be a sequence of events in relation  to the Protection from Harassment Act 1998.

A relationship between the defendant and the claimant broke down whilst the claimant was pregnant with their child. Shortly after the separation the defendant broke in to the claimant’s new home and caused damage to it. He made abusive phone calls to her and threatened to kill her. Further damage to the claimant’s home continued and threats which included threats to harm their unborn child too. The defendant was charged for putting an individual in fear of violence contrary to section 4 of the Protection from Harassment Act 1997. The judge directed the jury to look at this as a “campaign deliberately designed to seriously frighten her”. He was consequently sentenced to four years’ imprisonment.

The defendant appealed as it was believed that the judge confused the jury and the earlier conviction were quashed and a re-trial ordered.

The Defendant made a series of silent calls in a 3 month period to 3 different women.

House of Lords decided that stalkers who cause psychological injury to their victims can be prosecuted for the criminal offences of causing actual bodily harm or grievous bodily harm even where they have not physically attacked their victim

The defendant had a brief relationship with a woman and once she ended it she begun to get harassed by her ex.  She would receive silent telephone calls, abusive telephone calls, sending offensive cards to her neighbors and hate mail and also appearing at her house. This amounted to harassment over an 8 month period. It was decided by the courts that due to the severe depressive illness she got from this harassment, psychiatric injury could amount to bodily harm.