Harassment - Fear of violence - Judge failing to direct jury

R v Widdows: Court of Appeal, Criminal Division (Lord Justice Pill, Mr Justice Bean, Mrs Justice Macur): 21 June 2011

The defendant and the complainant, S, had been involved in a volatile relationship and lived together.

During the relationship there were incidents of violence and periods of reconciliation.

The couple separated on many occasions but reunited after a few hours or days.

The defendant was charged with putting a person in fear of violence by harassment, contrary to section 4 of the Protection from Harassment Act 1977 (count one), and two counts of rape (counts two and three).

Count one was based on six incidents between January 2009 and March 2010.

In his summing up, the judge did not direct the jury as to the requirements of the section 4 offence, namely the need for a course of conduct which amounted to harassment.

The defendant was convicted on count one.

He was sentenced to 20 weeks’ imprisonment, suspended for two years, and made the subject of a supervision order for two years and other ancillary orders. He appealed against conviction.

He submitted that the summing up was defective, particularly in failing to direct the jury as to the requirements of the section 4 offence, namely the need for a course of conduct which amounted to harassment.

Consideration was given to R v Curtis (Curtis)[2010] 3 All ER 849.

He further submitted that prosecution under section 4 was misconceived in that the section was not intended to cover incidents of dispute, even if leading to violence, during a long, close and mainly affectionate relationship which was sought by both parties.

Furthermore, it was inappropriate and prejudicial to the defence to join a section 4 charge with two charges of the very serious offence of rape.

The appeal would be allowed.

Although the word ‘harassment’ was not used in section 4, the concept of harassment was at the core of the act and had to be borne in mind by the prosecutor, when bringing a charge under section 4, and the judge in summing up the case.

It was settled law that it had to be established that the course of conduct was conduct amounting to harassment as defined in the authorities, and that harassment included alarming the person or causing the person distress.

Section 4 of the act was not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in a long and predominantly affectionate relationship in which both parties persisted and wanted to continue (see [26]-[29] of the judgment).

The present case was indistinguishable from Curtis.

Further direction was required as to what could be a course of conduct amounting to harassment.

Description of a number of acts of violence spread over nine months during a close and affectionate relationship did not satisfy the course of conduct requirement or the requirement that it was conduct amounting to harassment.

It was not appropriate to join the count under section 4 with allegations of rape.

One set of allegations should have been considered without the distraction of the other, especially in circumstances in which a harassment count was in any event inappropriate.

Given the circumstances, the presence of the rape counts, and the lack of a sufficient direction in the summing up, the conviction could not be regarded as safe (see [29]-[32] of the judgment).

The conviction would be quashed (see [32] of the judgment).

R v Curtis [2010] 3 All ER 849 applied.

John Farmer (instructed by Fisher Cowe) for the defendant; Lindsay Cox (instructed by the Crown Prosecution service) for the defendant.