DPP v Joseph Dominic Dziurzynski
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE GIBBS |
| Judgment Date | 28 June 2002 |
| Neutral Citation | [2002] EWHC 1380 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/5105/01 |
| Date | 28 June 2002 |
[2002] EWHC 1380 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Rose and
Mr Justice Gibbs
NO: CO/5105/01
MR D W HATTON QC and MR SAMPSON (instructed by CPS Hull, Humberside Area, King William Hse, Market Place, Kingston upon Hull HU1 1RS) appeared on behalf of the Claimant
LORD GIFFORD QC and MR J CHIPPERFIELD (instructed by Kiernan Clarke Sols, 36 Clarence Road, Chesterfield S40 1XB) appeared on behalf of the Defendant
The Director of Public Prosecutions appeals by way of case stated against a decision of District Judge (Magistrates' Court) John Foster, at Kingston upon Hull on 19th December 2000. The respondent, who had originally been charged with offences contrary to section 5 of the Public Order Act 1986, was charged in these terms:
"Between 22 June and 20 July 2000 at Grimston in East Yorkshire pursued a course of conduct which amounted to the harassment of the employees of B&K Universal Group Ltd and which you knew or ought to have known amounted to the harassment of him in that on 23 June 2000 you were abusive towards B&K Universal Group Ltd employees and filmed them and their vehicles going in and out of the said premises, and on 19 July 2000 you were further abusive towards the said employees. Contrary to s2(1) and (2) of the Protection from Harassment Act 1997."
Following a two-and-a-half day trial the District Judge upheld a submission that there was no case to answer.
The facts, so far as they are presently relevant, can be briefly identified. The allegation by the prosecution was that on the two separate occasions identified in the charge, the respondent had been outside the premises of B&K in Grimston and had so acted, by the use of a camera pointed in the direction of B&K employees entering the site, and by making remarks to those employees of an allegedly abusive kind, as to give rise to an offence contrary to section 2. It was not in dispute that the defendant was present at the site on both dates, had a camera and shouted at people entering the premises, or at people working within B&K's grounds. It was not disputed that the defendant was an animal rights protestor who had been present on many occasions in the vicinity of that site conducting protests. It was not disputed that none of the prosecution witnesses had been present on both dates on which the prosecution alleged the course of conduct amounting to harassment occurred. It was not disputed that many of B&K's employees were not present on either of those two occasions.
The overview of the evidence, as the case stated described it, referred to a number of B&K employees arriving at the premises on 23rd June and being shouted at by the respondent and others, and the respondent holding the camera, although it seems it did not contain any film. The staff concerned reacted in a variety of ways: some felt threatened, frightened or very upset; some smiled sweetly and waved; some felt annoyed, and some were not bothered by this "annoying little person".
On 19th July the respondent and others were close to the perimeter fence. On that occasion the respondent, using a megaphone, shouted abusive and threatening remarks which were heard by a number of the prosecution witnesses who were in B&K's grounds. One of those witnesses gave no description of the effect of that on him; one said she was not very happy; one said he thought he was being shouted at and went inside where he could not hear the shouting, and one said he felt he was being personally abused.
A submission was made at the close of the prosecution case that the charge was defective because it did not identify the individual complainants and was bad for duplicity. Furthermore, it was said there was no case to answer, even if the prosecution case were taken at its highest. The response of the prosecution was that there was no requirement in the Protection from Harassment Act to name the object of the alleged harassment, and that B&K's employees were, within the terms of the authorities to which I shall come, a close knit, easily definable group, in that they were all employees of the company at a single, geographically—isolated location. There was a case to answer because the behaviour was directed at the employees of a company whose practices the defendant had demonstrated he abhorred.
The District Judge found, as appears in paragraph 9 of the case stated, that the defendant had used abusive and threatening words and behaviour towards the prosecution witnesses on both dates. He had also used the camera in a manner suggesting that he was filming those people. He found also that that behaviour amounted to a course of conduct. He also found that it caused a mixture of reactions, varying from complete disdain to genuine fear. Some witnesses had felt the abuse was aimed at them personally and others felt it was aimed at them because they were employed by B&K.
He concluded that the charge was defective in that it was bad for duplicity; the defendant should know the case that he had to meet and this charge laid an unknown number of offences in one charge and never identified the complainants. He held that the description "employees of B&K Ltd" was too vague, and the prosecution did not seek to enlighten the court as to whether it was meant to include security guards or employees on long-term sickness absence or suspension, or employees not based at that site permanently or from time to time. He said that, in consequence, the defendant could not be sure who it was who was encompassed by the description "employees of B&K". He apparently accepted that B&K employed around 60 people at those premises at any one time.
He then went on to refer to DPP v Dunn, to which I shall come, and he concluded that, in the case before him, unfairness arose by the naming of the complainant employees of B&K because the defendant could not know precisely who was covered by that term, and no complainants had been present at both incidents; some had not been present at either, and there was no evidence that those not present had been aware of what was going on. He said it would not have been possible on conviction to give effect to a meaningful restraining order.
He concluded that the absence of named complainants would, prima facie, amount to a defect in the charge and, as I have said, he found that there was no case to answer. The explanation for that, which he gives in 10F of the case stated, although he did not recite this in court at the time, was that, while there was a course of conduct, there was no evidence that the conduct complained of alarmed or distressed the complainants, who were never identified with sufficient clarity as an entire group. The evidence showed some of the employees were not alarmed or distressed, and some others did not comment as to whether or not they were alarmed or distressed.
In the light of those matters, the District Judge posed three questions for the High Court to consider:
"1. Whether the wording of the said Section 2 charge alleging a course of conduct amounting to harassment of 'the employees of B&K' was bad for duplicity?
2. Whether the said employees of B&K constitute a close knit definable group?
3. Whether I erred in law in finding that there was no case to answer on the evidence adduced by the prosecution in this case?"
It is, to my mind, convenient to take the third of those questions first, and to consider whether, if the charge was properly laid, the District Judge was entitled to conclude that there was no case to answer.
In my judgment, he was so entitled. The evidence before him was, as I have said, that only some of the employees were present on each of the occasions and, of those present, only some gave evidence. In the words of Lord Gifford QC's skeleton argument, on behalf of the respondents:
"Of those who gave evidence, only some were distressed. No single employee was the target of a 'course of conduct', since none was present on both occasions. The evidence fell far short of proof of the charge laid."
I accept that submission. The District Judge was entitled to conclude that, if the charge was properly laid, there was no case to answer. In a sense, that is sufficient to deal with this appeal. But, in deference to the arguments which have been addressed to the court on other matters, I move on.
The Protection from Harassments Act 1997 is:
"An Act to make provision for protecting persons from harassment and similar conduct."
The provisions relate in the first part to England and Wales and in the second part to Scotland. There are further provisions in relation to Northern Ireland, to which it is unnecessary to refer. Section 1 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 the other."
Section 2 provides:
"(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence."
Subsection (2) of that section makes it a summary offence, punishable with a term not exceeding six months, and/or a fine not exceeding level 5. Section 3, which is headed "Civil remedy", provides:
"(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question."
Provision is made for damages to be awarded.
Section 4, which is headed "Putting people in fear of violence",...
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