Hale v Tanner

Thursday 20th July 2000

LORD JUSTICE SWINTON THOMAS: Lady Justice Hale will give the first judgment.

LADY JUSTICE HALE: This is an appeal against the order of His Honour Judge Wilson, the Recorder of Oxford, made in the Oxford County Court on 3rd April 2000. He committed the appellant to prison for six months but suspended that committal. As recorded in the order, this was until 3rd October 2000; but as explained in his sentencing remarks, if I may call them that, it was for as long as she complied with the underlying order. This was an order made by His Honour Judge Julian Hall, also in the Oxford County Court, on 21st January 2000. The relevant parts of that order read as follows:

"1. The respondent, Rachel Tanner, is forbidden to intimidate, harass or pester the Applicant, Jamie Hale, or to threaten to use violence against the Applicant, Jamie Hale, whether by herself or by encouraging any other person to do so.

"2. That there [be] a Power of Arrest attached to the above order.

"3. That Paragraphs 1 and 2 shall remain in force until 21st January 2001."

Accordingly, His Honour Judge Wilson stated his intention that the suspension should last until 21st January 2001.

We have not seen any judgment delivered by His Honour Judge Hall and in practice there may have been none. The order records that he had read statements from the applicant, Jamie Hale, dated 17th December 1999 and 21st January 2000. We have not seen the latter but a disturbing history is given in the former. The applicant, Jamie Hale, was the appellant's ex-boyfriend. They had a relationship for some two years and lived together in a rented flat until January 1999. Mr Hale alleged that while they were together, the appellant was often violent towards him, destroyed or stole his belongings, drank heavily, took illegal drugs, had mental health problems, came to the shop where he worked screaming and shouting so that in the end he lost his job. When he ended the relationship, the appellant told him that she was pregnant with his child. At first he doubted whether she was pregnant but she did indeed have a daughter called Paige in July 1999. He also doubted that the child was his.

After they parted, he complained that she bombarded him with phone calls. He had to change his telephone number. He also, very soon thereafter, started a new relationship with Teresa Mahoney. The appellant made threatening phone calls to her and to her work. After the birth of the baby, she visited their home with her sister and the baby and became abusive when they said that they were not interested in speaking to her. She also sent a letter with photographs of the baby.

On 7th September, she made many abusive telephone calls to Teresa Mahoney's mobile phone. There was specific allegation that the appellant phoned her at 17.52 pm and shouted:

"'I'am at Donnington Bridge social club and there is a bloke in here that f**king hates you and Jamie. He is going to f**king kill you both.'"

And a later call:

"'No matter what anyone says or does you f**king bitch, I've got Jamie's kid and he's fucking paying for it in every way."

There were many other phone calls that same day.

On 13th September, it was alleged that the appellant phoned nine or ten times leaving messages containing unpleasant threats. The calls continued sporadically throughout September and into October. Complaints had been made to the police and the police told Mr Hale they were trying to arrest the appellant for harassing Miss Mahoney. There was a quiet week at the end of October when he understood that she had been arrested and charged in relation to Miss Mahoney. The calls started again at about 7th November. There was a visit with the baby and three men to his sister's home. There was also a telephone call asking whether anyone in the family had a heart condition as the baby was in hospital with a heart problem. He had reason to believe that that was untrue but it was upsetting because his father had had heart problems.

In his statement he says that the relationship with Miss Mahoney ended in November because of the strain, although they later did resume their relationship. There were more telephone calls around his birthday in early December. Eventually, therefore, an application for a non-molestation order and a power of arrest, under Part IV of the Family Law Act 1996, was made dated 17th December 1999.

When the matter came before His Honour Judge Hall on 21st January 2000. It is scarcely surprising that he made a non-molestation order upon that evidence. The appellant did not attend the hearing and was not represented at it. However, the order records there was an affidavit of service, proving that the application had been served upon her. The power of arrest, therefore, fell to be considered under section 47(2) of the Family Law Act 1996. This reads:

"If (a) the court makes a relevant order; and (b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, it shall attach a power of arrest to one or more provisions of the order, unless the court is satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest."

The power of arrest made that day records that the court was satisfied that the appellant had used or threatened violence against the applicant. The power of arrest was, however, attached to the whole of the non-molestation order.

I would not wish to criticise that in any way, I would only comment that section 47(2) clearly contemplates that the court has a discretion as to which parts of the order should or should not attract a power of arrest. There is, of course, a presumption in favour of a power of arrest unless the court is satisfied that the applicant will be adequately protected without it. But, clearly, there are distinctions to be drawn between cases where what is prohibited is the direct use of violence, or the face-to-face threat of violence, or the stalking of somebody and the lurking outside their premises; the sorts of conduct which can readily be prevented by a power of arrest and for which such a power may well be appropriate. It is less obvious that distance harassment should necessarily attract a power of arrest in every case.

The evidence presented to the learned judge on this occasion was of prolonged and persistent harassment which had had most unfortunate effects upon the applicant and upon Miss Mahoney.

Thereafter, the order was apparently served. We have not seen an affidavit of service but the applicant, Mr Hale's, witness statement to the police made on 17th February 2000 says that it was served on 6th February 2000.

In that statement, the applicant complained that the appellant had contacted him ten times during the previous week but the worst occasion was on the night of 16th February 2000. He said that the appellant had telephoned his mobile phone and wanted to talk about the baby. He did not wish to talk. They had five telephone conversations and she made a total of 41 telephone calls to his mobile phone over the course of some two hours, until he eventually turned it off. The British Telecom record supports that.

He complained to the police the next day. The appellant was not, however, arrested until 3rd April when a police officer was telephoned by Mr Hale to say that the appellant was at Oxford Magistrates' Court and the case was due to finish. The police officer therefore went to the court and arrested her and she was immediately taken before His Honour Judge Wilson in the county court.

We have been told today, and in my view it is relevant to this appeal, that the proceedings in the Oxford Magistrates' Court were under the Protection from Harassment Act 1997 and related to complaints of harassment of Teresa Mahoney, between the dates of 8th April 1999 and 29th December 1999. Thus, there is some overlap between the subject matter of these proceedings and the subject matter of those Magistrates' Court proceedings. The outcome, we are told, was a restraining order prohibiting the appellant from contacting either Miss Mahoney or Mr Hale.

In the county court, the appellant admitted disobeying the order of 21st January 2000 by telephoning the applicant on 16th February 2000 between the hours of...