Mark John Smith v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 29 November 2012 |
| Neutral Citation | [2012] EWCA Crim 2566 |
| Docket Number | Case No: 201204062 A8 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 November 2012 |
[2012] EWCA Crim 2566
Lord Justice Toulson
Mr Justice Langstaff
and
His Honour Judge Morris QC (Sitting as a Judge of the Court of Appeal Criminal Divison)
Case No: 201204062 A8
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HHJ McGregor-Johnson
T20111416
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs G Silvo solicitor advocate (instructed by Hine solicitors) for the Appellant
Mr Francis Burak (instructed by the CPS) for the Respondent
Hearing date: 7 November 2012
Introduction
This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 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. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act.
Facts
The prosecution followed a frightening incident aboard a Boeing aircraft on a flight from Mumbai to London Heathrow on 25 September 2011. Mr Smith was a passenger on the flight. During the flight he became very disturbed and upset. He wrenched off the remote controls attached to the seats of two neighbouring passengers. He then moved frantically round the aircraft, saying "I need to get off", and tried to open a back exit door. The doors cannot be opened during flight, but other passengers were not to know that fact and were naturally alarmed. Cabin staff restrained him but he was violent and abusive. He was suspected of being drunk.
Before the trial Mr Smith was examined by psychiatrists on behalf of the prosecution and the defence. He gave the following account. He was on his return with his partner from a holiday in Thailand. In the last 3 days of the holiday he suffered food poisoning with extreme diarrhoea and vomiting. This made him dehydrated. The journey from their resort to Bangkok airport took 17 hours by boat and road, during which he suffered exposure to the sun. At Bangkok airport they had a 2 hour wait before taking a 3 1/2 hour flight to Mumbai.
Mr Smith told the doctors that as the journey progressed he developed feelings of extreme exhaustion, dehydration and sleep deprivation. He also believed that he was suffering from heatstroke. During the process of check-in and boarding at Mumbai he began to have abnormal thoughts. He told his partner that there were terrorists on board who were suicide bombers. His partner told him that he was misinterpreting what he was seeing and tried to calm him down. This was to no avail. Mr Smith became convinced that terrorists were going to detonate bombs by means of the nearby in-seat controls, so he wrenched them from the seats believing that this was necessary to save their lives. When he made his way to the door, he believed that they were still on the ground and that his actions were the only way of saving the aircraft. A voice was telling him that he was 2 feet from the ground.
Both psychiatrists agreed that Mr Smith had been suffering from a psychosis characterised by delusions and hallucinations. The jury accepted that he had been insane within the McNaghten rules and found him not guilty by reason of insanity.
As a result of the jury's verdict the court had power to require Mr Smith to undergo medical treatment, either as a detainee in a mental hospital or in the community, but the judge decided after hearing evidence from the psychiatrists that this was not necessary or appropriate. Instead he ordered an absolute discharge, which was one of the options available to him under s5(2)(c) of the Criminal Procedure (Insanity) Act 1964.
The doctors were agreed that Mr Smith had suffered a brief reactive psychosis, which is an unusual but recognised medical condition. Such a condition generally resolves itself, leaving the individual able to return to full normal function. That appeared to be the case with Mr Smith. He had made a swift recovery and was showing no sign of current mental illness. Since his condition was now normal, he was in no need of medical treatment.
The doctors could not be certain about what had led to the onset of the psychosis, but on Mr Smith's account there had been a combination of unusual circumstances which could have triggered it – the stressful circumstances which preceded the flight, his physical illness, dehydration, exhaustion and the effects of the sun.
In imposing the restraining order the judge referred to the absence of any definite explanation for the psychosis and he continued:
"My concern is that your behaviour on this occasion, no doubt due to the psychosis, was pretty extreme and in any aircraft that would be extremely concerning for anybody around, and I want to make sure that should there be another episode of this, and one very much hopes there won't be, that it's not going to occur in these sort of circumstances. What I am going to do in those circumstances I consider it is necessary to make a restraining order not to travel on any domestic or international commercial airline. I am not going to make it without limit of time because that would be entirely disproportionate in my view. I am going to make it for what I consider to be a sufficient length of time to be satisfied that these problems are not going to recur. I am going to make it for a period of 3 years."
The structure of the Act is that it begins with a general prohibition of harassment: s1. Criminal sanctions for breaching the prohibition are provided by s2. A civil remedy is provided by s3. The Act goes on to provide for preventive orders. Section 5 provides for restraining orders on conviction. Section 5A provides for restraining orders on acquittal. Section 7 is an interpretation section.
Section 1 provides (omitting parts which are immaterial for present purposes):
"(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 or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other."
Section 7 provides:
"(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve —
(a) In the case of conduct in relation to a single person (see section 1(1)) conduct on at least two occasions in relation to that person."
Section 2 makes it a criminal offence for a person to pursue a course of conduct in breach of s1(1).
Section 3 provides that an actual or apprehended breach of s1(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.
Apart from what is in s7, the Act contains no definition of harassment. The lack of a clear definition prompted criticism by commentators at the time of the legislation.
The purpose of the legislation was to provide new criminal and civil remedies for the activity generally described as "stalking". That is apparent from a consultation paper " Stalking – The Solutions: A Consultation Paper", published by the Home Office on 9 July 1996. There had been some well publicised cases of stalking which did not fall easily within any criminal offence or tort. In May 1996 a labour peer, Lord McIntosh, introduced a Bill on stalking into the House of Lords. It did not have government support and it did not progress beyond the House of Lords, but it led the government to publish the consultation paper. The consultation paper stated that the government proposed to deal with the menace of stalking through a combination of civil and criminal measures. It set out the proposed new measures and invited comments. The closing date for comments was 9 September 1996. The government's response to the consultation was set out in a further paper, "Stalking, Harassment and Intimidation and the Protection from Harassment Bill", research paper 96/115, published on 13 December 1996. The Bill was introduced into the House of Commons a few days later and received Royal Assent on 21 March 1997.
The government acknowledged (96/115, page 22) that a number of commentators had expressed concern about the wide range of conduct which could in theory be rendered criminal by virtue of the offences which were to be created by the Bill, and that it could be argued that the Bill lacked sufficient clarity or precision. Its response was that "a narrow definition would encourage determined harassers to find and exploit loopholes". The paper added that in practice "much will depend on the approach adopted by the police and the Crown Prosecution Service in dealing with cases which are reported to them".
The current edition of Smith and Hogan's Criminal Law (2011), page 696, supports the view, expressed in an article written by Celia Wells at the time of the legislation, that the Act follows a...
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