R v Evans (Dorothy Gertrude)
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 2004 |
| Neutral Citation | [2004] EWCA Crim 3102 |
| Docket Number | Case No: 2004/03662/B3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 December 2004 |
[2004] EWCA Crim 3102
Lord Justice Dyson
Mr Justice Grigson And
The Recorder Of Manchester
Case No: 2004/03662/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
His Honour Judge Morris
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Davies (instructed by the Crown Prosecution Service) for the Respondent
Mr Huw Evans of Counsel (instructed by Messrs Hodson Parsons James and Vaux) for the Appellant
Lord Justice Dyson(giving the judgment of the court):
Introduction
On the 25 th May 2004 in the Crown Court at Cardiff the appellant was convicted of acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997 ("the 1997 Act"). On the 6 th August, she was sentenced to pay a fine of £1000, or in default to serve 45 days imprisonment. She appeals against conviction by leave of the single judge. Section 5 of the Act, so far as material, provides:
"(1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.
(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which –
amounts to harassment, or
will cause a fear of violence,
prohibit the defendant from doing anything described in the order.
…
(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
(5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence."
The facts
On the 8 th November 1999, the appellant was convicted at the Cwmbran Magistrates' Court of three offences of harassment by threatening her neighbours, and a restraining order was made against her in these terms:
"You shall not:-
be abusive by words or actions towards Miss Margaret Jones, Mr Peter Kenyon, Mr Julian Edwards and their respective families.
enter in any way onto the property of Miss Margaret Jones, Mr Peter Kenyon or Mr Julian Edwards.
Cause any waste material to be deposited on the land of Miss Jones, Mr Kenyon or Mr Edwards."
At all material times, the appellant (who is now 78 years of age) has lived at No. 93 Park Crescent, Abergavenny and Andrea Edwards has lived next door at No. 91. Mrs Edwards has at all material times been the wife of, and lived with, the Mr Edwards referred to in the restraining order.
The indictment contained 6 counts of acting in breach of the restraining order. The appellant was acquitted on counts 3 and 6 at the direction of the judge and acquitted by the jury on counts 2,4 and 5. The facts relevant to count 1 are as follows. On 4 th February 2003, Mr Falconer, a plumber, came to No. 91 to repair Mrs Edwards' washing machine. He parked his van in the street hard up against the rear of Mrs Edwards' car. As soon as he arrived, she became stressed because whenever she had visitors, the appellant would block their cars in with her car. So bad were relations between the neighbours that Mr and Mrs Edwards had fixed a CCTV camera on the outside of their house so that they could view the activities of the appellant. Shortly after the arrival of Mr Falconer, Mrs Edwards started to view the screen. She saw the appellant drive her car (which was already parked in the street) about 10 feet forward so as to be close up against the back of Mr Falconer's van. The result was that his van was totally blocked between the rear of the car of Mrs Edwards and the front of the appellant's car. Mrs Edwards went out to move her own car and drove round the block because she did not want the appellant to know that she had been inconvenienced. She was upset because this type of conduct had happened frequently.
At the close of the prosecution case, Mr Huw Evans submitted on behalf of the appellant that there was no case to answer. His principal submission was that, on a common sense and fair interpretation of the restraining order, parking the car too close to the van of Mr Falconer did not amount to "abusive action". He also submitted that in the circumstances of the case, it was obvious that, even if what the appellant did amounted to "abusive action", she had a reasonable excuse for doing it, and accordingly could not be guilty of the offence. In rejecting this submission, the judge ruled as follows:
"However, in respect of counts one and four I fear that the submission must fail. The argument has been very interesting upon each. Although these are two separate car parking incidents where the same overall conduct is alleged, there are distinctions to be drawn between these two counts. Nonetheless, at the end there seems to me to be ample video and oral evidence, sufficient to raise a prima facie case that here was a lady acting in breach of the Restraining Order without reasonable excuse and where a clear inference arises that she was intending to misuse or illtreat the recipients in each case, Mrs Edwards and Miss Jones, by conduct which it would be open to the Jury, if they see so fit, to regard as abusive in the widest application of that term. Abuse here is not to be confined simply to the utterance of words but also is, as a derivative of the verb "to abuse", capable of including illtreatment or mistreatment. It will be for the Jury to say whether it is fair and proper nowadays to regard such conduct as abusive. They may or they may not but that is their task and not mine.
Thus, in those circumstances, and for those reasons, the submission must fail on count one and count four."
The appellant did not give evidence. Her daughter, Barbara Thomas did give evidence, but she was unable to say anything about the alleged offence since she was not present at the time. She said that she had lived with the appellant for 2 years, and confirmed that relations between the appellant and her neighbours were not good.
In the course of his summing up, the judge directed the jury as to the ingredients of the offence of acting in breach of a restraining order in the following terms:
"In order to establish the offence in respect of any of these four counts the Prosecution must make you sure of four essential elements. First, that the Defendant has committed an act or carried out a piece of conduct which can properly be regarded as abusive. Secondly, that if so, that it was such an act or conduct that was aimed at or was towards, perhaps, the particular named person, being one of the named persons stipulated by the Magistrates as requiring protection from harassment. That is, one of the named persons in the Restraining Order. Thirdly, that if there was an abusive act or conduct and it was conduct towards a named person, then that act or conduct was in breach of the terms of the Restraining Order. The third goes hand in glove with the first and second elements, you may consider. And, fourthly, that, in any event, such act or conduct as was committed by the Defendant was committed by her without any reasonable excuse. You will recall that I told you that Section 5(5) of the governing Act of Parliament contained the expression that if the person named as the subject of the Restraining Order committed any act or conduct without any reasonable excuse which amounted to the terms of the Order, that was an offence. So, it is necessary for the Prosecution to prove that there was no reasonable excuse for any proven act or piece of conduct which may have been abusive and aimed at or towards one of the named persons.
As to what is meant by "abusive" is entirely now for you to say. You represent the standards of right-thinking decent folk nowadays and it is for you to apply what you consider to be the appropriate contemporary meaning in modern day usage of the English language of the term "abusive". Nonetheless, obviously it is derived from the verb "to abuse". That can include, you may think, conduct such as shouting or saying foul language and offensive names at a particular person but, equally, although it is for you to say, you may find that it can also include the physical ill-treatment of a person, for example such as by striking them, or ill-treatment by neglecting them, perhaps, in the case of a child or something of that kind. But, in turn, again, I stress it being entirely for you to say, you may find that in modern parlance it is also capable of including ill-treatment generally of a person or towards a person.
As to what is meant by "towards", again, it is entirely for you to say, applying contemporary meanings of that word but, in the context of a breach of a Restraining Order alleged, you may think that it must mean conduct aimed at, in the sense of towards.
In that context it should be noted that it is not necessary for the Prosecution to establish necessarily, although it depends on your view of the facts, that any such conduct or act was directly aimed at the named person. It would be sufficient if, on the evidence, it was clear to your satisfaction so that you were sure about it, that it was conduct which was aimed ultimately at the named person even though in the first instance it may have affected a third party. Thus, in the case of the car parking count, for example, you may find although it depends upon your construction of the word "towards", that although it may be concluded that the conduct directly affected the tradesman in the first instance, it is...
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