R v Sean Peter Colohan
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HUGHES,LORD JUSTICE KENNEDY |
| Judgment Date | 17 May 2001 |
| Neutral Citation | [2001] EWCA Crim 1251 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200004512/Z2 |
| Date | 17 May 2001 |
[2001] EWCA Crim 1251
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Kennedy
(Vice President of the Queen's Bench Division)
Mr Justice Curtis and
Mr Justice Hughes
No: 200004512/Z2
MR J BUTTERFIELD appeared on behalf of the Appellant
MR M F PARKES appeared on behalf of the Crown
th May 2001
On 21st July 2000 in the Crown Court at Stafford the appellant was convicted of one count of harassment contrary to sections 1 and 2 of the Protection from Harassment Act 1997. He was in due course conditionally discharged and made the subject of a restraining order. His appeal raises the question whether the schizophrenia from which he admittedly suffered has the effect of taking his conduct out of the Act.
It was common ground that the appellant had written a number of letters to his local Member of Parliament. They were written, or at least dispatched, on a number of different occasions, at least two. Accordingly there was a course of conduct for the purposes of section 7(3) of the Act. The letters were rambling and in many places incoherent. They demonstrated an obsessive concern about a number of real or imaginary local issues. They also, however, contained a measure of abuse and some material capable of being construed as threats of violence and/or death directed to the Member of Parliament to whom they were sent.
The recipient gave evidence that he felt threatened by the letters, notwithstanding his public position and the exposure to the attention of many different kinds of people which necessarily goes with it. He further gave evidence that the letters had induced nightmares and that he had had to alter the lifestyle of both himself and his young family in case some attack upon them should occur.
The jury was correctly directed in accordance with section 7(3) that harassment included alarming or distressing the victim, and the question of whether the letters had that effect (which was put in issue) was properly left to them. There is realistically no challenge now to the jury's decision that they did. Accordingly, we must proceed upon that basis of fact.
The appellant did not answer questions when interviewed by the police, nor did he give evidence. In due course the learned trial judge, having heard the medical evidence to which we are about to refer, directed the jury that no inference adverse to the appellant could be drawn from his silence on either occasion.
The appellant called a consultant forensic psychiatric, Dr Reid. Her evidence, which was unchallenged, was that the appellant was at all material times suffering from schizophrenia with familiar symptoms of disordered and obsessive thoughts, delusions and a belief in conspiracies to achieve objects to which he objected. The doctor gave evidence that the letters were the product of his schizophrenia, that because of his illness he believed unshakably the things that he said in the letters and that he would have felt compelled to write them. Moreover, she said that if he felt that his earlier letters were being ignored that would have made the disordered beliefs worse.
The offence of harassment is created by section 2(1) which reads:
"A person who pursues a course of conduct in breach of section 1 is guilty of an offence."
That takes one to section 1 which reads:
"(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 harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows —
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
The Act contains no definition of harassment but there are a number of provisions which bear upon the constituents of the offence. The first is section 7(3) which, as we have already indicated, provides that for there to be a course of conduct the conduct must have occurred on at least two occasions. The second is section 7(2) which provides that references to harassing a person include, but it would seem are not confined to, alarming that person or causing him distress. Thirdly, section 1(3) takes out of the concept of harassment conduct of the kind there referred to, providing the person who pursued it demonstrates that he is within one of the exceptions. Fourthly, and most importantly for the present case, is section 1(1)(b) which, read with subsection 1(2), imposes the requirement that the course of conduct must be one which the defendant knows or ought to know amounts to harassment and that the test of whether he ought to know it or not is whether a reasonable person in possession of the same information would think that it did amount to harassment.
Mr Butterfield's principal short submission on behalf of the appellant is that in order to apply this test the hypothetical reasonable person referred to in section 1(2) must be endowed with the relevant characteristics of the accused and in particular with any recognisable mental disorder to which he is subject. In the present case the consequence of that submission, if correct, is that the appellant is to be judged by the standards of the hypothetical reasonable schizophrenic.
Mr Butterfield's associated secondary submission is that the jury ought to have been directed that it was open to them when considering the defence provided by subsection (1)(3)(c) to say that the appellant's conduct was, in the particular circumstances of his illness, a reasonable one. Any construction other than that, says Mr Butterfield, is simply unfair to an accused with a recognisable mental illness.
The judge ruled against those submissions, ruling shortly that the mental illness in question was not a defence.
Mr Butterfield repeats the submissions persuasively and succinctly here. He relies for support upon the rules relating to provocation and duress. He submits that the law of provocation expressly contemplates what he refers to...
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