R v Secretary of State for the Home Department, ex parte Isiko and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE SCHIEMANN
Judgment Date22 January 2001
Judgment citation (vLex)[2000] EWCA Civ J1220-20
Docket NumberCase No: C/2000/2937
Date22 January 2001

QUEEN'S BENCH DIVISIONAL COURT

Before Lord Woolf, Lord Chief Justice, and Mr Justice Newman

R
and
Director of Public Prosecutions

Protection from harassment - inferring threatening conduct from actions

Inferring threatening conduct from actions

It had not been Parliament's intention, when providing protection to victims of threatening conduct, to legislate for specific circumstances which fell within or without the offence of putting a person in fear of violence.

Whether the conduct of a defendant had given cause to another to fear that violence would be used against him was a question of fact to be established in each case.

Words or conduct ostensibly directed to something or someone other than the person it was alleged was caused to be put in fear of violence did not, because so directed, fall outside conduct which could support a conviction.

On a prosecution for putting a person in fear of violence, the alleged victim should, wherever possible, give direct evidence as to the effect caused by the incidents relied upon.

The Queen's Bench Divisional Court so held in dismissing an appeal by way of case stated by R, aged 17, against his conviction by Mr Jonathan Charles, an acting stipendiary magistrate sitting at Chester Magistrates Court on June 1, 2000, of an offence contrary to section 4 of the Protection from Harassment Act 1997 for which he was sentenced to a four-month detention and training order.

Section 4 of the 1997 Act provides: "(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions."

Section 7 provides: "(3) A 'course of conduct' must involve conduct on at least two occasions."

Mr Simon Parry for R; Mr Brendan Anderson, who did not appear below, for the Crown.

MR JUSTICE NEWMAN said that for a person to be convicted of an offence under section 4 of the 1997 Act, it had to be established to the criminal standard of proof that his course of conduct had involved at least two occasions, on each of which the other person had been caused to fear that violence would be used against him.

It was also necessary to establish that the defendant knew or ought to have known that his conduct would cause the other so to fear on each occasion.

The court was not limited to a consideration of those two occasions. It was required to have regard to the course of conduct and any evidence relevant to establishing it.

The information in the present case had alleged that R had committed an offence between October 23, 1998 and July 2, 1999. The facts could be taken from the case stated:

1 In October 1998 the complainant's family moved to a house in Ellesmere Port. All members of the family were physically disadvantaged.

2 The complainant gave evidence that she and members of her family were subjected to a catalogue of abuse, interspersed with comments amounting to threats. That abuse came from their neighbours and from R who visited their neighbours' house and contributed to the general abuse.

3 The complainant referred to two specific incidents:

(i) an incident when she was returning home and R had a knife and said, "I'm going to slash your … throat"; and (ii) an incident in which R said to her that he would "blow the … dogs' brains out".

The magistrate convicted R because he concluded:

(i) the two incidents amounted to a course of conduct within the meaning of section 4; (ii) the incidents took place in the manner described by the complainant; and (iii) the inevitable inference from the complainant's demeanour in court was that she lived in fear of the residents and visitors to her neighbours' house.

The complainant was not asked whether she had been caused to fear violence to herself on the occasion when R had made threats to "blow the … dogs' brains out".

She had been asked about the occasion when she was threatened with the knife and she gave evidence that she was put in fear of violence to herself on that occasion.

Three questions had been posed for the opinion of the High Court:

1 Whether the threat directed at the dogs in the presence of the complainant was capable of amounting to conduct for the purposes of section 4.

2 Whether the magistrate was correct in drawing an inference that the complainant would fear violence without direct evidence from her that she did so fear.

3 Whether general abuse combined with the two other incidents amounted to sufficient evidence to convict R.

In his Lordship's judgment, whether or not the conduct of a person had given cause to another to fear that violence would be used against him or her was a question of fact to be established in each case.

Words or conduct ostensibly directed to something or someone other than the person it was alleged was caused to be put in fear of violence did not, because so directed, fall outside conduct which could support a conviction. Each case depended upon its own circumstances.

Where the conduct complained about was, arguably, so far removed from any circumstances in which, objectively considered, a fear of violence could be caused, then it would raise an issue as to whether the prosecution could establish that the defendant knew or ought to have known that his conduct would cause the other so to fear.

In his Lordship's judgment, it had not been the intention of Parliament, when providing protection to victims of threatening conduct, to legislate for specific circumstances which fell within or without the section.

A variety of means of making threats of violence to another could be, and frequently were, adopted during a course of conduct falling within the Act. Consideration of whether or not particular threats were capable of falling within the section was not the question, save as his Lordship had attempted to set out.

Thus his Lordship would limit his answer to the first question by stating that the threats directed at the dogs in the presence of the complainant were not, because they were threats directed at the dogs and not at the complainant, outwith conduct contemplated by the Act as capable of founding a conviction.

His Lordship turned, therefore, to the second question. In the absence of direct evidence from the complainant in connection with the occasion concerning the dogs, could the conviction stand?

The magistrate had to have been satisfied so that he was sure that on the two specific occasions relied upon the complainant was caused to be in fear of violence to herself.

In his Lordship's judgment, the evidence of abuse and the threat with the knife entitled the magistrate to infer that the complainant lived in fear from the people at her neighbours' house, including R, and that at the time he threatened the dogs, having regard to her state of fear, on that occasion, and by reason of what was said on that occasion, she was caused to fear violence to herself.

His Lordship could see no difficulty in the threats which were made to the dogs, against the background of the preceding conduct, entitling the magistrate so to conclude.

Thus, turning to the third question, the magistrate was entitled to convict R by reason of the general abuse combined with the two other incidents because it amounted to sufficient evidence for the purposes of the section.

Plainly, where prosecutions proceeded pursuant to section 4, it was of first importance, having regard to the requirements of the section, that so far as possible there should be direct evidence from the victim as to the effect which was caused by the two incidents or more which were relied upon.

However, the failure to ask in connection with the incident involving the dogs was not fatal to the sustainment of R's conviction.

The Lord Chief Justice gave a concurring judgment.

[2000] EWCA Civ J1220-20

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HON. MR. JUSTICE HIDDEN

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Schiemann

Lord Justice Tuckey and

Sir Swinton Thomas

Case No: C/2000/2937

R
Appellant
and
The Secretary Of State For The Home Department
Respondent
Ex Parte
(1) Peter Isiko
(2) Susan & Shemy Isiko

JOHN HOWELL Q.C. and ROBIN TAM (instructed by The Treasury Solicitor, London,SW1H 9JS) for the Appellant

IAN MacDONALD Q.C. and RASIB GHAFFAR (instructed by Rees WoodTerry,Cardif of 103DB) for the Respondent

LORD JUSTICE SCHIEMANN

This is the judgment of the Court.

Introduction

1

The appeal raises issues under Article 8 of the European Convention on Human Rights, Paragraph 8 of the Secretary of State for the Home Department's policy guidelines on deportation and removal known as DP 3/96, and the correct approach of Courts to a challenge made to an administrative decision when a Convention right is engaged. Since this judgment was in draft another division of this court (The Master of the Rolls, May and Laws LJJ) has pronounced on many of the questions which were argued in front of us � R (on the application of Mahmood) v Secretary of State for the Home Department [2000] All ER (D) 2191. The judgments in that case broadly accord with the conclusions which we had reached before we saw them.

2

The Respondents to this appeal, Peter Isiko and Susan Isiko applied for orders of certiorari to quash decisions made by the Secretary of State to remove them from this country dated the 9th November, 1999, and the 7th January 2000, respectively. On the 11th August 2000 Hidden J quashed both decisions. The Secretary of State appeals against those Orders.

3

The family, marital and immigration history of the Respondents can be...

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