Director of Public Prosecutions v Baker

A course of conduct offence may continue until the final incident relied on, so evidence of earlier incidents may be admissible where at least one relevant incident occurred within the statutory limitation period. Earlier incidents may also be admitted as background evidence where they are necessary to make the alleged offence intelligible or assist in assessing identity, intention, coincidence and the complainant’s response. Their admission remains subject to fairness, including section 78 Police and Criminal Evidence Act 1984.

The Director of Public Prosecutions appealed by way of Case Stated from the respondent’s acquittal by Tynedale Magistrates’ Court of an offence under the Protection from Harassment Act 1997. The alleged course of conduct extended from June 2000 to February 2003. The justices ruled that evidence before 10 October 2002 was inadmissible under section 127 Magistrates' Court Act 1980. The central issue was whether earlier incidents could be considered when determining whether a course of conduct amounting to harassment had been proved.

1. Appeal allowed on the stated question. The justices were wrong to exclude evidence of incidents before 10 October 2002. The court answered the amended question in the negative, but made no order for a rehearing.
2. The alleged offence was capable of being a continuous or continuing offence. Applying Hodgetts v Chiltern District Council [1983] 2 AC 120, an offence may occur continuously or intermittently over a period. As charged, the course of conduct continued until the last incident in February 2003. Because that incident fell within six months of the information, section 127 Magistrates' Court Act 1980 was not infringed. Earlier incidents could therefore form part of the course of conduct.
3. The reasoning was consistent with Sai Lau v Director of Public Prosecutions (Transcript, 22 February 1999) and Bishop v The Uxbridge Magistrates' Court [2001] EWHC Admin 104.
4. Independently, the earlier incidents were admissible as background evidence. The court applied the approach in R v Williams (C.I.) 84 Cr App R 299, approving the formulation in R v Pettman (2 May 1985), and the reasoning in R v Sawoniuk [2000] 2 Cr App R 220. The history was relevant to coincidence, identity, authorship, telephone calls and intention to cause distress.
5. No potential unfairness had been identified. The evidence should have been admitted, subject to any fairness argument under section 78 Police and Criminal Evidence Act 1984 or otherwise. The case was not remitted for rehearing.

• Tynedale Magistrates’ Court: acquitted the respondent and ruled that evidence before 10 October 2002 was inadmissible.
• High Court (Administrative Court): held that the earlier evidence should not have been excluded, but declined to remit the case for rehearing.