Buckley & Anor v Director of Public Prosecutions

For the purposes of the Protection from Harassment Act 1997, a course of conduct may comprise several distinct episodes occurring on the same day, even where they follow one another closely. The inquiry is not a purely mathematical exercise. The court must decide whether the conduct was sufficiently distinct and repetitious to amount to a statutory course of conduct. Temporal proximity is relevant but not decisive. A trial court may characterise the incidents differently from the prosecution’s opening case where the defendant has suffered no procedural prejudice, including because the evidence was fully explored and any necessary further questioning could have been sought.

The appellants were convicted by a Deputy District Judge at Harwich Magistrates’ Court of harassment contrary to section 2 of the Protection from Harassment Act 1997. The charges alleged courses of conduct involving incidents on different dates. The Deputy District Judge instead held that the events of 15 November 2005 themselves comprised several occasions, including conduct at a cemetery, spitting at the complainants’ car, following the car, and further conduct in a public-house car park.

By case stated, the appellants challenged whether those events could constitute conduct on at least two occasions under section 7 and argued that the recharacterisation of the prosecution case caused prejudice. The central issues were whether the events were capable of being separated into distinct occasions and whether the procedural change was unfair.

1. The appeal was dismissed. The answers to both questions posed by the Deputy District Judge were no.

2. Mr Justice Cooke, giving the first judgment, held that the events of 15 November 2005 were capable of constituting conduct on two or three occasions. The cemetery conduct, the spitting as the car left, the decision to follow the car, the intimidating driving, and the further conduct in the public-house car park were capable of being viewed as distinct episodes. The fact that they occurred consecutively did not prevent them from amounting to separate occasions.

3. The statutory inquiry was not a mechanical calculation of the number of acts. The court had to consider whether the conduct was sufficiently distinct and repetitious to amount to a course of conduct. The short interval between incidents was a factor, but did not determine the issue. The reasoning in Kelly v Director of Public Prosecutions [2002] EWHC 1428 (Admin) supported that approach, as did the cautionary observations in Pratt v Director of Public Prosecutions [2001] EWHC Admin 483.

4. The Deputy District Judge had asked himself the correct question. His conclusion was not irrational or perverse and was one which a properly directed magistrate could reach.

5. No procedural prejudice arose from the change in characterisation. The appellants had cross-examined the prosecution witnesses fully on the relevant events and their cases were apparently alibis covering 15 November. If further questions had been necessary, the witnesses could have been recalled. The convictions therefore stood. The court made no order for costs.

• High Court (Administrative Court): The appeal by way of case stated from the convictions at Harwich Magistrates’ Court was dismissed. The court answered both questions posed by the Deputy District Judge in the negative.