Sahin, R v

For harassment, a jury should be directed to decide whether the incidents it finds proved are sufficiently connected in type and context to amount to a course of conduct. The need for that direction is especially acute where few incidents are alleged or they are widely separated. Its omission does not automatically make a conviction unsafe; safety depends on the facts and the summing-up as a whole.

For intimidation under section 51(1) of the Criminal Justice and Public Order Act 1994, the prosecution must prove an investigation was under way and that the defendant knew or believed it was under way. A report to police alone is insufficient. A substitution under section 3 of the Criminal Law Act 1967 is available only for an offence the jury could have convicted of on the indictment.

The appellant was tried at Snaresbrook Crown Court for putting his separated wife in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997, and for intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994.

The jury convicted him of the alternative offence of harassment under section 2(1) of the 1997 Act and of intimidation. He received consecutive sentences totalling 16 months' imprisonment, together with a restraining order.

He appealed against conviction. The issues were whether the harassment direction adequately explained a course of conduct, and whether the evidence and directions established the elements of intimidation relating to an existing criminal investigation and his knowledge or belief of it.

1. The appeal was allowed in part. The conviction for harassment was safe and the appeal against it was dismissed. The conviction for intimidation was quashed. The consecutive 12-month sentence for intimidation therefore fell away. The restraining order under section 5 of the Protection from Harassment Act 1997 remained in force.

2. On harassment, the court endorsed the guidance in Lau v DPP [2001] 1 FLR 799, Pratt v DPP [2001] EWHC Admin 483 and Ninin Patel [2004] EWCA Crim 3284. In every jury direction, the better practice is to ask whether the incidents proved are sufficiently connected in type and context to justify their characterisation as a course of conduct. A direction merely requiring two incidents is deficient where the jury may have reduced the case to a small number of incidents.

3. The omission did not render this conviction unsafe. There were four alleged incidents within three weeks, three within six days. The circumstances that call for particular caution, namely few and widely spaced incidents, were absent. The acquittal of the graver offence did not show that the jury necessarily rejected sufficient evidence of harassment.

4. For intimidation, section 51(1) of the Criminal Justice and Public Order Act 1994 required proof of an investigation under way and of the appellant's knowledge or belief both of that investigation and of the complainant's relevant role. Following Singh [1999] Crim LR 681, a police report was not enough. There was no evidence of a commenced investigation of which the appellant was aware, and the judge did not identify the offence or give the jury the necessary assistance on that issue. The statutory presumption could not cure that deficiency.

5. The court could not substitute the civil-proceedings offence under section 39 of the Criminal Justice and Police Act 2001. Section 3 of the Criminal Law Act 1967 permits substitution only for an offence of which the jury could have convicted on the indictment. An indictment alleging intimidation connected with criminal proceedings could not found a conviction for the distinct civil-proceedings offence.

• Court of Appeal (Criminal Division): Appeal against conviction allowed in part. The court upheld the conviction under section 2(1) of the Protection from Harassment Act 1997 and quashed the conviction under section 51(1) of the Criminal Justice and Public Order Act 1994.
• Crown Court at Snaresbrook: The appellant was convicted of harassment as an alternative to the section 4(1) charge and of intimidation. Consecutive sentences totalled 16 months, and a restraining order was made.