Haque v R

A prosecution under section 4(1) of the Protection from Harassment Act 1997 requires proof that the course of conduct amounted to harassment, in addition to the express statutory elements. Harassment requires conduct targeted at an individual, calculated to alarm or distress, and oppressive. The prosecution need not separately prove that the conduct was unreasonable, because reasonableness is a statutory defence for the defendant to establish.

Where a jury has found repeated fear of violence and the requisite knowledge, a failure expressly to direct on the additional harassment requirement will not render a conviction unsafe if the jury would inevitably have found the omitted elements.

The appellant was convicted at Snaresbrook Crown Court on 25 May 2010 of putting his older brother in fear of violence, contrary to section 4(1) of the Protection from Harassment Act 1997. The prosecution relied on threatening letters, emails and messages sent after a family dispute about the care of their disabled sister in Bangladesh.

The appellant denied that his brother feared violence. He contended that his conduct was reasonable because it sought to protect his sister. On appeal, he argued that the particulars and jury directions were defective because they did not require the prosecution to prove harassment, as required by Curtis [2010] EWCA Crim 123. He also sought to adduce fresh evidence and challenged the fairness of the summing-up.

1. Appeal dismissed. Leave was granted on the ground concerning Curtis [2010] EWCA Crim 123, but that ground failed. Leave was refused on the fresh-evidence and summing-up grounds.

2. The Court held that it was bound by Curtis and Widdows [2011] EWCA Crim 1500. Accordingly, a section 4(1) prosecution required proof that the relevant course of conduct amounted to harassment, despite the absence of that word from section 4 itself.

3. Following the requirements stated in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, the conduct had to be targeted at an individual, calculated to produce the consequences in section 7, and oppressive. The conduct here was plainly targeted at the complainant. Given the jury's findings and the appellant's asserted objective, it was inconceivable that the jury would not also have found that he intended to alarm or distress the complainant. The violent threats were oppressive.

4. The prosecution did not have to prove unreasonableness as a further element. Under section 1(3) of the Protection from Harassment Act 1997, the defendant had to show that the course of conduct was reasonable. Alleged provocation had no separate relevance beyond possible relevance to causation and the statutory defence.

5. The proposed fresh evidence could and should have been adduced at trial, lacked a reasonable explanation for its absence, and was not centrally significant. The summing-up, read as a whole, was fair and balanced. The judge's occasional use of “sure” when explaining the balance-of-probabilities defence could not have made the conviction unsafe.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 1871, the Court dismissed the appeal after granting leave on the statutory-construction ground, and refused leave on the remaining grounds.
• Crown Court at Snaresbrook: The appellant was convicted on 25 May 2010 of an offence under section 4(1) of the Protection from Harassment Act 1997.