Smith v R.

A restraining order under section 5A of the Protection from Harassment Act 1997 must protect an identified person or identifiable group. Protection of the public at large is insufficient. The court must also be satisfied that the defendant is likely intentionally to pursue a course of conduct amounting to harassment. Harassment is not established merely because conduct causes alarm or distress. It involves persistent, seriously oppressive conduct targeted at an individual and causing fear or distress. The statutory requirement that an order be necessary has full force. It cannot justify a prohibition on otherwise lawful conduct solely to guard against a possible recurrence of mental illness.

The appellant was acquitted by reason of insanity of criminal damage and of interfering with an aircraft crew after he became psychotic during a flight and attempted to open an aircraft door. The psychiatrists considered that he had suffered a brief reactive psychosis, from which he had made a rapid and apparently full recovery.

The Crown Court made an absolute discharge under section 5(2)(c) of the Criminal Procedure (Insanity) Act 1964. It nevertheless imposed a three-year restraining order under section 5A of the Protection from Harassment Act 1997, prohibiting him from travelling on any commercial airline. He appealed against that order. The central issue was whether section 5A empowered an order of that breadth in the circumstances.

1. Appeal allowed. The restraining order was quashed. It imposed an unlawful and unjustifiable restriction on the appellant’s ordinary freedom of movement.

2. Section 5A of the Protection from Harassment Act 1997 permits an order only where it is necessary to protect a person from harassment by an acquitted defendant. Although section 5A does not reproduce the wording of section 5(2), the protected person, or an identifiable group of protected persons, must be identified. That requirement reflects both the statutory purpose and the rights of persons named in an order to participate in a later application to vary or discharge it. An order protecting all future airline passengers was, in substance, an order for the protection of the world at large.

3. The court must first find a likelihood that the defendant will intentionally pursue a course of conduct amounting to harassment within section 1. Applying the approach in Thomas v News Group Newspapers [2001] EWCA Civ 1233, alarm or distress alone does not constitute harassment. Harassment essentially requires persistent, seriously oppressive conduct targeted at an individual and resulting in fear or distress. There was no evidential basis for a likelihood of such intentional conduct by the appellant. A mental illness may in some circumstances underlie conduct that amounts to harassment, but that possibility did not establish the required risk here.

4. The word necessary could not be diluted. A prohibition, enforceable by criminal sanction, against an act otherwise lawful requires a true necessity to protect another person. The sentencing judge had used section 5A as a public-protection measure against a possible recurrence of transient mental illness. That was not the function of the provision, and the evidence of a full recovery fell far short of the statutory necessity threshold.

• Court of Appeal (Criminal Division) — by judgment dated 29 November 2012, [2012] EWCA Crim 2566, allowed the appeal and quashed the restraining order.
• Isleworth Crown Court — following an acquittal by reason of insanity, made an absolute discharge and imposed a three-year restraining order prohibiting commercial air travel.