Qosja, R. v

For stalking involving fear of violence under section 4A(1)(b)(i) of the Protection from Harassment Act 1997, the fear need not concern immediate violence arising directly from the incident in question. It may concern violence on a separate later occasion. The statute does not require a specified future time, place, manner of violence, or an express threat.

Whether the statutory threshold is met remains a question of fact and degree. The complainant must fear that violence will, rather than merely might, be used on at least two occasions. The full context of an escalating course of conduct may permit a jury to find the required fear on a later visit.

The appellant was convicted of stalking involving fear of violence and of assault by beating. He appealed, with leave, against the stalking conviction only.

The prosecution alleged an escalating course of conduct towards the complainant. It included unwanted communications, an angry confrontation, unauthorised entry into her bedroom during the early hours of 1 August 2015, and a later return with house keys taken without her consent. The trial judge rejected a submission of no case to answer.

The appeal raised whether the complainant’s fear during the later visit was sufficiently immediate and specific to amount to fear of violence on a second occasion for section 4A(1)(b)(i).

1. Appeal dismissed. The trial judge correctly left the stalking count to the jury. The conviction was safe.

2. Section 4A(1)(b)(i) of the Protection from Harassment Act 1997 is not confined to fear of immediate violence, or violence directly arising from the incident which occasions the fear. It extends to fear that violence will be used on a separate and later occasion. It does not require fear of violence at a particular future time, place, or in a particular manner. Nor does it require a specific threat of violence.

3. The necessary fear is nevertheless fear that violence will be used, rather than a merely speculative possibility that it might be used. Whether that threshold is met is a question of fact and degree for the jury on the evidence as a whole.

4. The court treated the construction of the materially identical wording in section 4 as consistent with that conclusion. R v Henley [2000] Crim LR 582 confirmed that immediate violence was not required. R v DPP 165 JP 349 illustrated that Parliament had not confined the offence to specified forms of threat.

5. On the evidence, the afternoon return with the complainant’s keys was highly menacing when assessed in the context of the preceding conduct. That context included the early-morning trespass and assault. A jury was entitled to infer that, on the later visit, the complainant feared future violence if the appellant again gained unauthorised access to her home. The absence of an express threat and the presence of flatmates did not prevent that conclusion.

• Court of Appeal (Criminal Division): dismissed the appeal against the stalking conviction in [2016] EWCA Crim 1543.
• Trial court: on 8 January 2016 convicted the appellant of stalking involving fear of violence and assault by beating, and imposed a total sentence of two years’ imprisonment.