ZN, R. v

For breach of a non-molestation order under the Family Law Act 1996, harassment is not established merely because conduct causes alarm or distress. The inclusive wording of section 7(2) of the Protection from Harassment Act 1997 requires an objective assessment of whether conduct is oppressive and unacceptable in its context, and sufficiently grave to justify criminal liability. Reasonableness is a distinct statutory defence. A jury direction which omits the oppression requirement omits a central ingredient. The resulting conviction is unsafe unless the appellate court can be sure that a properly directed jury would have convicted.

The appellant was convicted at the Crown Court at Kingston-upon-Thames of two offences of breaching a non-molestation order. The order prohibited her from intimidating, harassing or pestering the complainant, or encouraging another person to do so.

The convictions concerned a series of emails about contact with the parties’ daughter. The emails included serious allegations about the complainant and were copied to others. The appellant denied that some emails were hers, denied that the communications were intimidating or harassing, and relied on concern for her daughter’s welfare.

At trial, the judge directed the jury that harassment meant causing alarm or distress. On appeal, the central issue was whether that direction failed to identify the required threshold of oppressive conduct and, if so, whether the convictions were nevertheless safe.

1. Appeal allowed. The judge misdirected the jury on the meaning of harassment, and the court could not be sure that a properly directed jury would have convicted. The convictions were therefore unsafe.
2. Section 7(2) of the Protection from Harassment Act 1997 is inclusive rather than exhaustive. It does not make every act causing alarm or distress harassment. Drawing on Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, Majrowski v Guy’s and St. Thomas’s NHS Trust [2006] UKHL 34, and the other authorities reviewed, the court held that the conduct must be targeted and objectively oppressive and unacceptable in its context. It must cross the line between merely unattractive or unreasonable behaviour and conduct sufficiently grave to warrant criminal sanction.
3. The standard wording of the non-molestation order had to be construed consistently with that understanding of harassment. Accordingly, the jury should have been directed to decide whether the communications were oppressive, not simply whether they caused alarm or distress. The unchallenged direction on intimidation did not cure the omission concerning harassment.
4. The court further held, following R v Haque [2011] EWCA Crim 1871, that under section 1(3)(c) of the Protection from Harassment Act 1997 reasonable conduct is a defence rather than an additional matter for the prosecution to disprove. The same approach applied when construing “harass” in the order made under the Family Law Act 1996. The trial judge’s reasonable-excuse direction was fair to the appellant, but it did not supply the missing oppression element.
5. Although the emails were highly objectionable and a conviction on a correct direction was possible, acquittal was also a real possibility. The court therefore allowed the appeal.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction on the ground of misdirection: [2016] EWCA Crim 92.
• Crown Court at Kingston-upon-Thames: On 5 December 2014, the appellant was convicted of two counts of breaching a non-molestation order and, on 9 January 2015, received concurrent 12-month community orders.