Tan, R. v

For stalking, harassment is not established merely because conduct causes alarm or distress. The conduct must cross the boundary from unattractive or unreasonable behaviour to conduct that is oppressive and unacceptable and sufficiently serious to attract criminal liability.

A jury direction need not reproduce a prescribed formula. Its adequacy is assessed in the context of the case and by whether it directs the jury to the necessary criminal threshold. Under section 4A, the requirement that alarm or distress have a substantial adverse effect on usual day-to-day activities materially excludes trivial consequences. The omission of the word “serious” will not make a conviction unsafe where the directions as a whole adequately convey that threshold.

The appellant was convicted at the Crown Court at Isleworth of stalking involving serious alarm or distress and careless driving. The stalking allegation concerned a prolonged course of conduct directed at neighbouring complainants, including photographing and recording them, making reports to public authorities, and making allegations to the police. The appellant contended that her conduct was pursued to prevent or detect crime.

She appealed against the stalking conviction. She argued that the Recorder had inadequately directed the jury on the meaning of harassment and had omitted the word “serious” from the question concerning alarm or distress and its effect on the complainants’ day-to-day activities.

1. Appeal dismissed. The conviction for stalking involving serious alarm or distress was safe.

2. Harassment is not defined exhaustively by section 7(2) of the Protection from Harassment of the Police Act 1997. The court applied the guidance in Majrowski v Guy's and St Thomas NHS Trust [2006] UKHL 34: criminal liability requires conduct that crosses the boundary from merely unattractive or unreasonable behaviour to behaviour that is oppressive and unacceptable.

3. The Recorder’s explanation stated that harassment could include persistent, oppressive or unacceptable conduct targeted at another person and causing alarm, fear or distress. Although clearer wording was possible, it did not equate harassment merely with causing alarm or distress. The court applied the working understanding in R v N [2016] EWCA Crim 92, while distinguishing that case because the direction criticised there had simply equated harassment with causing alarm or distress.

4. The adequacy of the direction had to be assessed against the issues actually raised. The principal dispute was whether the appellant’s conduct was pursued for the statutory purpose of preventing or detecting crime, rather than whether conduct of the alleged kind was capable of amounting to harassment.

5. The Recorder omitted “serious” from the route-to-verdict question concerning alarm or distress. That omission was unfortunate. However, section 4A(1)(b)(ii), read as a whole, confines the offence to conduct producing a substantial or material, rather than trivial, adverse effect on usual day-to-day activities. The directions sufficiently conveyed the required threshold and did not render the conviction unsafe.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2017] EWCA Crim 493.
• Crown Court at Isleworth: On 22 December 2015, convicted the appellant of stalking involving serious alarm or distress and careless driving. She received a suspended sentence for stalking, a criminal behaviour order, and a fine and penalty points for careless driving.