Pendlebury v Director of Public Prosecutions

For an offence under section 4A of the Protection from Harassment Act 1997, the prosecution must prove that stalking actually caused the complainant to fear, on at least two occasions, that violence would be used. It is insufficient to prove only circumstances which might reasonably have caused such fear. The required fear is real and not remote or hypothetical. Direct evidence is unnecessary, since the magistrates may draw an inference from the complainant’s words, conduct and demeanour. Each occasion must be assessed separately. Later events cannot be used improperly to establish the complainant’s state of mind on earlier occasions.

The appellant was convicted by East London Magistrates of stalking involving fear of violence contrary to section 4A of the Protection from Harassment Act 1997. The prosecution case concerned repeated messages, telephone calls, threats involving a sexually explicit recording, aggressive behaviour and the appellant’s concealed appearance near the complainant’s workplace.

The magistrates found that the course of conduct amounted to stalking and that the complainant feared violence on at least two occasions. The appeal by way of case stated concerned whether the evidence was sufficient to establish the statutory requirement of fear of violence on each occasion.

1. The appeal was allowed. The question stated by the magistrates was reformulated to reflect the three statutory requirements: stalking; fear, on at least two occasions, that violence would be used; and knowledge or constructive knowledge that the conduct would cause that fear on each occasion.
2. Once stalking under section 2A of the Protection from Harassment Act 1997 is proved, section 4A requires proof of the actual effect on the complainant’s mind. The statute does not require conduct beyond the stalking itself, nor does it require a specific threat or an attempt at violence.
3. The fear must nevertheless be an actual and specific fear of physical violence. A fear of being hunted down, exposure of sexually explicit material, alarm, distress or continued harassment does not by itself establish fear of violence. It is insufficient to show merely that circumstances might reasonably have engendered that state of mind.
4. Direct evidence is not essential. The magistrates may infer fear of violence from the complainant’s evidence, reactions and demeanour. Here, the complainant’s reaction to the appellant’s concealed appearance at her workplace, including grabbing her phone out of fear, was capable of establishing one occasion of fear of violence.
5. The prosecution evidence did not establish a second occasion. The magistrates improperly considered the evidence cumulatively and relied on the later workplace episode when assessing the complainant’s state of mind on earlier occasions. The conviction therefore could not stand.
6. Mr Justice Phillips agreed in the result and with the general legal principles. He considered that the words used by the complainant could in an appropriate case support an inference of fear of violence, but held that the magistrates’ stated reasoning relied on impermissible matters and did not establish an earlier occasion.

• High Court (Administrative Court): allowed the appeal by way of case stated from the East London Magistrates’ decision of 16 January 2018 convicting the appellant.