Hilson v McCarthy

Harassment is assessed by reference to the totality of the course of conduct. An individual incident may form part of that course even if it would not, viewed in isolation, amount to the offence.

The relevant conduct must be targeted, objectively calculated to cause alarm or distress, and objectively oppressive and unacceptable. Context is crucial. The fact that information is publicly available does not prevent its use from contributing to harassment. The court may also consider the public duty performed by the target and the potential prejudice to the administration of justice.

The appellants were convicted in the magistrates’ court of harassment contrary to sections 2(1) and (2) of the Protection from Harassment Act 1997. The Crown Court dismissed their appeals and sentenced each to 16 weeks’ imprisonment.

On a case stated, the appellants challenged whether two of four incidents found proved were capable of amounting to harassment. The incidents involved sending material to a judge’s personal email address and referring in court to publicly available information about her family and movements. The central issue was whether the Crown Court had erred in law in treating those incidents as capable of forming part of a harassing course of conduct.

1. The appeal was dismissed. The Crown Court had not erred in law in deciding that the four incidents found proved were capable of amounting to harassment.
2. The offence requires a course of conduct occurring on at least two occasions, targeted at an individual foreseeably likely to be harmed, objectively calculated to cause alarm or distress, and objectively oppressive and unacceptable. Whether conduct is oppressive and unacceptable may depend on its social or working context. A line must be drawn between criminal harassment and conduct that is merely unattractive, unreasonable, irritating, unwelcome or provocative. The court applied the distinction recognised in Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224.
3. An individual incident cannot be separated from its intention, effect and overall context. Sending an email to a judge’s personal address, after considerable effort had been made to discover it, was capable of contributing to a course of conduct intended to show knowledge of her private life.
4. The public availability of information does not create a general rule that its later use cannot amount to harassment. Context remains decisive. Referring to a judge’s family arrangements and movements was capable of being oppressive and objectionable when used to signal intrusive knowledge of her private life.
5. The Crown Court was entitled to take account of the fact that the conduct was directed at a judge performing an important public duty. Conduct intended to intimidate her in relation to that duty could satisfy the required level of criminal gravity. The same reasoning could apply to another public official or citizen.

• Crown Court sitting at Warwick: on 16 October 2018 dismissed the appellants’ appeals against conviction and sentenced each appellant to 16 weeks’ imprisonment.
• High Court (Administrative Court): on a case stated, held that there was no error of law and dismissed the appeal.