Damji, R. v

Under section 5(5) of the Protection from Harassment Act 1997, the prosecution need not prove a separate element of actual or constructive knowledge of the circumstances constituting a breach of a restraining order. The statutory requirement that the prohibited act be done without reasonable excuse supplies the relevant protection for an honest and reasonable mistake.

Whether a hyperlink amounts to a prohibited reference is fact-sensitive. On sentence, culpability and harm under the breach-offences guideline depend on the whole context, and harm includes intended as well as actual harm. Consecutive terms must nevertheless produce a just and proportionate total sentence. Restraining orders must be necessary, proportionate, and drafted clearly and precisely.

The appellant had previously been made subject to a restraining order following convictions for stalking. She was later convicted at the Crown Court at Southwark of two breaches of that order, contrary to section 5(5) of the Protection from Harassment Act 1997.

Count 2 concerned a tweet linking to a crowd-funding page which, directly or by hyperlinks, referred to the investigating officer and a prosecution witness named in the order. The appellant contended that the jury should have been directed to find that she knew the linked material contained those references. She also challenged consecutive custodial terms totalling 27 months and the variation of the order.

The central issues were whether knowledge was a separate element of the statutory offence, whether any omission in the jury direction rendered the conviction unsafe, and whether the sentence and varied order were lawful and proportionate.

1. The court dismissed the appeal against conviction on count 2. Section 5(5) of the Protection from Harassment Act 1997 does not require the prosecution to prove a separate element of actual or constructive knowledge of the circumstances making conduct a breach. The prosecution must prove beyond reasonable doubt that the defendant acted without reasonable excuse. An honest and reasonable mistake may provide that excuse. This is the statutory middle ground between full mens rea and strict liability.

2. The court followed the analogous reasoning in R v Nicholson [2006] EWCA Crim 1518. It also applied the presumption discussed in Sweet v Parsley [1970] AC 132, but held that the reasonable-excuse qualification met the objection to punishing a blameless person. It was therefore unnecessary to imply a further knowledge requirement.

3. Alternatively, any inadequacy in the direction was immaterial. The tweet made little sense without its link. The crowd-funding page itself made implied references to the protected persons, and the evidence left no sensible basis for finding that the appellant had posted or authorised the tweet while unaware of its contents. The conviction was safe.

4. The court allowed the sentencing appeal in part. There are no fixed categories of a very serious breach under the Guideline. The sentencing judge was entitled to assess culpability in its full context and to assess harm by intended as well as actual harm. However, although concurrent or consecutive terms were both available, consecutive terms imposed at the upper end of each range required an express and adequate application of totality. The total of 27 months was manifestly excessive. The terms were ordered to run concurrently, producing an overall sentence of 18 months’ imprisonment.

5. The court upheld the need to extend the restraining order to the Southwark proceedings. It nevertheless varied term 10 by adding “save through solicitors”, so that the order accurately reflected the judge’s stated intention. Restraining orders must be expressed clearly and precisely: see R v Debnath [2006] 2 Cr App R(S) 25.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The appeal against sentence was allowed to the extent that consecutive terms were replaced with concurrent terms, reducing the total sentence to 18 months’ imprisonment. The appeal against variation of the restraining order was allowed to the limited extent of adding “save through solicitors” to term 10: [2020] EWCA Crim 1774.

• Crown Court at Southwark: The appellant was convicted on 20 February 2020 of two breaches of a restraining order under section 5(5) of the Protection from Harassment Act 1997. On 30 March 2020 she received consecutive terms totalling 27 months’ imprisonment, and the original restraining order was varied.