Sana Musharraf v R

Complaints to a person’s employer or professional regulator may form part of a stalking course of conduct. The statutory examples of stalking-associated acts are non-exhaustive, and conduct may qualify where, in its factual context, it is directed at the particular person and forms part of a continuing pattern. Harassment is established by the statutory requirements; reasonableness is a defence under Protection from Harassment Act 1997, not an additional prosecution element. A jury need not receive an individual direction on every act where the statutory elements, the required connection between acts and the stepped route to verdict are adequately explained. A restraining order may restrict communications forming part of false and malicious allegations, but must preserve proportionate access to legal and medical advice.

The appellant was convicted at the Crown Court at Isleworth of aggravated stalking causing serious alarm or distress, contrary to section 4A of the Protection from Harassment Act 1997, and of simple stalking as an alternative offence. She received 33 months’ imprisonment and a 10-year restraining order. The conviction concerned a course of conduct directed towards a man with whom she had had a relationship, including excessive messages, uninvited attendances and allegations of rape and sexual misconduct made to his friends, family, employer and professional regulator.

She appealed against conviction on the basis that the complaints could not be stalking-associated acts, that they had to be proved false, and that the jury had been misdirected on harassment, course of conduct and causation. She also challenged the width and precision of parts of the restraining order. The central questions were whether the complaints could legally form part of stalking and whether the directions and order were adequate and proportionate.

1. Conviction. The appeal against conviction was dismissed. The court accepted the statutory analysis as comprising harassment, stalking, serious alarm or distress, and statutory defences.
2. Complaints to an employer or regulator about misconduct can amount to harassment if they cause distress. The prosecution need not prove unreasonableness as an element of harassment. Under section 1(3) of the Protection from Harassment Act 1997, reasonableness is raised by the defendant as a statutory defence. The passage in Crawford v CPS [2008] EWHC 148 Admin was treated as a shorthand exposition of that proposition. The directions made clear that the jury had to be satisfied that the complaints were false before relying on them as part of the harassing course of conduct.
3. The observation in David v Hosany [2016] EWHC 3797 concerned bona fide complaints in a civil harassment claim. It did not establish an additional requirement in criminal proceedings that complaints be conducted in a manner well out of the ordinary.
4. The examples in section 2A(3) are not exhaustive. Depending on the factual context, sending complaints to others about a person may be an act associated with stalking, particularly where it continues and escalates an existing pattern. The judge was not required to direct the jury separately on each factual act. His directions accurately stated the statutory elements and left the jury to determine which acts were associated with stalking.
5. A course of conduct requires a series of related acts occurring on at least two occasions. The directions made clear that the acts had to be connected and that the course of conduct, rather than each act in isolation, had to have the relevant quality. They avoided the defect identified in Patel [2005] 1 Cr App R 27.
6. The direction on causation, read with the route to verdict, did not permit reliance on an undefined wider course of conduct. The jury had first to find harassment and acts associated with stalking before considering whether the course of conduct caused serious alarm or distress. The conviction was safe.
7. Restraining order. The sentence appeal was allowed to a very limited extent. Restrictions on contacting the employer and regulator were reasonable and proportionate in the context of false and malicious allegations. The order was amended to permit responses to fresh communications from those institutions, subject to restrictions on onward transmission. Comparable wording was added to preserve the appellant’s ability to seek legal and medical advice. The respondent was directed to submit a fresh order within seven days.

• Crown Court at Isleworth: the appellant was convicted on count 1 of aggravated stalking and on count 2 of the alternative offence of simple stalking. She was sentenced to 33 months’ imprisonment and made subject to a 10-year restraining order.
• Court of Appeal (Criminal Division): the conviction appeal was dismissed. The sentence appeal was allowed to a very limited extent, with amendments to the restraining order and a direction for a fresh order to be submitted within seven days.