R v Trevor Tanner

For aggravated stalking under section 4A of the Protection from Harassment Act 1997, the prosecution must adduce evidence from which a properly directed jury could find both serious alarm or distress caused by the charged course of conduct and a substantial adverse effect on the complainant’s usual day-to-day activities. Evidence of a complainant’s prior fear of the defendant, without evidence of the required impact from the extant conduct, cannot by itself establish those elements.

Where that evidential threshold is not met, the aggravated-stalking conviction must be set aside. The Court of Appeal may nevertheless substitute a conviction for a lesser offence where the jury must have found the facts establishing it.

The appellant was convicted at Bristol Crown Court on 28 May 2024 of aggravated stalking contrary to section 4A of the Protection from Harassment Act 1997. The prosecution alleged that he had fitted tracking devices to his former wife’s car between November 2022 and January 2023.

After the prosecution closed its case, the defence submitted that there was no evidence capable of proving serious alarm or distress and a substantial adverse effect on the complainant’s ordinary activities. The trial judge rejected that submission, allowed the prosecution to reopen its case, and permitted the complainant to be recalled. The appellant appealed against conviction, challenging each of those rulings.

1. Appeal allowed. The Court held that the trial judge should have upheld the submission of no case to answer on the charge of aggravated stalking. There was no evidence upon which a properly directed jury could find the requisite serious alarm or distress caused by the charged stalking, or the required substantial adverse effect on the complainant’s usual day-to-day activities.

2. The complainant’s observation of a car which she thought might have been the appellant’s, and her mention of it to her sister, could not amount to evidence of serious alarm or distress arising from the extant stalking. The judge had also made a factual error in treating the police examination of the complainant’s car as a response to her concern that she was being followed. It had instead followed the offender manager’s suspicions.

3. The court was extremely cautious about treating the complainant’s continuing fear, founded on earlier conduct, as permitting an inference that discovery of the trackers during the indictment period caused the statutory level of alarm or distress. Nor could the invitation to take the car to the police station constitute a substantial adverse effect on ordinary activities.

4. It was therefore unnecessary to decide the complaints about reopening the prosecution case and recalling the complainant. The Crown’s application for a retrial was refused. In the circumstances, and in the interests of justice, a retrial would give the prosecution a second opportunity to cure its evidential omission.

5. Applying section 3 of the Criminal Appeal Act 1968, the court substituted a conviction for stalking contrary to section 2A of the Protection from Harassment Act 1997. The evidence before the jury before the no-case submission was sufficient to establish the lesser offence. Taking account of the appellant’s relevant previous convictions and personal mitigation, the court imposed five months’ imprisonment on the substituted conviction. The judgment records that the sentence was corrected after the court reopened its decision under rule 36.15 of the Criminal Procedure Rules.

• Court of Appeal (Criminal Division) In [2024] EWCA Crim 1576, allowed the appeal against conviction for aggravated stalking, refused a retrial, and substituted a conviction for stalking under section 2A of the Protection from Harassment Act 1997.

• Crown Court at Bristol On 28 May 2024, convicted the appellant of aggravated stalking contrary to section 4A of the Protection from Harassment Act 1997.