Neutral Citation Number: [2011] EWCA Crim 1500
Case No: 201006496 C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NORWICH CROWN COURT
HHJ DARROCH

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/06/2011
Before :

LORD JUSTICE PILL
MR JUSTICE BEAN
and
MRS JUSTICE MACUR DBE
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Between :

	Regina	Appellant	
	- and -		
	David Roger Widdows	Respondent	

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Mr Lindsay Cox  (instructed by the CPS) for the Appellant
Mr John Farmer  (instructed by Fisher Cowe Solicitors) for the Respondent

Hearing date : 18 May 2011
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Judgment

LORD JUSTICE PILL : 
1.	On 3 November 2010 in the Crown Court at Norwich before His Honour Judge Darroch and a jury, David Roger Widdows was convicted of putting a person in fear of violence by harassment contrary to section 4 of the Protection from Harassment Act 1997 (count 1).  He was acquitted on counts 2 and 3 which both charged rape alleged to have been committed on 6 March 2010.  
2.	On 19 November 2010, Widdows was subject to a suspended sentence order with 20 weeks imprisonment suspended for 2 years, a supervision order for 2 years and other ancillary orders.  
3.	Widdows appealed against conviction by leave of the single judge.  Following a hearing on 18 May 2011 the appeal was allowed and the conviction quashed.  We now give our reasons for that decision.  
4.	Between August 2008 and March 2010, the appellant and the complainant, Sarah Bunn, were involved in a volatile relationship and lived together.  They separated on many occasions during that period but reunited after a few hours or days.  During separations, the appellant would stay with an elderly friend called Daphne.  The charge under section 4 was based on six incidents between January 2009 and March 2010.  The rapes were alleged to have occurred during the final incident on 6 March 2010.  In his summing up, the judge summarised the evidence about the incidents in considerable detail.  The complainant was a mature woman in good employment but was emotionally vulnerable.    
5.	In June 2009, the appellant was staying at Daphne’s but visited the complainant and they had sexual intercourse.  He declined her offer to stay the night and returned to Daphne’s.  Suspecting that he had left to go on an internet dating site, she visited Daphne’s and confronted the appellant.  She was upset.  
6.	The complainant’s evidence was that, when he opened the door, the appellant shouted at her and was aggressive and nasty.  He lifted her and threw her out of the house.  Her arm was badly bruised.  His evidence was that she was harassing him.  He had taken hold of her arm, perhaps too tightly, and forcibly taken her out through the door while she was shouting and screaming.  He had not thrown her out.  
7.	In July 2009, the complainant wanted to spend an evening with a female friend.  Her evidence was that the appellant pushed her over and shouted in her face, which made her feel awful and lonely.  He said he could not recall the incident but had never prevented her from seeing friends.  
8.	The appellant and the complainant were due to go together on holiday in Turkey in August 2009 but the appellant needed to renew his passport.  They argued during the journey to the office.  The complainant said that the appellant disparaged her navigational skills and put his hand to his ear.  When she attempted to move his hand, he hit her near her nose and mouth.  He was genuinely upset and tended to her injury.  The appellant’s evidence was that she poked him in the eye and, while trying to push her away, he had accidentally hit her.  
9.	Referring to the holiday in Turkey, the complainant said: “We had a really lovely time.  When I was off work, he really looked after me.”  
10.	Summing up other events late in 2009, the judge referred to the complainant’s evidence in these terms: “We split up in December 2009 for a night and a day.  I rang him up and invited him back.”  The judge noted that the complainant had invited him back on other occasions.  
11.	On an occasion in January 2010, the complainant was unhappy that the appellant had not gone to work and she made him go.  While he was at work, she sent him a “nice” text.  On his return home, she said that he refused to read the text and threw her onto the wooden floor.  He pushed her up the stairs.  The appellant’s evidence was that when he had refused to switch on his phone, she was persistent and he told her to go away and pushed her.  
12.	Later in January 2010, the appellant and the complainant stayed overnight at a hotel where they each consumed quantities of alcohol.  When they returned to their room, she received a text from a friend’s boyfriend which ended with a kiss.  Her evidence was that the appellant “lost it”, hit her with her boot and dragged her into the bathroom.  His evidence was that he was annoyed because the text was something to do with drugs but it was the complainant who had picked up the boot and he defended himself.  
13.	On 6 March 2010, the appellant and the complainant consumed vodka and cocaine which the complainant had brought home.  They had consensual sexual intercourse in the bathroom.  Her evidence was that afterwards and without warning the appellant put his penis into her mouth, persisting in spite of her objection.  He wanted more sex but she told him “later”.  The appellant climbed on top of her, forced her legs open and raped her.  He then put her face under the shower.  
14.	The appellant’s evidence was that the sexual activity was consensual.  She then changed and started to slap him.  He was trying to contain the situation and thought the amount of force used was reasonable.  As we have stated, the appellant was acquitted on the two charges of rape.  
15.	Section 4(1) of the Protection from Harassment Act 1997 (“the 1997 Act”) provides: 
“A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.”
16.	Count 1 of the indictment provided: 
“STATEMENT OF OFFENCE
PUTTING A PERSON IN FEAR OF VIOLENCE BY HARASSMENT, contrary to section 4(1) of the Protection from Harassment Act 1997. 
PARTICULARS OF OFFENCE
DAVID WIDDOWS between the 16th day of June 2009 and the 7th day of March 2010 caused Sarah BUNN to fear that violence would be used against her by his course of conduct which he knew or ought to have known would cause fear of violence to Sarah BUNN on each occasion in that he assaulted and intimidated her on numerous occasions.”
17.	For the appellant, Mr Farmer submitted that prosecution under section 4 was misconceived in the circumstances.  The section is not intended to cover incidents of dispute, even if leading to violence, during a long, close and mainly affectionate relationship which was sought by both parties.  Further, it was inappropriate and prejudicial to the appellant to join a section 4 charge with two charges of the very serious offence of rape.  Not only was the section 4 allegation a distraction from the issues in rape but a jury could not be expected rationally to address themselves to section 4 issues if they were at the same time considering charges of rape.  
18.	It was also submitted that the summing up was defective, particularly in failing to direct the jury as to the requirements of the section 4 offence, the need for a course of conduct which amounted to harassment.  Reliance is placed on the decision of this court in Curtis [2010] 1 Cr App R 31 [2010] EWCA Crim 123.  
19.	For the prosecution, Mr Cox accepted that it was not a classic or paradigm case of harassment.  However, there was evidence that the elements of the offence were present.  There was evidence that the appellant had been violent on each of the six occasions and that, as a result, the complainant feared future violence.  The six incidents could properly be called a course of conduct which caused the complainant to fear that violence would be used against her.  
20.	There had been no objection by the defence to the joinder of the charge with the rape charges.  Curtis was distinguishable, it was submitted, in that the incidents were more one sided (depending on how the jury approached the evidence) and more violence was used by the appellant than by the defendant in Curtis.  Mr Cox accepted that there could have been, but were not, charges of violence against the appellant on each occasion.  He appeared to us in effect to admit (he did not settle the indictment) that the section 4 count was joined with the counts of rape in order to give the prosecution the opportunity to adduce evidence of violence on earlier occasions which might support the charges of rape.  
21.	Mr Cox relied on the judge’s direction, in his summing up, that separate verdicts were required on each count, using the words rape and harass in that context.  The judge said he would define the offence alleged in count 1 and mentioned the six occasions relied on.  He added that “there may have been evidence of a little bit of pushing and shoving and disagreement etc on other occasions.”
22.	The judge stated: 
“So, what do they have to prove on count 1?  Well, it is mainly, as it were, laid out.  It puts in dates and these are dates within the relationship; caused Sara Bunn to fear violence would be used against her.  Well, violence is a fairly ordinary English word; by his course of conduct.  Well, that means at least two incidents, a course of conduct, which he knew or ought to have known would cause fear of violence; in other words, on at least two occasions, he behaved in such a way that he knew or ought to have known would cause her to think she was going to be the subject of violence, and the basis of that is that in the past, he had assaulted her.  So, in other words, the prosecution are saying that he has caused her on at least two occasions to fear violence would be used because of two previous assaults.  In other words, that is what put it into her mind, and he knew or ought to have known she would fear violence.  It is not necessary to prove that every time they met he put her in fear.  Quite obviously, that did not happen.”
23.	The judge then defined, in considerable detail, the requirements if assault is to be established, and considered issues of accident, reasonable force to remove the appellant from Daphne’s premises and self defence.  The judge added: 
“I would boil this down, if I may, to three questions you might like to ask; one, did he cause her at least twice to fear violence would be used against her?  Two, if so, was that fear caused by at least two unlawful - - I stress the word because I have dealt with accident and self defence - - if so, was that fear caused by at least two unlawful assaults?  Thirdly, did he know or ought he to have known she would fear violence would be used?  I suggest you concentrate on those.”
24.	Mr Cox submitted that the direction was adequate and that further reference to or definition of harassment was not required.  The judge had repeated the words in section 4.  
25.	Curtis was not cited to the judge.  It has much in common with the present case; a volatile relationship, six incidents in that case over a four month period, outbursts of ill-temper and bad behaviour interspersed in considerable periods of affection.  
26.	In Curtis, the court found, at paragraph 31, that it must be established that the course of conduct was conduct amounting to harassment as defined in the authorities: Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224, Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, R v Hills [2001] 1 FLR 580 were cited.
27.	As the court stated in paragraph 32, harassment includes alarming the person or causing the person distress (section 7(2) of the 1997 Act).  The conduct in Curtis could not be regarded as a “course of conduct amounting to harassment.”
28.	The absence of the word harassment itself from section 4 of the 1997 Act was considered by the court, at paragraph 20.  Giving the judgment of the court, I stated: 
“The "course of conduct" identified in section 4(1) is a course of conduct which amounts to harassment of another. That follows, in our judgment, from the definition in section 1(1)(a), confirmed in section 2 by the reference to "a course of conduct in breach of section 1(1)". Section 1 is headed "Prohibition of harassment". The 1997 Act describes itself as "an Act, to make provision for protecting persons from harassment and similar conduct". On a trial on indictment, the jury may find a defendant guilty of an offence under section 2, as an alternative, on a charge under section 4, which demonstrates that both are concerned with a course of conduct amounting to harassment. The issue is whether, on the evidence, the appellant had pursued a course of conduct in relation to Donna which amounted to harassment of her. If he did, there was sufficient evidence to go to the jury on the "fear" element in section 4(1).”
29.	In our judgment, the present case is indistinguishable, in the prosecution’s favour, from Curtis.  When bringing a charge under section 4 the prosecutor (and the judge when summing up) should have in mind the concept of harassment which is at the core of the 1997 Act, though the word is not used in section 4 and the explanation of harassment in Majrowski “stalkers, racial abusers, disruptive neighbours, bullying at work and so fourth” and in Thomas, where the practice of stalking was said to be a prime example.  The section is not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in a long and predominantly affectionate relationship in which both parties persisted and wanted to continue.  
30.	Save of course for the rape, violence has not been charged in this case but is relied on as creating the fear of further violence contemplated in section 4.  The emphasis in the summing up was not on what amounts to harassment but what amounts to assault.  Further direction was required as to what can be a course of conduct amounting to harassment.  Description of a number of acts of violence spread over nine months during a close and affectionate relationship does not satisfy the course of conduct requirement or the requirement that it is conduct amounting to harassment.  
31.	The additional feature in the present case is the presence in the indictment of two counts of rape.  It was not in our judgment appropriate to join the count under section 4 with allegations of rape.  One set of allegations should have been considered without the distraction of the other, especially in circumstances in which a harassment count was in any event inappropriate.  
32.	Given the circumstances, the presence of the rape counts, and the lack of a sufficient direction in the summing up, the conviction cannot be regarded as safe.  It was for those reasons that the appeal was allowed and the conviction quashed.