Neutral Citation Number: [2011] EWCA Crim 1871

Case No: 201004308C2

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HHJ JOSEPH QC
T20090594
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26/07/2011
Before :
LORD JUSTICE HOOPER
MR JUSTICE STADLEN
and
MR JUSTICE SWEENEY
--------------------Between :
MOHAMMED ENAMUL HAQUE
- and THE CROWN
----------------------------------------Miss B. Jung appeared for the Appellant.
Ms. S. Fawcett appeared for the Respondent.
Hearing date: 14th June 2011
---------------------

Approved Judgment

Appellant
Respondent

Lord Justice Hooper:

1.

During the hearing we announced that leave to appeal on two grounds was refused
and that we granted leave to appeal on a third ground, which we shall for convenience
call the Curtis ground. Having told counsel that we granted leave to appeal on this
ground, counsel adopted the arguments which they had put forward during the hearing
and told us that they did not wish to add anything. We now give our conclusion on the
Curtis ground and brief reasons for refusing leave to appeal on the two other grounds.

2.

The appellant was convicted at Snaresbrook Crown Court on 25th May 2010 by a jury
of an offence contrary to section 4(1) of the Protection from Harassment Act 1997.
The judge was HHJ Wendy Joseph.

3.

The statement of offence read:

Putting a person in fear of violence by harassment contrary to
section 4(1) of the Protection from Harassment Act 1997.

4.

Although the statement of offence referred to harassment, section 4 is headed Putting

people in fear of violence.

5.

The particulars read:

Mohammed Haque between the 3rd day of January 2009 and the
12th day of January 2009 caused Mohammed Nazrul Islam to
fear that violence would be used against him by his course of
conduct which he knew or ought to have known would cause
fear of violence to Mohammed Nazrul Islam on each occasion
in that between the 3rd day of January 2009 and the 12th day of
January 2009 you sent threatening emails and letters.

6.

The particulars follow the precise language of sub-section (1). Section 4 reads:
(1) 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.
(2) For the purposes of this section, the person whose course
of conduct is in question ought to know that it will cause
another to fear that violence will be used against him on any
occasion if a reasonable person in possession of the same
information would think the course of conduct would cause the
other so to fear on that occasion.
(3) It is a defence for a person charged with an offence under
this section to show that
(a) his course of conduct was pursued for the purpose of
preventing or detecting crime,

(b) his course of conduct was pursued under any enactment

or rule of law or to comply with any condition or
requirement imposed by any person under any enactment, or
(c) the pursuit of his course of conduct was reasonable for
the protection of himself or another or for the protection of
his or another's property.
(4)
A person guilty of an offence under this section is
liable
(a) on conviction on indictment, to imprisonment for a term
not exceeding five years, or a fine, or both, or
(b) on summary conviction, to imprisonment for a term not
exceeding six months, or a fine not exceeding the statutory
maximum, or both.
(5) If on the trial on indictment of a person charged with an
offence under this section the jury find him not guilty of the
offence charged, they may find him guilty of an offence under
section 2.
(6) ...
7.

It was submitted by Miss Jung, who did not appear for the appellant at trial, that the
particulars should have read in order to reflect the decision in Curtis [2010] EWCA
Crim 123; [2010] 1 Cr. App. R. 31:
Mohammed Haque between the 3rd day of January 2009 and the
12th day of January 2009 caused Mohammed Nazrul Islam to
fear that violence would be used against him by his course of
conduct which amounted to harassment and which he knew or
ought to have known would cause fear of violence to
Mohammed Nazrul Islam on each occasion in that between the
3rd day of January 2009 and the 12th day of January 2009 [he]
sent threatening emails and letters.

The facts
8.

The complainant (Mohammed Nazrul Islam) was the appellants older brother. Both
resided in the UK. The complainant had six children including a son named Shahnoor
(known as Boyan). The appellant had one son called Ethesham and had full time care
of six nieces and nephews, including a niece called Shahida Aziz and a nephew called
Yasin Aziz. In 2000 the mother of the complainant and of the appellant passed away
and their father moved back to Bangladesh, taking their sister, Roshonara Begum
(known as Yahuffu or Hufu) with him. Yahuffu, as we shall call her, is now in her
mid-fifties. She suffers from chronic schizophrenia and has the mental age of a young
child. She requires constant care. The father remarried a woman named Somorun
Nessa, who had a young daughter called Lucky from a previous marriage. The father,
Yahuffu, his wife Somorun Nessa and Lucky lived together in the family ancestral

home (known as the Bari) in Banigazi, Bangladesh. The father passed away in 2006.
Somorun Nessa and Lucky remained in the Bari and were responsible for Yahuffus
care. The complainant was also responsible for Yahuffus care and he visited from the
UK on a regular basis. In December 2008 the appellant and the complainant travelled
separately to the Bari. Prior to meeting in Bangladesh on that trip they had not seen or
spoken to each other for 7 to 8 years.
9.

On 4th January 2009, both the appellant and the complainant returned to the UK.

10.

It was the prosecutions case that in the days following 4th January the appellant was
responsible for sending two letters, two emails and a number of text messages venting
his anger which caused the complainant to fear that violence would be used against
him.

11.

The defence case was that the complainant was not put in fear of violence and had
lied when he said that he was. The appellant also relied upon the statutory defence
that his course of conduct was reasonable. The appellant was acting to protect his
sister. Yahuffu was mentally disabled and required constant care. The complainant, so
the appellant claimed, had been complicit in the mistreatment and abuse of Yahuffu
by Somoron Nessa and Lucky. The appellants reaction was reasonable in the
circumstances to prevent Yahuffu from coming to any further harm. The appellant
also feared that the complainant would return to the Bangladesh in order to seize
control of the estate and attempt to sell parts or all of the property illegally. If the
complainant succeeded in doing this, Yahuffu, so the appellant claimed, would have
effectively become homeless.

12.

The complainant gave evidence (from behind a screen and via an interpreter) and said
that by the time his mother died the appellant was already estranged from the family.
The appellant made no contact or effort to do anything following their mothers death.
Their father took Yahuffu to Bangladesh to live at the Bari. In 2006 their father died
and the appellant again made no contact. By 2006 the visa allowing Yahuffu to return
to the UK had expired. The complainant had problems arranging a move for her but
had been in touch with the embassy. The appellant played no part in the arrangements
for her. He did not visit, telephone or have any other contact. Thereafter Yahuffu was
cared for in the Bari by Somorun Nessa and Lucky with the complainants support.
The complainant sent money and visited once a year. On occasion, he had visited two
or three times in the same year. The appellant had a feud with his parents which also
involved the complainant and had split the family causing some members to side with
the appellant (particularly the nieces and nephews) and some with the complainant.

13.

In December 2008 the complainant visited his sister and was very surprised when the
appellant arrived at the Bari three hours after he did. The appellant had not been there
for over thirty years. He had not had any contact with the appellant for ten years.
Relatives told the complainant that the appellant was on his way to kill him. When the
appellant arrived he was very critical of Yahuffus care even though, said the
complainant, she was being properly cared for. She was not being mistreated. She had
a bed and he sent money for her to be properly fed. She had not been hit by Lucky. He
believed that the appellant was using Yahuffus care as an excuse to drive him out and
seize the Bari. The complainant was quite satisfied that Yahuffu was being properly
cared for. That night people came to the main gate and into his room in the middle of
the night. He was so frightened that he left the Bari immediately and made his way

back to the UK. Upon his return to the UK he reported the threats to the police. He
was told they had no jurisdiction over events that had occurred in Bangladesh.
14.

On the 4th January he received the appellants first letter which, being unsigned, the
complainant asked the appellant to sign. By the time the complainant received this
letter he had already received some telephone calls from the appellant. In the first
telephone call the appellant swore at him, abused him and threatened to kill him. He
received another two letters. The second letter arrived on or around the 7th January
2009. He then received a third letter which made him even more frightened. The
appellant also sent a number of text messages and emails to the appellant and to
Shahnoor Islam (Boyan). On the 10th January 2009 he received a number of text
messages. He said that he did not know how to handle what was happening. He said
that the cumulative effect of the telephone calls, the letters and the emails, combined
with the belief that his nephews were looking for him to attack him, made him very
scared that violence would be used against him. People came to his door looking for
him and his wife. They could not find him because he went into hiding. Upon
receiving the last text message he telephoned the police at 1:28am on the 11th January
2009. The police later came to his house.

15.

The thrust of the communications between the appellant and the complainant related
to the complainants alleged treatment of Yahuffu. To prove the charge under section
4(1) the prosecution relied particularly upon the following passages in the
communications:
. if you have any or all of the above and you do not hand
them over to me in the next seven days I will commence a
systematic onslaught on you the like of which will make you
shit your pants (6 January)
I swear on my son, no matter how many pigs you call I will
come and do some serious damage to you. If I dont find you I
will look for your fake Muslim sonI dont want to kill you as
it is too good for you. I want to extract each and every teeth
you have left one at a time. Now heres the payoff, I will not
be using any anaesthetic. You fucking cunt
One more thing so long as Sis is or will be in the Bari you
and your children are not allowed to enter the compound. If
they do I will break your fucking legs (10 January)
I swear on my son, no matter how many pigs you call I will
come and do some serious damage to you. If I dont find you I
will look for your fake Muslim son (10 January)

16.

In cross-examination the complainant denied that he was sick of his sister. He would
have been happier if someone else visited occasionally instead of him. When the
appellant first telephoned him he swore and threatened to kill him. He was scared. He
called the police because he believed the threats. He thought that the letter (dated 4th
January2009) came after the first call. He said that the allegations made in the letter
dated 4th January 2009 were untrue. As far as he was aware Yahuffu was properly
cared for. He had wanted the appellant to sign the 4th January letter. The complainant

felt that he was in danger and believed the appellant was violent and he believed the
threats that his life was in danger. He called the police and knew that they had
arrested the appellant and warned him about his harassment. There was no abuse of
Yahuffu and the appellant was just using this as an excuse. The complainant was not
ashamed of his sister and had great sympathy for her. The appellant was demanding
Yahuffus passport but he did not have it. As far as he was aware it was still in the
Bari. The complainant thought that it would be better if Yahuffu came to the UK. He
had tried to arrange this with the Embassy but his father was anxious that she stayed
with him in Bangladesh. By the time his father died Yahuffus visa had expired, so he
arranged for her to be cared for and he visited her. Her other brothers and sisters also
visited her. The appellant never visited or telephoned. He was not intending to
provoke the appellant. His aim was the reverse. He was scared and wanted to stay
away from the appellant. The appellants threats were not a joke. The complainant
wanted to calm the appellant down but the appellant swore that he would finish him
off and so the complainant went to the police.
17.

Boyan, the complainants son, gave evidence which it is not necessary to set out. He
was cross-examined.

18.

PC Charlene Deacon gave evidence and said that on the 5th January 2009 she
interviewed the appellant. He appeared to be distraught and concerned about his sister
in Bangladesh. She considered the offence of harassment but this required a course of
conduct. Having discussed it with a senior colleague, it was concluded that the matter
could be resolved without going through the courts. In the presence of the custody
sergeant and another police officer, she advised the appellant to make no further
contact with the complainant and to go to a solicitor if necessary. She advised that any
further incidents could lead to an investigation of harassment.

19.

PC Amelie Bartlett gave evidence and said that she and PC Peveller went to the
complainants address at 10:45am on the 11th January 2009. They saw letters, emails
and text messages. As the appellant had already been warned about his conduct on the
5th January 2009, they went to his home address to arrest him. The appellant did not
seem surprised. He said that the text messages were actually sent from his computer.
The appellant was arrested for harassment. On the way to the police station the
appellant said, Ive stopped now. I sent the last email yesterday. The appellant was
found to be in possession of a copy of one of the letters sent to the complainant and a
letter in sealed envelope that was addressed to the complainant but that had not been
sent.

20.

Evidence was given that the appellant was interviewed and gave an account consistent
with his later evidence. The appellant was offered a caution but refused and was
subsequently charged.

21.

The appellant gave evidence and said that he was divorced and had one child. He
worked as a documentary maker. In 2003 he took over the care of his six nieces and
nephews. The complainant was two years older than him. They both lived in London.
Their mother died several years earlier and their father then took their disabled sister
to Bangladesh. The complainant brought Yahuffu to the UK in 2002 and retuned her
to his father on 2003. When she was in the UK Yahuffu was diagnosed with
schizophrenia, she had the mental age of a young child. His father had remarried.

22.

He went to the Bari on the 17th December 2009 to see Yahuffu. It was his first trip in
thirty years. He had not seen Yahuffu for many years. He described the Bari as
dilapidated, run down, dingy and dirty. He had not expected it to be so bad. He
arrived at 12:45pm and saw the complainant briefly. He had not seen the complainant
for many years. The appellant saw Yahuffu and she looked white and frail. He
assumed that she was being cared for but felt guilty that he had not seen her for so
long. He was very concerned about her physical condition. The appellant had heard
from relatives that Yahuffu was being physically abused by his fathers second wife.
His trip lasted ten days. Upon his return to the UK he was concerned about how he
could get Yahuffu back to the UK so that he and his nephews and nieces could care
for her. Her right to re-enter had expired as she had lived overseas for more then two
years, he did not know her date of birth and did not have any information abut her. He
knew that she had hospital records in the UK and that Tower Hamlets and the police
had been involved with her, but thought that the first thing was to get her date of birth
and her passport.

23.

He decided to communicate with the appellant and sent the letter of the 4th January
2009. After receiving the letter Boyan telephoned the appellant, and kept on
telephoning him, to get him to sign the letter. The appellant said that he would sign
the letter in front of police officers. The appellant went to the police station but the
police were very bemused. The appellant could not work out how to get his sister to
the UK and how to get her passport and date of birth. The complainant was
deliberately obstructing him as he did not want anyone to find out how she was stuck
in Bangladesh. He thought that the complainant was reluctant to hand over the details
for Yahuffu because he was claiming disability allowance in her name. The appellant
sent the letter to the complainant because he wanted to care for Yahuffu in the UK or
Bangladesh. The appellant did not threaten to kill him whilst on the phone but he did
scream at him and swear.

24.

PC Deacon spoke to the appellant on the 5th January 2009. The appellant was taken to
the police station and kept there for twelve hours. The police told him that they were
taking no further action and suggested that he spoke to a solicitor. He was not warned
about his future conduct or that it could amount to harassment if he did it again. He
was released for the police station and later he wrote another letter. He sent the letter
by recorded delivery. He had been finding it difficult to confirm Yahuffus date of
birth and he believed that the complainant would know it. He asked Yasin Aziz to ask
Boyan for it. Boyan had said that they had decided not to tell him. This made the
appellant frustrated, not angry. He thought the complainant wanted him to react and
so he decided to write the second letter. The appellant wrote another letter but did not
know if it was delivered. The appellant did not believe that the complainant was
scared of him. When the appellant referred to his rearranging his face he was simply
expressing anger and frustration. He regarded the text messages sent by the
complainant as provocative.

25.

In cross-examination he said that his sister Salma had visited Bangladesh twice and
told him that the complainant was visiting frequently and living with their fathers
second wife. Salmas last visit was in July 2008 and she told him that he should go
and see Yahuffu. He went in December 2009 having seen a photograph of Yahuffu.
He accepted that the complainant was Yahuffus primary carer and that the
complainant sent money out but the money, said the appellant, was not for her care.

26.

Shahida Aziz, the appellants niece, gave evidence and said that she had lived with the
appellant all of her life. There was bad feeling between the appellant and the
complainant. She did not believe that the complainant would ever threaten violence.
She said that the appellant was very distressed when he came back from Bangladesh
and could think of nothing but his sister. She had seen the first letter before it went to
the complainant. She called her uncle the complainant weak and pathetic. She
insisted that the appellant threatened no violence. She said that the complainant was
playing the victim. On the 9th January 2009 she had been at the appellants house
with other family members as it was the appellants birthday. She telephoned the
complainant. His tone was very quiet. He said that he was on his way to the Mosque
and that he would call her back. He then sent her a number of text messages. She
replied to the complainant. She told him that he was lying and questioned what he had
said. She showed the text messages to the appellant and other family members. She
regarded the text messages sent by the complainant to her as provocative.

The Protection from Harassment Act 1997

27.

Section 1 of the Act headed Prohibition of harassment reads, as amended:

(1)

A person must not pursue a course of conduct

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to
harassment of the other.
(1A)
(a)

A person must not pursue a course of conduct

which involves harassment of two or more persons, and

(b) which he knows or ought to know involves harassment

of those persons, and
(c) by which he intends to persuade any person (whether or
not one of those mentioned above)
(i) not to do something that he is entitled or required
to do, or
(ii) to do something that he is not under any
obligation to do.
(2) For the purposes of this section, the person whose course
of conduct is in question ought to know that it amounts to or
involves harassment of another if a reasonable person in
possession of the same information would think the course of
conduct amounted to or involved harassment of the other.
(3) Subsection (1) or (1A) does not apply to a course of
conduct if the person who pursued it shows

(a) that it was pursued for the purpose of preventing or

detecting crime,
(b) that it was pursued under any enactment or rule of law
or to comply with any condition or requirement imposed by
any person under any enactment, or
(c) that in the particular circumstances the pursuit of the
course of conduct was reasonable.
28.

Section 2 creates the offence of harassment:

1) A person who pursues a course of conduct in breach of
section 1(1) or (1A) is guilty of an offence.
(2) A person guilty of an offence under this section is liable
on summary conviction to imprisonment for a term not
exceeding six months, or a fine not exceeding level 5 on the
standard scale, or both

29.

Section 3 creates a civil remedy. It is important in the appeal because cases which we
shall have to look at later in the judgment were civil not criminal cases. Section 3(1)
reads:
(1) An actual or apprehended breach of section 1(1) may be
the subject of a claim in civil proceedings by the person who is
or may be the victim of the course of conduct in question.
Section 3 also provides that is an offence to breach an injunction granted under
section 2.

30.

We have already set out section 4, headed, as we have said: Putting people in fear of
violence. The word harassment does not appear in section 4.

31.

Section 5(1) and (2) provide:

(1) A court sentencing or otherwise dealing with a person
(the defendant) convicted of an offence may (as well as
sentencing him or dealing with him in any other way) make an
order under this section.
(2) The order may, for the purpose of protecting the victim or
victims of the offence, or any other person mentioned in the
order, from . . . conduct which
(a)

amounts to harassment, or

(b)

will cause a fear of violence,

prohibit the defendant from doing anything described in the

order.

32.

Section 7 reads:
(1) This section applies for the interpretation of sections 1 to
5A.
(2) References to harassing a person include alarming the
person or causing the person distress.
(3)

A course of conduct must involve

(a) in the case of conduct in relation to a single person (see

section 1(1)), conduct on at least two occasions in relation to
that person, or
(b) in the case of conduct in relation to two or more persons
(see section 1(1A)), conduct on at least one occasion in relation
to each of those persons.
(3A) A person's conduct on any occasion shall be taken, if
aided, abetted, counselled or procured by another
(a) to be conduct on that occasion of the other (as well as
conduct of the person whose conduct it is); and
(b) to be conduct in relation to which the other's
knowledge and purpose, and what he ought to have known,
are the same as they were in relation to what was
contemplated or reasonably foreseeable at the time of the
aiding, abetting, counselling or procuring.
(4)

Conduct includes speech.

(5) References to a person, in the context of the harassment

of a person, are references to a person who is an individual.
Ingredients of the offence against section 4(1) charged against the appellant
33.

There is no dispute that the prosecution had to prove and had proved that there had
been a course of conduct on the part of the appellant.

34.

The prosecution had to prove that the course of conduct had caused the complainant
to fear on at least two occasions that violence would be used against him. The
appellant disputed that the complainant feared, and had been caused to fear, that
violence would be used against him.

35.

The prosecution then had to prove that the appellant knew or ought to have known
that his course of conduct would cause the complainant to fear violence on each of
those occasions. This was also in dispute.

36.

The jury must have been sure that these ingredients had been proved.

37.

It is submitted on behalf of the appellant that additionally the prosecution had to prove
that the course of conduct amounted to harassment. This point was not taken at trial.
Given the definition of harassment in section 1 and given that by virtue of section 7
References to harassing a person include alarming the person or causing the person
distress, proof of the offence against section 4 would seem necessarily to involve
proof of harassment within the meaning of section 1. But, so it is submitted, the courts
have added further ingredients to the definition of harassment in section 1 and the
prosecution must therefore prove those additional ingredients. This argument, so it is
said, was accepted by another Division of this Court in Curtis and, so it is said, we are
bound by Curtis.

38.

It is this argument which led us to grant leave to appeal. We look later in this
judgment as to what those added further ingredients are said to be.

39.

If the prosecution prove the necessary ingredients then it is a defence for the appellant
to show on the balance of probabilities that the pursuit of his course of conduct was
reasonable for the protection of himself or another or for the protection of his or
another's property. The appellants defence was that he pursued the course of conduct
in order to protect his sister. The course of conduct the pursuit of which the appellant
must show is reasonable is the course of conduct which caused the complainant to
fear that violence would be used against him on at least two occasions and which the
appellant knew or ought to have known would cause the complainant to fear violence
on each of those occasions.

40.

Given the violent nature of the threats, the appellant would have faced an uphill task
in showing that it was reasonable to purse the course of conduct which he did. It is
difficult to see how it is reasonable to threaten violence of the kind threatened by the
appellant in this country in order to protect Yahuffu in Bangladesh from the (alleged)
conduct of the complainant.

Lesser offence
41.

As we have seen, section 4(5) provides that if on the trial on indictment of a person
charged with an offence under this section the jury find him not guilty of the offence
charged, they may find him guilty of an offence under section 2.

42.

In the instant case the judge left the section 2 offence to the jury should they acquit
the appellant of the section 4 offence and directed them about the ingredients of the
section 2 offence.

Curtis
43.

We take the facts from the Criminal Law Review Report [2010] Crim. L.R. 638:
C was convicted of putting a person in fear of violence by
harassment (Protection from Harassment Act 1997 s.4(1)) and
causing danger to road users (Road Traffic Act 1988 s.22A(1)).
The prosecution was based on six incidents [over a period of
some 9 months] which occurred while C and the complainant
[both police officers] were living together. It was alleged that C
followed a course of conduct in which he used or threatened

violence against the complainant which caused her to fear that

violence would be used against her and that C knew or ought to
have known that his course of conduct would cause her so to
fear. In one incident C and the complainant were travelling in a
car; the complainant said that while she was driving at about
60mph, C pulled the handbrake putting the car into a skid. C
accepted that there were a few sporadic incidents in the course
of a volatile relationship, but denied that there was any nexus or
connection with the incidents which allowed them to be
described as a course of conduct. There were arguments
because C conducted long telephone conversations with his
wife. The complainant thought that he felt guilty about leaving
his wife and said that he was jealous and possessive. His
behaviour was bad when he had been drinking. The judge,
while rejecting a submission of no case to answer, referred to
the insecurity on both sides and that both were being
somewhat childish there appear to have been a series of
domestic disagreements which have arisen. Neither may have
acted in an exemplary fashion in relation to each of them.
44.

The Court, presided over by Pill LJ, quashed the convictions.

45.

Pill LJ, having set out the facts and the arguments, said the course of conduct
referred to in section 4(1) is a course of conduct which amounts to harassment. It
followed that the prosecution had to prove that the defendant had harassed the
complainant. Pill LJ said:
20. 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).

46.

The Court is here giving three reasons for the conclusion that the prosecution has to
prove that the defendant had harassed the complainant, all three of which are relied
upon by Miss Jung.

47.

First, the Court is saying that the words course of conduct in section 4(1) is a course
of conduct which amounts to harassment within the meaning of section 1. We
respectfully doubt whether the words course of conduct in section 4(1) have to be

interpreted in this way. Secondly, the court was influenced by the title of the Act.
However the title of the Act refers to both harassment and similar conduct.
Additionally section 5(2) (paragraph 31 above), not referred to by the Court, draws a
distinction between conduct which amounts to harassment and conduct which will
cause a fear of violence. Thirdly the Court supports the conclusion by the existence of
the provision enabling the jury on a trial on indictment, to find a defendant guilty of
an offence under section 2, as an alternative, on a charge under section 4. It could
perhaps be said, on the other hand, that if proof of a section 2 offence was a
prerequisite to proving a section 4 offence, a section 2 offence would be an
included offence and section 4(5) would not be necessary in the light of section 6 of
the Criminal Law Act 1967.
48.

Having looked at the summing-up, Pill LJ in Curtis went on to say:

23. ... but they were not directed that it was necessary for the
prosecution to establish that the course of conduct amounted to
harassment.

49.

In the next paragraph Pill LJ said:

For the prosecution, Mr Cranmer-Brown submitted that the
prosecution are required to prove only that there was a course
of conduct which causes another to fear. That inevitably
constitutes harassment, he submitted.

50.

Ms Fawcett made the same argument to us.

51.

The argument seems to us to be right (see paragraph 37 above) unless there are
additional non-statutory requirements which the prosecution must prove when a
person is charged with harassment contrary to section 2.

52.

Having made reference to Pratt v DPP [2001] EWHC Admin 483 and Henley1 11
February 2000; [2000] 3 Archbold News, both of which were primarily concerned
with what constitutes a course of conduct, Pill LJ went on to say:
26. The importance of these issues should not, however, deflect
from the need to establish, as was accepted in Pratt, that the
relevant course of conduct amounts to harassment.

53.

However, Pratt was a section 2 case and not a section 4 case.

54.

Pill LJ considered Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224,
an employment case, in which Lord Nicholls said in paragraph 30:
Courts are well able to recognise the boundary between
conduct which is unattractive, even unreasonable, and conduct
which is oppressive and unacceptable. To cross the boundary
from the regrettable to the unacceptable the gravity of the
misconduct must be of an order which would sustain criminal
liability under section 2.

Available on Casetrack

55.

Pill LJ in Curtis continued:

29. To harass as defined in the Concise Oxford Dictionary,
Tenth Edition, is to torment by subjecting to constant
interference or intimidation.
The conduct must be
unacceptable to a degree which would sustain criminal liability
and also must be oppressive. We respectfully agree with the
analysis of Lord Phillips MR, with whom Jonathan Parker LJ
and Lord Mustill agreed, in Thomas v News Group Newspapers
Ltd [2001] EWCA Civ 1233:
[29] Section 7 of the 1997 Act does not purport to provide a
comprehensive definition of harassment. There are many
actions that foreseeably alarm or cause a person distress that
could not possibly be described as harassment. It seems to
me that s.7 is dealing with that element of the offence which
is constituted by the effect of the conduct rather than with
the types of conduct that produce that effect.
[30] The Act does not attempt to define the type of conduct
that is capable of constituting harassment. Harassment is,
however, a word which has a meaning which is generally
understood. It describes conduct targeted at an individual
which is calculated to produce the consequences described in
s.7 and which is oppressive and unreasonable. The practice
of stalking is a prime example of such conduct.

56.

We should add that section 3 which creates the civil remedy requires proof of an
actual or apprehended breach of section 1.

57.

A little later Pill LJ in Curtis said:

In the present case, the jury would have been entitled, if they
saw fit, to conclude that, over the course of the relationship, the
appellants conduct was deplorable and worse than that of [the
complainant]. The incidents were far from trivial and
significant force was on occasion used. However, we cannot
conclude that, in this volatile relationship, the six incidents over
a nine month period amounted to a course of conduct
amounting to harassment within the meaning of the statute.

58.

It could be said with some force that the Court in Curtis reached the conclusion which
it did on the conventional ground that the prosecution had failed to prove a course of
conduct. On the other hand the Court is making it very clear that it is necessary for the
prosecution in a section 4 case to establish that the course of conduct amounted to
harassment within the meaning of section 1. Whilst we might have been inclined to
conclude that the conclusion that it is necessary for the prosecution in a section 4 case
to establish that the course of conduct amounted to harassment within the meaning of
section 1 was obiter, we feel unable to do so, particularly in the light of Widdows
[2011] EWCA Crim 1500. The judgment in that case was handed down on 21 June
2011, seven days after the hearing of the appeal in this case. We are very grateful to

Professor Ormerod for drawing it to our attention. We have decided that is not
necessary to call for further argument.
59.

Widdows was convicted of putting a person in fear of violence by harassment

contrary to section 4 of the Protection from Harassment Act 1997. He was also
charged with two counts of rape, of which he was acquitted.

60.

We take the facts from the judgment of Pill LJ:

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.

61.

A little later in the judgment Pill LJ said:

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.

62.

Pill LJ went on to say that Curtis was indistinguishable. He continued:

29. 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. 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.

63.

Again it could be said with force that Widdows is deciding no more than that the
prosecution had failed to prove a course of conduct. But in Widdows Pill LJ also said:

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
64.

Miss Jung submits that we should follow Curtis (and now Widdows) and decide that a
prosecution under section 4 requires proof of harassment and that the prosecution
must therefore prove, in addition to the statutory requirements, the requirements
identified in the civil cases to which Pill LJ referred.

65.

The decision in Curtis attracted a critical commentary from Mr James Richardson QC

in the Criminal Law Week, Issue 20, 2010 page 2:
This decision is best explained by the courts obvious disdain
for the criminal law being brought to bear on six incidents in a
relationship between a couple (both police constables) who
lived together for about 18 months, where the incidents were
spread over a nine month period, and consisted of spontaneous
outbursts of ill-temper and bad behaviour, with aggression on
both sidesinterspersedwith considerable periods of
affectionate life (see [32])
Whilst the courts approach may be understandable, its analysis
of the legal position is unsustainable. If it had ruled that no
reasonable jury could have concluded that six incidents spread
out over nine months could amount to a course of conduct,
that would have been one thing, but it did not do so. All the
judge had done wrong was to omit to direct the jury that the
course of conduct pursued by the defendant had to amount to
harassment. Since, however, the jury by their verdict found
that the defendant had pursued a course of conduct that had put
the complainant in fear of violence on at least two occasions,
they must inevitably have found that he pursued a course of
conduct that amounted to harassment, as the Act specifically
states that harassing a person [includes] alarming the person or
causing the person distress (s.7(2) Archbold 2010 19-277g).
It is inconceivable that the jury could have concluded that the
complainant was caused to fear violence at the hands of the
defendant without being caused either alarm or distress. The
Act is constructed on the basis that the greater includes the less,
which is why a conviction of the lesser offence of simple
harassment is an available alternative to an allegation under
section 4 (s.4(5)). A person who pursues a course of conduct
(question of fact) which amounts to harassment of another
(question of fact but includes alarming or distressing the other)
is guilty of the basic offence (s.2). If his course of conduct
causes his victim not just to be alarmed or distressed, but to
fear violence on at least two occasions, then he is guilty of the

aggravated offence (s.4). Like it or not, that is what the jury

were satisfied of in this case.
66.

The problem with this criticism is that it does not deal with the additional nonstatutory requirements to which Pill LJ referred.

67.

Professor Ormerods commentary in the Criminal Law Review was slightly sceptical
rather than critical. Professor Ormerod thought that the Courts conclusion sits more
comfortably with the fact that s.2 is an included alternative offence. He does not find
the tests to be found in the civil cases very helpful. He wrote:
The simple offence of harassment under s.2 of the Act requires,
inter alia, (1) a course of conduct (2) which must amount to
harassment of another. The more serious offence under s.4
requires that the victim is caused, by the course of conduct, to
fear violence on at least two occasions. The court concludes
that the s.4 offence requires proof also that the course of
conduct has to amount to harassment. Section 4 does not
expressly require that the course of conduct which causes the
victim to fear violence constitutes harassment. Section 4
contains the stricter limitation that the course of conduct has to
cause fear (it being insufficient even to frighten the victim as to
what might happen (Henley)). Arguably s.4 represents a distinct
offence focused not on harassment, but on the graver wrong of
creating fear of violence. However, the court's preferred
interpretation is one which construes s.4 in the broader context
of the Act and sits more comfortably with the fact that s.2 is an
included alternative offence. Furthermore, it is consistent with
the approach that seems to have been taken in previous
authorities holding that the victim has been put in fear of
violence by harassment , such as Patel [2004] EWCA Crim
3284; [2005] 1 Cr. App. R. 27 (p.440) (emphasis added).
Holding that the s.4 offence does not also require the course of
conduct to constitute harassment would only be of practical
significance if there are circumstances in which two or more
incidents with a sufficient nexus caused a fear of violence
without also being harassing. That would seem unlikely. On the
relationship between ss.2 and 4 see generally the critique by E.
Finch, Stalking the Perfect Stalking Law: an Evaluation of the
Efficacy of the Protection from Harassment Act 1997 [2002]
Crim. L.R. 703.
In this case, the jury received adequate direction on the need for
a course of conduct, with the judge mentioning it no fewer
than 29 times. The course of conduct must involve conduct on
two or more occasions and there must be some nexus between
them. The question of whether the incidents are sufficiently
related to constitute a course of conduct has given rise to
numerous appeals: Patel; Pratt v DPP; Lau v DPP [2000]
Crim. L.R. 580 DC; Hills [2001] 1 F.L.R. 580; [2001] Crim.
L.R. 318 CA (Crim Div). That question turns on the facts of

each case. Although there is no need for the events to be close

in time or similar in nature, these are factors which are relevant,
with others, in determining whether there is a sufficient nexus.
In this case the Crown alleged that the nexus was that the
complainant stood up to C when he threatened or used
violence. Is there really any link here beyond the fact that the
incidents involve the same victim?
The judge did not direct on the need for the course of conduct
to amount to harassment. There is no statutory definition of
that term. The failure to define in the 1997 Act was intentional;
the Act was designed to tackle stalking, which can take many
forms, some of them wholly unpredictable. In addition, the
word harassment had been used in the Public Order Act 1986
and was familiar to the criminal courts. In this case, the court
rejected the argument that by causing V fear by his course of
conduct C had harassed her. Having referred to civil authorities
and the dictionary definition, the court concludes that the
additional element of harassment requires proof that the
conduct must be unacceptable to a degree which would sustain
criminal liability and also must be oppressive (at [21]). With
respect, it is not clear that this assists. There is, surely, an
element of circularity in saying that a course of conduct
amounts to a crime of harassment if it is so unacceptable to be
criminal. Nor, it is submitted, is it tremendously helpful to
define the concept by reference to whether it is oppressive and
unreasonable.
The principal lesson of this case seems to be about the correct
selection of charges. There are numerous types of offence
where prosecutors might be tempted to try to elevate what look
like plain assaults into something more. The same problem
arises with some prosecutors trying to charge public order
offences such as affray for what are mere assaults. Section 4
may be wider than common assault in terms of mens rea and
because there is no need for the fear of immediate violence, but
it has other restrictions.
Note also that whereas in this case numerous incidents are
relied on and there are allegations of other offences, it is
permissible to rely on the facts of those other alleged offences
as forming part of a course of conduct amounting to harassment
provided the Crown makes clear the nature of the allegations
(Jones v DPP [2010] All E.R. (D) 230 (Feb)).
68.

We have looked at Patel. As in this case the statement of offence referred to

harassment. Apart from that Patel does not seem to us to help.

69.

Whilst accepting, as we must, that section 1 is so broadly defined that it may be

necessary to import non-statutory requirements into the definition of the offence, we
would, but for Curtis and Widdows, have taken the view that the section 4(1) offence

is a freestanding offence and does not require proof of harassment. It would then
follow that the statement of offence should not refer to harassment.
70.

However, we have reached the conclusion, not without some reluctance, that we must
follow Curtis and Widdows with the result that a prosecution under section 4 requires
proof of harassment and that the prosecution must prove, in addition to the statutory
requirements, the requirements identified by Lord Phillips MR in Thomas v News
Group Newspapers Ltd, which we have set out earlier in paragraph 55.

71.

The first of those requirements is that the conduct must be targeted at an individual.
That requirement, on the facts of this case, adds nothing to what the prosecution had
to, and did, prove.

72.

The second of those requirements is that the conduct must be calculated to produce
the consequences described in section 7 (alarming the person or causing the person
distress). Conduct would, it seems to us, to be calculated to produce the
consequences described in section 7 if the defendant intended to alarm the
complainant or cause him distress (or, perhaps, was reckless as to the consequences).
Section 4 requires proof that the defendant knew or ought to have known that his
course of conduct would cause the complainant to fear violence. The jury in the
present case not having been directed, in accordance with Curtis, that they must be
sure that the defendant intended to alarm the complainant or cause him distress, is the
conviction safe? In our view it is. We take the view, contrary to the submissions of
Miss Jung, that it is inconceivable that the jury (given their other conclusions) would
not have been sure that the appellant intended to alarm or distress the complainant in
order to achieve his stated objective of protecting Yahuffu. Unless he at least alarmed
or distressed the complainant, the appellant would, on his account, have been unable
to achieve his objective.

73.

The third of those requirements is that the conduct must have been oppressive and
unreasonable. The appellants conduct must, on the jurys findings, have been
oppressive. Miss Jung submits that the prosecution must prove that the conduct was
unreasonable. This cannot be right in the light of section 1(3), which provides that the
defendant must show that his conduct was reasonable.

74.

Miss Jung also submits that that the jury would have been entitled to find an absence
of the additional non-statutory requirements because of the alleged provocation on the
part of the complainant. Whilst provocation might possibly be relevant to the issues of
causation and reasonableness, both of which were left to the jury, we do not accept
that it has any further relevance at trial stage.

75.

For these reasons this ground fails.

The refused applications for leave to appeal

76.

The appellant seeks leave to rely on fresh evidence to undermine the conviction.

77.

Miss Jung first took us to two statements, one made by Shomila Begum, one of the
appellants first cousins who lives in Banigazi. She alleges that the complainant is a
criminal, who has sexually abused young girls including Lucky and has stolen
Yahuffus passport. The other was made by a nephew of the appellant, Shakerul

Islam. He also attacks the character of the complainant. The account that they give
reflects the evidence that the appellant gave at trial to undermine the prosecutions
case that the complainant did fear violence and to support the appellants case that his
conduct in communicating with the complainant by letter and email in the way that he
did was to protect his sister and was thus reasonable.
78.

There is no reasonable explanation for the failure to adduce the evidence at trial. The
appellant described to the jury what he understood was happening in Bangladesh if
he wanted to back that up with evidence from Bangladesh then he should have done
that at trial. Nor do we think that it would now be in the interests of justice to
introduce this evidence (for which in any event permission would be required under
the bad character provisions of the Criminal Justice Act 2003) which is not of central
significance to the real issues in the trial.

79.

The appellant seeks also to rely on statements of Ethesham Haque and Yasin Aziz,
respectively the son and nephew of the appellant both of whom were not only
available to attend the trial but, we are told, did so. To the limited extent that the
evidence could be regarded as relevant, it should have been called at trial.

80.

Finally the appellant seeks to rely on two police reports from Pakistan. One is to the
effect that the complainant made an accusation and that the officer went to the place
of occurrence and the appellant gave an account of his sister not being cared for
properly. The other concerned an investigation into an allegation made by Somorun
Nessa (the appellants stepmother) against amongst others the appellant. The report
merely reports what the officer was told by those he saw.

81.

Neither report adds anything of value to the case which the jury had to consider.

Unbalanced and unfair summing-up

82.

It is submitted by Miss Jung, who, as we have said, was not trial counsel, that the
summing-up was unbalanced and unfair in a number of ways. Trial counsel at the
conclusion of the summing-up made only one small comment on the summing-up
when asked by the judge whether he had anything to say about it.

83.

Miss Jung rightly abandoned an argument that the judges behaviour was such as to
deny the appellant a fair trial.

84.

Miss Jung makes a large number of points, only some of which we need to examine.

85.

She submits that it was the main thrust of the defence case that the complainant was a
cunning and manipulative character who had deliberately provoked the appellant into
making threats on paper and that he was playing the victim in order to get the
appellant convicted.

86.

If this was or may have been right then the complainant would not have feared, or
have been caused to fear, that violence would be used against him. That issue was left
fairly and squarely to the jury.

87.

Miss Jung submits that the judge did not refer to a number of matters which tended to
support the appellants case that the jury could not be sure that the complainant

feared, or had been caused by the appellants course of conduct to fear, that violence
would be used against him. She makes reference to the following:
The fact that Nazrul Islam had not at any time phoned his
younger brother to tell him that he did not have the passport or
to speak to him in an attempt to resolve the situation;
The fact that Nazrul Islam wanted all communications (such as
from Shahida Aziz) in written form without any good reason;
The fact that Mr. Haque had no reason to want to kill his own
brother or to make serious false allegations about him;
That Mr. Haque, a man of previous good character, was Mr.
Islams younger brother and that he had never previously been
violent towards him.
88.

We see nothing of merit in this point. The judge did, of course, give a good character
direction.

89.

Miss Jung submits that the judge generally did not pay enough attention in his
summing up to the appellants case. We do not agree.

90.

Miss Jung submits that:

... the learned judge minimised the importance of the defence
case by remarking as follows, at pp.41H-42B of the Summing
Up:
She (Shahida) insisted the defendant threatened no
violence. She said, Nazrul is playing the victim. That is an
expression that I think, it is a matter entirely for you, was
also used by the defendant. What you make of that is a
matter entirely for you.

91.

The appellant had used the word victim in the correspondence with the
complainant. We see nothing wrong with the judges comment.

92.

Miss Jung criticises the way that the judge dealt with the letters and emails, not
mentioning those parts which tended to support the appellants case as to why he
needed to write, namely to ensure the protection of his sister in Bangladesh. We have
read the summing up (see e.g. pages 36, 46 and 48) and that, in our view, is not a
good point.

93.

Miss Jung criticises the fact that the judge used the word sure when she said that the
defence had to make the jury sure on the balance of probabilities. It is true that the
judge did use the word sure on more than one occasion and in the written route to
verdict in this context and it would have been better if she had not. But she also used
the word conclude, think and satisfied in the summing up and explained what
the balance of probabilities meant. The use of the word sure could not possibly
make the conviction unsafe.

94.

Miss Jung makes a general complaint that the judge gave insufficient help about the
defence of reasonableness. Both in her oral and written directions the judge properly
defined the defence and told the jury, as they would have known anyway from
speeches, that the appellant was claiming that he wrote the letters and emails in order
to protect his sister.

95.

Miss Jung also criticised the direction at page 9 that the jury need not be concerned
with the issue of whether the sister had been assaulted or whether she had ever been
abused. This, so it is said, was an important issue with regard to the statutory defence
relied upon by Mr Haque. Almost all of the evidence to support the allegation that the
complainant had mistreated the sister was challenged hearsay in the context of a very
divisive family dispute. The judge in our view was right to invite the jury to
concentrate in the context of the statutory defence on the appellants claim that he
believed that she had been mistreated, a claim which was supported by the contents of
the letters and emails, by the evidence of the appellant and of Shahida Aziz.

96.

Miss Jung criticises amongst other things the fact that at page 32B-C, the judge
summed up that Yahuffu had denied being mistreated. In evidence the appellant in
fact said that although she at first denied everything, she did remember that she had
been assaulted when a nephew who actually witnessed her being struck asked her
dont you remember when Lucky smacked you? The respondent accepts that the
appellant gave this evidence. We note that counsel for the appellant did not raise this
matter with the judge at the end of the summing-up, suggesting that it was not of
importance in the context of the case as a whole.

97.

In conclusion we have read the summing-up and found it to be fair and well balanced
in the context of the issues which the jury had to resolve. The judge sensibly divided
her summing up in such a way that each event was dealt with separately, the jury
receiving a summary of the evidence coming from both parties as it related to each
event. The judge did not simply read from her notebook. She structured the summing
up very well.

98.

It is for these reasons that we rejected the two grounds for which leave to appeal was
sought.