Smith v R.

This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act.

The prosecution followed a frightening incident aboard a Boeing aircraft on a flight from Mumbai to London Heathrow on 25 September 2011. Mr Smith was a passenger on the flight. During the flight he became very disturbed and upset. He wrenched off the remote controls attached to the seats of two neighbouring passengers. He then moved frantically round the aircraft, saying “I need to get off”, and tried to open a back exit door. The doors cannot be opened during flight, but other passengers were not to know that fact and were naturally alarmed. Cabin staff restrained him but he was violent and abusive. He was suspected of being drunk.

Before the trial Mr Smith was examined by psychiatrists on behalf of the prosecution and the defence. He gave the following account. He was on his return with his partner from a holiday in Thailand. In the last 3 days of the holiday he suffered food poisoning with extreme diarrhoea and vomiting. This made him dehydrated. The journey from their resort to Bangkok airport took 17 hours by boat and road, during which he suffered exposure to the sun. At Bangkok airport they had a 2 hour wait before taking a 3½ hour flight to Mumbai.

Mr Smith told the doctors that as the journey progressed he developed feelings of extreme exhaustion, dehydration and sleep deprivation. He also believed that he was suffering from heatstroke. During the process of check-in and boarding at Mumbai he began to have abnormal thoughts. He told his partner that there were terrorists on board who were suicide bombers. His partner told him that he was misinterpreting what he was seeing and tried to calm him down. This was to no avail. Mr Smith became convinced that terrorists were going to detonate bombs by means of the nearby in-seat controls, so he wrenched them from the seats believing that this was necessary to save their lives. When he made his way to the door, he believed that they were still on the ground and that his actions were the only way of saving the aircraft. A voice was telling him that he was 2 feet from the ground.

Both psychiatrists agreed that Mr Smith had been suffering from a psychosis characterised by delusions and hallucinations. The jury accepted that he had been insane within the McNaghten rules and found him not guilty by reason of insanity.

As a result of the jury’s verdict the court had power to require Mr Smith to undergo medical treatment, either as a detainee in a mental hospital or in the community, but the judge decided after hearing evidence from the psychiatrists that this was not necessary or appropriate. Instead he ordered an absolute discharge, which was one of the options available to him under s5(2)(c) of the Criminal Procedure (Insanity) Act 1964.

The doctors were agreed that Mr Smith had suffered a brief reactive psychosis, which is an unusual but recognised medical condition. Such a condition generally resolves itself, leaving the individual able to return to full normal function. That appeared to be the case with Mr Smith. He had made a swift recovery and was showing no sign of current mental illness. Since his condition was now normal, he was in no need of medical treatment.

The doctors could not be certain about what had led to the onset of the psychosis, but on Mr Smith’s account there had been a combination of unusual circumstances which could have triggered it – the stressful circumstances which preceded the flight, his physical illness, dehydration, exhaustion and the effects of the sun.

In imposing the restraining order the judge referred to the absence of any definite explanation for the psychosis and he continued:

“My concern is that your behaviour on this occasion, no doubt due to the psychosis, was pretty extreme and in any aircraft that would be extremely concerning for anybody around, and I want to make sure that should there be another episode of this, and one very much hopes there won’t be, that it’s not going to occur in these sort of circumstances. What I am going to do in those circumstances I consider it is necessary to make a restraining order not to travel on any domestic or international commercial airline. I am not going to make it without limit of time because that would be entirely disproportionate in my view. I am going to make it for what I consider to be a sufficient length of time to be satisfied that these problems are not going to recur. I am going to make it for a period of 3 years.”

The structure of the Act is that it begins with a general prohibition of harassment: s1. Criminal sanctions for breaching the prohibition are provided by s2. A civil remedy is provided by s3. The Act goes on to provide for preventive orders. Section 5 provides for restraining orders on conviction. Section 5A provides for restraining orders on acquittal. Section 7 is an interpretation section.

Section 1 provides (omitting parts which are immaterial for present purposes):

“(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.

(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.”

Section 7 provides:

“(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.”

Section 2 makes it a criminal offence for a person to pursue a course of conduct in breach of s1(1).

Section 3 provides that an actual or apprehended breach of s1(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.

Apart from what is in s7, the Act contains no definition of harassment. The lack of a clear definition prompted criticism by commentators at the time of the legislation.

The purpose of the legislation was to provide new criminal and civil remedies for the activity generally described as “stalking”. That is apparent from a consultation paper “Stalking – The Solutions: A Consultation Paper”, published by the Home Office on 9 July 1996. There had been some well publicised cases of stalking which did not fall easily within any criminal offence or tort. In May 1996 a labour peer, Lord McIntosh, introduced a Bill on stalking into the House of Lords. It did not have government support and it did not progress beyond the House of Lords, but it led the government to publish the consultation paper. The consultation paper stated that the government proposed to deal with the menace of stalking through a combination of civil and criminal measures. It set out the proposed new measures and invited comments. The closing date for comments was 9 September 1996. The government’s response to the consultation was set out in a further paper, “Stalking, Harassment and Intimidation and the Protection from Harassment Bill”, research paper 96/115, published on 13 December 1996. The Bill was introduced into the House of Commons a few days later and received Royal Assent on 21 March 1997.

The government acknowledged (96/115, page 22) that a number of commentators had expressed concern about the wide range of conduct which could in theory be rendered criminal by virtue of the offences which were to be created by the Bill, and that it could be argued that the Bill lacked sufficient clarity or precision. Its response was that “a narrow definition would encourage determined harassers to find and exploit loopholes”. The paper added that in practice “much will depend on the approach adopted by the police and the Crown Prosecution Service in dealing with cases which are reported to them”.

The current edition of Smith and Hogan’s Criminal Law (2011), page 696, supports the view, expressed in an article written by Celia Wells at the time of the legislation, that the Act follows a pattern all too common in recent years of addressing a narrowly conceived social harm with a widely drawn provision, often supplementing and overlapping with existing offences: [1997] Crim LR 1 at 2.

Defending the broad definition in the House of Commons, the Home Office minister said (HC, Col 827, 17 December 1996):

“Stalkers do not stick to activities on a list. Stalkers and other weirdos who pursue women, cause racial harassment and annoy their neighbours have a wide range of activity which it is impossible to define.”

15 years on, the Act was amended by s111 of the Protection of Freedom Act 2012 to include a new s2A which creates an offence of stalking. The impossible has become possible and has been done. The offence created by s2A is additional to the offence under s2, although the conduct which constitutes an offence under s2A is, by its definition, necessarily an offence under s2 and is, moreover, the paradigm case at which the offence under s2 was aimed. As Home Office circular 018/2012, “A Change to the Protection from harassment Act 1997; introduction of two new specific offences of stalking”, accurately states at paragraph 17, “an offence of stalking can only be established where an offence of harassment has occurred”.

In introducing the 1997 legislation the government recognised that clause 1 (which became s1 of the Act) was widely drafted and that it would be for the courts to construe its proper scope. It stated (96/115, page 36):

“Clause 1 is widely drafted and, for example, the activities of political activists, market researchers, telephone sales companies, evangelical religious organisations and journalists as well as activities such as begging, racial or sexual harassment, harassment by neighbours or harassment in the workplace could be covered by the Bill…The courts will look at each case individually on its merits and in time case law may offer more guidance on the type of conduct and the particular circumstances which might be covered by clause 1.”

This leads to the question how the courts should respond when interpreting legislation drafted in terms which, on a natural reading, may appear to catch conduct far wider than the mischief which Parliament had been invited to address. The decision in Pepper v Hart [1993] AC 593 was controversial and the courts have been generally cautious about looking at things said in Parliament as an aid to construction.

Lord Wilberforce said that consideration of the purpose of an enactment is always a legitimate part of the process of interpretation: Fothergill v Monarch Airlines Ltd [1981] AC 251, 272. The extent to which the courts should apply the “mischief” approach must be a matter of judgment in the individual case. There is a case for saying that the courts should, where they think it appropriate, look more readily at ministerial statements which may help to identify the mischief which Parliament was invited to regard as the object of the legislation, and should not be inhibited from construing it accordingly, even where a natural reading of seemingly wide words might warrant a wider construction.

In construing s1 of the 1997, Act it is right to have regard to the type of mischief at which it was aimed. It is also right to have regard to what the ordinary person would understand by harassment. It does not follow that because references to harassing a person include alarming a person or causing a person distress (s7(2)), any course of conduct which causes alarm or distress therefore amounts to harassment (Thomas v News Group Newspapers [2001] EWCA Civ 1233 at [29]). So to reason would be illogical and would produce perverse results. A person who habitually drives too fast in a built up area may cause alarm to other road users, but conduct of that sort was not what Parliament was invited to consider and would not fall within the ordinary understanding of what is meant by harassment. In Curtis [2010] EWCA Crim 123 the court referred to the definition of the word “harass” in the Concise Oxford Dictionary, 10^th edition, as meaning to “torment by subjecting to constant interference or intimidation.” Stalking is the prime example of such behaviour, but not the only possible form. It may occur, for example, between neighbours or in the workplace (Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 at [18]). Essentially it involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress (Thomas v News Group Newspapers at [30]).

Section 5 deals with restraining orders on conviction. It provides:

“(1)

A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence…may…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.

(3)

The order may have effect for a specified period or until further order.

(4)

The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.

(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).

(5)

If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

(6)

A person guilty of an offence under this section is liable –

(a)

on conviction on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both, or

(b)

on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both.

(7)

A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.”

Section 5A is the provision under which the present order was made. It provides:

“(1)

A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.

(2)

Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one.

…

(5)

A person made subject to an order under this section has the same right of appeal against the order as if -

(a)

he had been convicted of the offence in question before the court which made the order, and

(b)

the order had been made under section 5.”

The first problem with the order made by the judge is that it did not identify any victim whom it was intended to protect. If Mr Smith had been convicted, a restraining order under s5 would have had to name those whom the order was intended to protect: s5(2). Any person named in the order would then have been entitled to be heard on an application to vary or discharge the order. Section 5A incorporates most of the provisions of s5, but not s5(2) for the obvious reason that there has not been an offence and therefore the language of s5(2) could not apply. However, it could not be rationally supposed that an order under s5A therefore need not identify the person, or possibly group of persons, whom the order is intended to protect.

The omission of the identification of any potential victim in the order made by the judge is not a matter of mere formality. The need for identification of the person who is to be protected reflects the underlying purpose of the provision. It is for the protection of a particular vulnerable person, or possibly an identifiable group of vulnerable persons. This order was for the protection of the world at large, or whoever might happen to be on any aircraft on which Mr Smith might travel.

There are other fundamental problems with the order. Since the purpose of such an order is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of s1. Pursuit of a course of conduct requires intention. There was no basis for finding that there was a likelihood of intentional conduct by the defendant involving mental or physical oppression of the victim by persistent interference or intimidation. We recognise that a person might, by reason of a mental illness, set about a course of conduct amounting to harassment. If so, the fact that the underlying cause of the conduct was a mental illness would not prevent it from amounting to harassment, by reason of s1(2): SPC [2001] EWCA Crim 1251. But that is another matter. Mr Smith had no intention of doing anything which would amount to harassment of anyone.

Further, the power to make an order under s5A is circumscribed by the important words “necessary…to protect a person from harassment by the defendant”. The word “necessary” is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful, on pain of imprisonment, is an interference with that person’s freedom of action which could be justified only when it is truly necessary for the protection of some other person.

Section 5A was inserted into the 1997 Act by s12(5) of the Domestic Violence, Crime and Victims Act 2004. That Act followed a government white paper entitled Safety and Justice: The Government’s Proposals on Domestic Violence, CM 5847. The paper noted:

“52.

The Protection from Harassment Act 1997 was designed as legislation to tackle the problem of stalking. In practice it has been used mainly for domestic violence and inter-neighbour disputes.”

The paper observed that the power to make restraining orders had been particularly useful in domestic violence cases, as it provided for the continuing safety of the victim, and it suggested that there were strong arguments for extending the power to make such orders. The paper continued:

“56.

The government therefore proposes to:

…

Make restraining orders available to criminal courts when there is insufficient evidence to convict but the court considers that it is necessary to make a restraining order to protect the victim.”

The power is not confined to domestic violence cases, but the paper provides an indication of its intended usage, and it is limited to cases where the order is judged to be truly necessary for the protection of a victim.

In the present case the judge imposed the order as a protection against the possible consequences of Mr Smith suffering a further onset of a transient illness from which he had made an apparently full recovery. All other points aside, that fell far below the necessity test. In effect, the judge used the section as if it were an adjunct to the Mental Health Act as a means of protecting the public against the possible effects of a possible recurrence of a mental illness. That is not the function of the section. The effect of the order was to impose an unlawful and unjustifiable restraint on Mr Smith’s ability to live a normal part of his life.

We began by commenting that this was a most unusual case. In fairness to the judge, it should be emphasised that he did not have the same opportunity as this court has had to examine the law in detail. However, the order which he made was flawed for the reasons identified: there was no identified victim, there was no proven risk of harassment within the meaning of the Act and the order did not satisfy the necessity criterion which is fundamental to s5A.

For those reasons this appeal will be allowed and the restraining order will be quashed.