APPEAL BY WAY OF CASE STATED FROM
THE INNER LONDON CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE THOMAS
and
MRS JUSTICE DOBBS
Between :
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Lincoln Crawford |
Appellant |
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Crown Prosecution Service |
Respondent |
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Mr Anthony Speaight QC and Miss A Dhir for the Appellant
Mr Miles Bennett (instructed by Crown Prosecution Service) for the Respondent
(No counsel appeared in either court below)
Hearing dates: 14/15 November 2007
Judgment
Lord Justice Thomas:
Introduction
On 27 September 2005 the appellant was charged with two offences of harassment. The first alleged that between 7 January 2005 and 26 September 2005 he pursued a course of conduct which amounted to the harassment of Miss Bronwen Jenkins, his former wife; the second charge alleged that between 13 June 2005 and 26 September 2005 he pursued a course of conduct which amounted to harassment of Mr Dominic Buttimore, a man with whom Miss Jenkins commenced a relationship during 2005 and who frequently visited the former matrimonial home at which Miss Jenkins continued to live.
The matter came on for trial at the Highbury Corner Magistrates’ Court; the trial lasted 9 days. The appellant was convicted and given a conditional discharge for 18 months on terms that he did not continue to harass Miss Jenkins and Mr Buttimore. He appealed against that decision to the Crown Court in Inner London. The appeal hearing lasted 11 days before His Honour Kenneth Machin QC (sitting as a Deputy Circuit Judge) and two magistrates. On 28 September 2006 the Court delivered a judgment dismissing the appeal.
The appellant wished to appeal by way of case stated to this court. That application was made promptly on 6 October 2006. He had no response to his request until 14 November 2006, when the Crown Court wrote to say that the judgment should be the case stated. However, the Crown Court failed to do anything further. Eventually, in February 2007, the appellant who had drafted grounds of appeal, issued proceedings for judicial review in respect of the failure of the Crown Court to state a case. After issue of those proceedings, the matter was referred to Sullivan J, who observed on 1 March 2007, that he saw no reason in principle why the judgment of the Crown Court should not stand as a case stated with the addition of the questions of law on which the decision of this court was sought by the appellant.
On 4 April 2007, His Honour Kenneth Machin QC signed a case stated which simply provided that the court’s judgment and the appellant’s grounds of appeal would stand as the case stated. It was agreed that the matter would proceed on that basis prior to the hearing before this court. For reasons which will become apparent, this procedure proved to be highly unsatisfactory.
The reporting restrictions
The Magistrates’ Court and the Inner London Crown Court imposed an order under s. 39 of the Children and Young Persons Act 1933 prohibiting any publication of matters in the proceedings that might lead to the identification of the children. As a result there has been no publication of matters relating to the proceedings and the appellant’s conviction. At the outset of the hearing, we heard a short argument on the continuation of the order; the Court of Appeal (Criminal Division) was to hear argument in R v Croydon Crown Court [2008] EWCA Crim 50 on a similar issue within a matter of days. We therefore agreed to continue the order pending the decision of the Court of Appeal under the court’s inherent jurisdiction (as set out in In Re S (a child) [2004] UKHL 47 ([2005] AC 593) and under s. 39 and then to hear argument in the light of that decision.
The facts found in relation to the offences
The approach in this court
A statement of case for the opinion of this court usually sets out the facts with clarity, the question(s) of law and the view that the court has formed on those questions. Ordinarily the court should be able to determine the question of law by reference to the facts as found in the case stated, but from time to time, the court has to remit the case because the findings are unclear or insufficient, although usually this can be avoided by the advocates in the case agreeing to place additional material before the court to supplement the facts as found.
The judgment delivered by the Inner London Crown Court was not delivered in a form in which the facts were found so that the decision of this court could be given on the point of law arising. Nor did it contain even a chronological account of the matters that formed the basis of the facts on which the conviction was based. It would plainly have been contrary to the interests of justice to remit the matter to the court as such a considerable time had elapsed and the hearing had taken such a time at the court. It therefore became necessary for the parties to provide to the court a bundle of documents, arranged in chronological order, and a detailed chronology cross-referencing the findings on the various matters, as many of the findings in respect of the same point were set out in different parts of the judgment of the Crown Court. I am particularly grateful to counsel for assuming the burden and it has enabled me to set out the facts that the Crown Court had in fact found.
The charges contained no particulars of the acts alleged to constitute the course of conduct which amounted to harassment; however, the judgment made clear that the Crown Court considered that there were three “heads of alleged harassment”:
The writing of letters, referred to in the judgment as “correspondence”
The observations of the house and instances of the following by the appellant of Miss Jenkins.
The taking of photographs.
Although it was helpful to look at the early correspondence separately, treating the observations on the house, the instances of following by the appellant and the taking of the photographs as separate headings was not the easiest way of following the factual findings made. It is therefore necessary to set out, as best I can, the facts in broad chronological order in relation to the matters charged, as discerned from the judgment of the Crown Court and the documents provided to us.
It is helpful first to refer briefly to the background and then to an incident that occurred in January 2005; that incident fell within the period where the offence against Miss Jenkins was charged, but was not found to constitute any part of the conduct amounting to harassment.
The background: 1999 - 2004
On 5 June 1999 the appellant, a barrister, married Bronwen Jenkins, a solicitor with Irwin Mitchell. They had been together for sometime prior to that. The matrimonial home was in a street to which I will refer as SM Road. It overlooked a canal at the rear; the appellant kept a boat moored on the canal and continued to do so during 2005. There were two children of the marriage, E born on 7 January 1999 and M born on 5 March 2001. In about January 2003 Miss Jenkins commenced an affair with a partner in Irwin Mitchell, Mr Grahame Codd.
On 3 April 2003 divorce proceedings were commenced by Miss Jenkins; these became highly acrimonious:
On 10 April 2003, the court made a non-molestation order against the appellant with a power of arrest.
On 19 June 2003, the court made an order that the appellant leave their matrimonial home in SM Road.
There were bitterly contested ancillary applications; in October 2004 a court made an order that Miss Jenkins was to give the appellant 29% of the value of the former matrimonial home (which was £400,000). Miss Jenkins appealed; the appeal was dismissed on 6 April 2005 and she was ordered to pay 80% of this appellant’s costs.
The children were ordered to reside with Miss Jenkins, but the appellant was given regular contact with the children. He regularly took the children to school and had the children to supper, often up to three times a week.
On 2 April 2004, a decree absolute was pronounced.
The January 2005 incident and the position until 23 May 2005
The first matter originally relied upon in relation to the offence against Miss Jenkins with which the appellant was charged occurred on 8 January 2005. Although the findings of the Crown Court are not as clear as they might be, it is sufficient to state the following:
Miss Jenkins took the children to her office to collect her mobile telephone. When she got there she saw a text from the appellant saying, “Let me have the children”. She went downstairs with the telephone. She then went out with the children and saw the appellant. One of the children stayed with the appellant and the other came back with her. She asked the security guard to go out and the security guard asked the appellant to give the child to her. The guard took the child from the appellant and gave the child to Miss Jenkins. The appellant observed that she was “shagging up” (sic) with a white man.
It appears that Miss Jenkins believed that the appellant was snatching the younger of the children, M, and that E was crying. The court found that Miss Jenkins was mistaken but not lying in this respect. Miss Jenkins went to the police station and reported the matter to the police.
Between then and 23 May 2005, no significant incident occurred. There were exchanges of e-mails and text messages, indicative of the tension between the appellant and Miss Jenkins, although during the exchanges they do appear to have discussed sensible arrangements for the children.
The Crown Court did not find that what had happened prior to May 2005 was any part of the course of conduct that constituted the offence against Miss Jenkins. It is therefore unnecessary to consider what happened in January or in the period down to 23 May 2005 any further in relation to the conduct charged.
The findings under the first head of harassment: the writing of letters
Sometime prior to 23 May 2005, Miss Jenkins had written a letter to the Lord Chancellor about the appellant. The Crown Court proceeded on the basis that she was unable to find the letter and that she could not recall the contents. It is not clear at what point of time this letter was written, but the Crown Court found that the letter was written in strong terms and must have been highly critical of the appellant.
On 23 May 2005, the appellant wrote to Mr Howard Culley, the National Managing Partner of Irwin Mitchell. The letter, a copy of which was provided to this court, made serious allegations of professional misconduct against Miss Jenkins and Mr Grahame Codd (the partner in Irwin Mitchell with whom she had begun an affair) in relation to a without notice application made by her to the Principal Registry of the Family Division on 10 April 2003 (which led to the non molestation order to which I have referred at paragraph 11.i)) and subsequent proceedings. The allegation was to the effect that evidence had been deliberately withheld from the court. It appears from the letter, that the appellant also complained to the Law Society and others, but the Crown Court made no findings in respect of this and we were not provided with any documents.
Miss Jenkins was given a copy of the appellant’s letter by her firm on Friday 3 June 2005 and asked for her comments. The court accepted her evidence that she felt humiliated and embarrassed and that her reputation was being deliberately tarnished. On the same day, Mr Michael Napier, the senior partner of Irwin Mitchell, wrote to the appellant; no copy of that letter was provided to the court.
There was an acrimonious exchange of text messages on the weekend of 4 and 5 June 2005. On 6 June 2005 the appellant wrote to Mr Michael Napier in response to his letter of 3 June 2005; the appellant’s response contained further allegations of misconduct against Miss Jenkins.
The Crown Court found that the letter of 23 May 2005 and correspondence which followed was intended by the appellant and known to be intended to undermine Miss Jenkins’ integrity; it was also found that the appellant wrote the letters with the intention of causing her distress.
On 8 June 2005, Miss Jenkins sent an e-mail to the appellant informing him that the letters to Irwin Mitchell were libellous; they had upset her. She stated that she considered he had taken this step as calculated to damage her career. The Crown Court found that the appellant was put on the clearest notice of her distress; it will be necessary to refer to this e-mail again at paragraph 27.
Mr Napier responded to the appellant’s letter of 6 June 2005, and on 9 June 2005 the appellant wrote again to him maintaining his complaints against Miss Jenkins. Only one further letter between the appellant and Irwin Mitchell in relation to Miss Jenkins was produced; I shall refer to that at paragraph 46 below. There were further letters, texts and e-mails which the Crown Court considered under the heading of “correspondence”, but they are best referred to in the context of the events that followed.
Heading 2 and 3: The observation, the instances of following and photographs
The events which follow centre upon the appellant’s conduct after he became aware in early June 2005 of a relationship Miss Jenkins had commenced with Mr Buttimore; it is much easier to understand these events if the facts relating to the observations, the instances of following and the taking photographs are set out chronologically. In all 10 photographs appear to have been recovered and were exhibited – 3 of Mr Buttimore, 1 of Miss Jenkins and the remainder of the inside or outside of the former matrimonial home.
Before doing so, it is necessary first to set out what the Crown Court recorded that it had taken into account in making the findings:
The appellant was a man with a very impressive character and impeccable background. The appellant is a Recorder of the Crown Court, a past member of the Parole Board, a past member of the Commission for Racial Equality and has held or holds a number of important positions. The Court found the evidence of the character witnesses moving and impressive. The Court had taken all that into account.
The evidence of Miss Jenkins and Mr Buttimore had to be treated with caution, because there was a highly charged emotional background and the ill-feeling resulting from the acrimonious breakdown of the marriage between the appellant and Miss Jenkins.
In the light of the court’s finding in relation to their evidence about an alleged incident of harassment on 24 September 2005 (see paragraph 49 below) where the court expressly found that it was not sure that they were telling the truth, the court stated it had taken great care in examining the evidence of both Miss Jenkins and Mr Buttimore.
It is next necessary to set out the general findings of the Crown Court:
The appellant had the deepest interest in the well-being of his children and was devoted to them.
Sensible relationships between the parties had broken down and a degree of common sense on both sides was not apparent. There was a clear background of dissention and ill-feeling on both sides.
The appellant strongly resented Miss Jenkins bringing the children of the marriage into contact with her boyfriends. He became totally obsessed by the relationship Miss Jenkins had with Mr Buttimore and by the fact that the children of the marriage were seeing a great deal of Mr Buttimore; in consequence he behaved in a way that was totally and absolutely out of character with his normally responsible, careful and excellent behaviour and judgment.
The specific events relevant to the charges began on 7/8 June 2005, when Miss Jenkins brought Mr Buttimore to the former matrimonial home for the first time. They arrived by taxi after dinner at about 10 pm. Her evidence was, as recorded by the Crown Court, that they saw the appellant’s car and so drove round the block. The appellant came out of his car and said to Mr Buttimore outside the house, “You’ll be having breakfast with my kids in the morning”. Mr Buttimore got into the taxi and left. Miss Jenkins called the police saying she felt she was being harassed. The appellant then left. Mr Buttimore’s evidence was that the appellant had said to him “She’s a liar and a bitch and done this before.” Although for the reasons the Crown Court gave (as set out at paragraph 24), the court treated Mr Buttimore’s evidence as a whole with caution, they were sure he was telling the truth about this incident.
On 8 June 2005, Miss Jenkins sent the e-mail to the appellant to which I already have referred at paragraph 21 in connection with Irwin Mitchell. In the e-mail, she also asked him to desist from what she felt was a campaign of harassment against her. She said she found the text messages sent over the weekend upsetting and that it was clear from them that he was keeping a watch on her movements in and out of SM Road where the former matrimonial home was situated. She found this to be very disturbing. After referring to the events of the previous evening, she warned him that if he persisted, she would seek an injunction. The Crown Court found that the e-mail set out her feelings at the time; she never applied for an injunction. The appellant’s response was a letter; it stated that it was written so that it could be placed before a judge if Miss Jenkins applied for an injunction; he stated that he had visited SM Road, as he saw the neighbours on a regular basis. He made clear his feelings about her conduct in attempting to take another man home and about the upsetting effect this would have on the children. He alleged that the choice of phrase to describe her distress in her letter was a ploy to bolster any application she might make. The Crown Court found that she was not pretending. It is unnecessary to set out the further acrimonious exchange that followed that day.
The next event was on 14 June, when Miss Jenkins and Mr Buttimore took a taxi to the former matrimonial home at about 11 pm. On their arrival, as they got out of the taxi, the appellant took photographs of Mr Buttimore – one of the photographs exhibited showed Mr Buttimore in the back of a taxi. It is unclear from the findings of the Crown Court whether the appellant took photographs of Miss Jenkins or the taxi driver. The Crown Court found that the appellant said to Mr Buttimore “She’s a liar and a bitch. They are my children you are having breakfast with.” The Crown Court also found that Miss Jenkins was alarmed by the photographs.
On 15 June 2005, the appellant wrote to Miss Jenkins saying that he was giving serious consideration to challenging the residence order that she had obtained in relation to the children and applying for a residence order in his favour. The grounds he mentioned were her relationship with Mr Buttimore, the fact that he contended that she had obtained orders from the court by misleading it and her failure properly to look after the children. He made the application a month later.
The next events were on 29 June 2005; Miss Jenkins’ evidence was that she had returned home in a taxi at 3 a.m. and seen the appellant’s car but not the appellant. She went into the house; there was no incident. The appellant said he had arrived later that day to take the children to school and she was told that he had a flat battery; the Crown Court found that there was evidence which they did not reject that the appellant was given a jump start that day. The Crown Court accepted her evidence that at 7.30 p.m. that same day the appellant’s car was seen reversing backwards and forwards in the road.
On 1 July 2005, the appellant came, by agreement, to take the children to school; Miss Jenkins refused to let him. He was seen shortly after by Miss Jenkins in a street walking towards her. The appellant’s explanation was that he was calling at a firm in the road, as he was looking to purchase property in the area. The Crown Court did not believe his explanation and found that he was walking towards Miss Jenkins.
On 2 July 2005, there was a significant incident. Mr Buttimore was with Miss Jenkins at the former matrimonial home. When a minicab arrived at 4 a.m. to take Mr Buttimore away, the appellant took photographs. It was the appellant’s evidence that he took the photographs as evidence in support of the application he was making to the court; he had been on his way from SM Road to his chambers, when he had seen the minicab waiting; he had then waited outside and taken the photographs. Evidence about this incident was also given by Miss Jenkins, Mr Buttimore and the minicab driver. Mr Buttimore and Miss Jenkins said that the appellant had burst through the door, taken the photographs and had said that it was a disgrace that they were having sex in front of the children. The Crown Court accepted the account of the minicab driver that the appellant was waiting inside the gate to the house when the minicab arrived and, as the front door opened, he had pushed it open, gone inside and taken photographs with his mobile phone; the Court rejected the evidence of the appellant as to where he was waiting. The Court also found, as a result of what happened when Mr Buttimore gave evidence at the Crown Court, that Mr Buttimore was distressed by this incident.
On 3 July 2005, when Mr Buttimore went to the matrimonial home, the appellant came up behind him as he went in and shouted: “She’s a liar and a bitch. She has done this before.”
On 4 July 2005,
at about 8:30 a.m. the appellant went to the former matrimonial home to take the children to school; there was a disagreement between the nanny and the appellant over a fan. The appellant told Miss Jenkins that she was a disgrace having sex in front of the children. The nanny then closed the door.
Later that day, Mr Buttimore visited the house; he left by taxi after midnight. The appellant admitted he took photographs of Miss Jenkins and Mr Buttimore spending the evening together, but Miss Jenkins and Mr Buttimore were unaware of this at the time. The appellant’s explanation was that he had to go into the grounds of the house; he saw the scene and decided to take the photographs because he thought that they might be helpful to his application to the court. The Crown Court were not persuaded that this was a truthful account.
The police stopped the appellant and took a camera from his car.
The appellant was then arrested and bailed to return to the police station on 10 August 2005.
At about this time, the appellant began observing the former matrimonial home from the canal at the rear of the house; this was brought to the attention of Miss Jenkins and Mr Buttimore on 12 September 2005 by the Mooring Warden for the canal in the circumstances set out at paragraph 48 below.
On 15 July 2005, the appellant made an application to the Family Division for a shared residence order. It was based, in substantial part, on the time that Miss Jenkins spent at work and with Mr Buttimore, which, the appellant alleged, resulted in the children being left in the care of a nanny and others.
There were two matters that occurred near the Engineer Public House in July and in early August, but as the Crown Court paid no attention to them, it is not necessary to refer to them. No further incidents took place later in July or the first part of August; Miss Jenkins and the appellant separately took the children on holiday overseas.
On 10 August 2005,
the police served the appellant with an “allegation of harassment form”. This form set out the allegation made to the police against him by Miss Jenkins and Mr Buttimore. The allegation was that he had been harassing them, by sending e-mails and texts; by trespassing and taking photographs in close proximity to the former matrimonial home; that he had broken the contact order in relation to the children and that he had made unwarranted contact with Irwin Mitchell. The notice stated that the police made no comment on the truth of the allegations, but warned the appellant that harassment constituted a criminal offence.
There followed an exchange between Miss Jenkins and the appellant about which no findings were made, but it resulted in a further letter from the appellant to Miss Jenkins on 11 August 2005, in which the appellant stated that he was making a complaint against her to the Professional Standards Committee.
On 13 August 2005, Miss Jenkins took the children to see a play with a friend. The appellant was waiting in a road and drove along the side of the road; the Crown Court did not identify the road or give any more details of the incident.
On 15 August 2005, the appellant wrote to Miss Jenkins, alleging that her conduct in her relationship with Mr Buttimore was upsetting the children and that she and Mr Buttimore had made false allegations about him to the police that had led to his arrest. The letter also alleged that they had done so in conspiracy with the police. The Crown Court found that the police had not been engaged in any improper conduct, but found that the fact that the appellant made this and other allegations against the police was an indication that he was behaving totally out of character. The appellant also wrote to Mr Buttimore, stating that he was intending to apply to the court to prevent him from being involved with the children of the marriage. The letter particularised the allegations against him. Two further letters in a similar vein were written on 17 August 2005. The Crown Court found that all these letters were intended to cause distress.
On 18 August 2005, when Miss Jenkins and the children were going to Somerset, the appellant was waiting outside the former matrimonial home. She called the police and the appellant left.
Miss Jenkins returned from Somerset with the children on 26 August 2005. On 27 August 2005,
Miss Jenkins gave evidence that the appellant followed her when she was in a bus after doing a U-turn; the appellant denied this, but the Crown Court accepted Miss Jenkins’ evidence.
The appellant wrote to both Miss Jenkins and Mr Buttimore complaining that Miss Jenkins refused to let the children speak to him and that she had taken them to see Mr Buttimore instead of him. He set out his views of the effect their conduct was having on the children of the marriage, in particular, by encouraging them to lie. The Crown Court found that this was intended to cause distress.
On 28 August 2005, the children were taken to the Notting Hill Carnival by Miss Jenkins; the appellant saw them there and took M off for a few minutes. When he returned, he called Miss Jenkins a “racist bitch”. The Crown Court found that, although there was dissension in relations which might result in bad language, the appellant intended to cause her distress. There was a further dispute over who should look after the children during the carnival. The Crown Court found that this distressed Miss Jenkins, but that the appellant had not necessarily intended to cause her distress. Miss Jenkins set out her account of events in a text message to the appellant, to which he responded by letter on the following day.
On 28 August 2005, Mr Buttimore spent the night at the former matrimonial home. His evidence was that he slept in a separate room from Miss Jenkins and saw the appellant on the canal towpath at the rear of the house staring at the house.
On 30 August 2005, when Miss Jenkins was driving Mr Buttimore to work, the appellant drove slowly past them. They pulled up next to his car and Mr Buttimore asked him what he wanted; the appellant made no reply. Later that day, there was an exchange of e-mails between the appellant and Miss Jenkins, which related to Miss Jenkins’ allegations that the appellant was asking questions about her and also related to making arrangements in respect of the children.
On 31 August 2005, the appellant wrote to Mr Napier at Irwin Mitchell setting out his account of the falsity of the allegations that Miss Jenkins was making against him.
On 5 September 2005, Mr Buttimore and Miss Jenkins were returning to the former matrimonial home with E late in the evening; the appellant was outside. Mr Buttimore shouted at him “You are a disgrace to your profession. You should not be a judge. I will call the police. If you have any decency you will stay and face them”. The next day, the appellant followed Mr Buttimore 3-4 yards behind. The appellant also wrote to Mr Buttimore to complain about the gratuitously offensive remarks made by Mr Buttimore on the previous evening and the effect his conduct was generally having on the children of the marriage.
As I have mentioned briefly at paragraph 35, on 12 September, the Mooring Warden for the canal, Mr Grindrod, addressed a letter to the occupants of the house to which I have referred as the former matrimonial home, referring to a person (whom the letter described) carrying out observations most nights over a number of weeks for a period of up to one or two hours. The Crown Court heard evidence from Mr Grindrod and the appellant about this. It accepted the evidence of Mr Grindrod and rejected that of the appellant as untrue. The court was sure that the letter referred to the appellant and that he had been observing the house on a number of occasions at night over a period of two months.
On 27 September 2005, the appellant was charged with the offences. The following occurred immediately prior to his arrest and charge:
The evidence of Miss Jenkins was that she saw the appellant on 24 September 2005 outside the former matrimonial home at the time the children went to bed.
The evidence of Miss Jenkins and Mr Buttimore was that at about 10 p.m. they saw the appellant outside.
At 10:14, Mr Buttimore telephoned the police in the presence of Miss Jenkins and said that the appellant was outside the house.
On 25 September 2005, Miss Jenkins and Mr Buttimore provided signed statements to the police setting out in detail their account of what they alleged had happened on 24 September 2005.
Mr Buttimore and Miss Jenkins knew at the time they phoned the police and made their statements that the appellant had issued proceedings in the High Court for a shared residence order and had a few days before issued a further application.
The Crown Court found that the appellant was not outside the former matrimonial home at the time Mr Buttimore phoned the police; there was evidence to show that he could not have been. The Crown Court concluded:
“We have considered anxiously and very carefully whether there is room on the evidence of those two for mistake. We are not persuaded that there is. It is impossible, on the evidence we have, for Mr Crawford to have been there at that particular time, and we are not sure that on that occasion Mr Buttimore and Ms Jenkins are telling the truth, and we make that clear finding: we are not sure that they are being truthful.”
The appellant was interviewed by the police. The Crown Court concluded that an occasion during the interview when the appellant started shouting was an example of the fact that he was behaving out of character and had lost his self control over that period of time.
It is on those findings which I have set out, that the question of law for this court arose.
The question of law
The grounds of appeal drafted by the appellant set out numerous questions, but it was submitted by his counsel, that the essential question could be formulated as:
“On the findings of the Crown Court was the appellant guilty of the offences contrary to s.2 of the Protection from Harassment Act?”
The respondent agreed that this was the correct question and it is the question which I shall answer.
The law
There was no real dispute about the applicable law. The offence with which the appellant was charged is set out in ss. 1 and 2 of the Protection from Harassment Act 1997.
“1. – (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 harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows –
….
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”
s.2 (1):
“A person who pursues a course of conduct in breach of s. 1 is guilty of an offence”
There is no definition of harassment in the Act, but s. 7 provides:
“(2) References to harassing a person include alarming the person or causing the person distress
(3) A “course of conduct” must involve conduct on at least two occasions.”
The court was therefore helpfully referred to s. 3A of the Race Relations Act 1976 for a further definition of harassment which was added in 2003.
“(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1 (1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –
(a) violating that other person’s dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. ”
The provisions creating the offence under s.2 have been subject to consideration by the courts; the relevant law can therefore be summarised:
The test as to whether a course of conduct amounts to harassment is an objective one. This is clear from the language of ss. 1(2) and 1(3) of the Act, but if authority is needed, it is to be found in the decision of R v Colohan [2001] EWCA Crim 1251 where Hughes J giving the judgment of the Court of Appeal Criminal Division said:
“20. We agree accordingly with the learned judge that except in so far as it requires the jury to consider the information actually in the possession of this defendant section 1(2) requires the jury to answer the question whether he ought to have known that what he was doing amounts to harassment by the objective test of what a reasonable person would think. Its words, we are satisfied, are abundantly clear.
21. As to section 1(3)(c) that, we are satisfied, poses even more clearly an objective test, namely whether the conduct is in the judgment of the jury reasonable. There is no warrant for attaching to the word "reasonable"; or via the words "particular circumstances" the standards or characteristics of the defendant himself.”
A course of conduct which is unattractive and unreasonable does not of itself necessarily constitute the criminal offence under s.2; it must be unacceptable and oppressive conduct such that it should sustain criminal liability. In Majrowski v Guy & St Thomas’s NHS Trust 2006 [UKHL] 34 ([2007] 1 AC 224), where the issue related to vicarious liability for harassment, Lord Nicholls of Birkenhead in giving the first speech made this clear at paragraph 30:
“Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the “close connection” test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. 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.”
Baroness Hale observed at paragraph 66 that the definition had been deliberately left wide open and it had been left to the wisdom of the courts to distinguish between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.
In Conn v Sunderland City Council [2007] EWCA Civ 1492, a civil claim was made under the 1997 Act; the judge found 2 out of the 5 incidents relied on proved. The appellant contended that neither of the 2 incidents were of sufficient gravity to amount to harassment. In giving the leading judgment, Gage LJ observed that whether conduct which crossed the line might well depend on the context in which the conduct occurred:
“What might not be harassment on the factory floor or in the barrack room might be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognising what is not harassment for the purposes of sections I and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”
Buxton LJ made it clear at paragraph 18 that the court had to consider whether the conduct was of such an order that it would sustain criminal liability and not merely civil liability on some other register.
It is therefore important to emphasise the need for the court specifically to address the question as to whether the course of conduct crosses the boundary, so that it is unacceptable and oppressive conduct, such that it should sustain criminal liability.
The conduct relied upon must comprise a minimum of two incidents, so connected in type and context, that it can be seen as amounting to a course of conduct. In Pratt v DPP [2001] EWHC Admin 483 (165 JP 800), counsel for the defendant submitted, that the conduct with which the defendant was charged, did not amount to a course of conduct by reason of the distance in time between the two incidents and the lack of any sufficient connecting factual detail to suggest that the two amounted to behaviour which was akin to, as the appellant submitted, stalking; stalking was, in his submission, the mischief to which these provisions were originally directed. He had based his submission on Lau v DPP [2001] 1 FLR 799 said, where Schiemann LJ had said “None the less the broad position must be that, if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct.” Latham LJ continued at paragraph 10:
“In my view, these propositions accurately set out the law and the cautious approach that any court should adopt where the allegation of harassment is based upon either two incidents or any other series of incidents, if few in number and widely spaced in time. The issue for the court is whether or not the incidents, however many they may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct.
…
12. I would, however, say one word of caution. This case is one which is close to the borderline; and it seems to me that prosecuting authorities should be hesitant about using this particular offence in circumstances such as this where there are only a small number of incidents. They should ensure that what they are seeking the court to adjudicate upon can properly fall within the category of behaviour which is behaviour causing harassment of the other, not merely that there have been two or more incidents. The mischief, which the Act is intended to meet, is that persons should not be put in a state of alarm or distress by repetitious behaviour.”
In R v Patel [2004] EWCA Crim 324 ([2005] 1 Cr.App.R. 27) Maurice Kay LJ in giving the judgment of the court approved at, paragraph 40, what was said in Lau and Pratt. :
“Adopting the approach of the Divisional Court, we conclude that if there is any possibility (seen prospectively or retrospectively) that the jury has convicted on the sort of basis to which we have referred, then assistance of the kind prescribed by the divisional court is in our judgment essential. It is not just a matter of counting the incidents and saying. “We have two, that is enough.” It is necessary for the jury to be given some guidance so that they address the question of whether the incidents give rise to a nexus sufficient for there to be a “course of conduct”. As Latham LJ said in Pratt, the issue is whether or not the incidents, however many there may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct.”
It should be self-evident that nothing that involves cultural or racial differences should be taken into account, unless it is relevant and supported by proper evidence. The importance of not doing so is underlined by the decision of the Employment Appeal Tribunal in Bradford Hospitals NHS Trust v W Al-Shabib [2002] UK EAT 709 where Judge Reid QC giving the judgment of the tribunal said at paragraph 21:
“21. Whilst it may sometimes be legitimate for a tribunal to take into account differences in behaviour which reflect racial and cultural differences, it is wrong for a tribunal to make findings based on the existence of such differences unless there is some evidential basis for them, frequently in the form of expert evidence. For a tribunal simply to assume that a particular ethnic group has a specific characteristic, e.g. that they are given to using emotive language, is fundamentally wrong, even if the assumption is made for benign purposes. Where, as here, the assumption forms the basis of a finding that an employer is guilty of racial discrimination, it is plainly impermissible. It was wrong for the Tribunal to criticise Mrs Stephens for lacking an awareness of racial and cultural differences, and for failing to adjust her reactions accordingly, without some proper evidential basis for finding that those differences had the effect assumed. The very broad distinction assumed by the Tribunal that there is a difference between "Anglo-Saxon" and "Iraqi" behaviour, is impermissible just as is the assumption apparent in the decision that persons of Iraqi nationality or Arabic origin are difficult to control or given to using emotive language. The question which the Tribunal should have asked but did not was whether Mrs Stephens would have adopted the same approach in the case of any employee who behaved discourteously and used inflammatory language in the course of a grievance hearing.”
The matters said to constitute the course of conduct amounting to harassment must be properly particularised in the information laid or the indictment; this was done, for example, in Lau v DPP.
It was indicated in the skeleton argument filed on behalf of the appellant, that a contention might be advanced that the offence charged was too vague to be compatible with the appellant’s Convention rights and that a declaration of incompatibility should be made under s.4 of the Human Rights Act 1998; in the result, this argument was not pursued. It was submitted, however, that the Protection from Harassment Act 1997 should be read in a way compatible with the Convention as required by s.3 of the Human Rights Act 2003. In my view, the approach to the Protection from Harassment Act 1997 summarised in the preceding paragraph is in conformity with Convention rights.
The reasons for the decision of the Crown Court
The Crown Court gave the following as its reasons for convicting the appellant:
“I take first, because of the use – and I am dealing with the law at this stage – of the word “reasonable”, and I may have, in the discussion with counsel about this, had in mind that “reasonable” includes a sober person of reasonable firmness sharing the characteristics of the defendant. It is sufficient for me to say that in considering this – and it may perhaps be a generous interpretation or construction of the judgment – we have taken into account the culture of the defendant, his clearly deep love of his two children, E and M, that there has been a divorce, that it was – certainly things had become acrimonious, and his age. Those are all matters, in considering a reasonable person, that we have taken into account.
We have reached the conclusion in this case that the appellant’s conduct was carried out to harm and cause, certainly, distress. It is a matter we have considered at very great length on the evidence, and that a reasonable person, as I have so defined, in possession of all this information would consider it amounted to harassment, and I have indicated how we have directed ourselves on “reasonable”.
It is a defence, if a person shows in particular circumstances the pursuit of the course of conduct is reasonable. We do not consider that “shows”, where used in the context of this legislation, did have in mind a passing of the burden. Once the defendant raises the matter, in our judgment, it is for the Crown to destroy it. We are satisfied – we are sure that they have destroyed it.
…
There are three heads, it appears to us of alleged harassment .. First the correspondence, the second matter is the observations of the house, …the third limb are the photographs.”
The Court made clear that within the category of observations was included the instances where there was a following.
Specific holdings were then made in relation to the three heads:
The court was satisfied that the letter of 23 May 2005 and the other correspondence “were intended, and [the appellant] knew they were intended, to undermine” Miss Jenkins’ integrity.
The court was sure that there was observation of the house on a number of occasions by the appellant.
There were a number of photographs taken of Miss Jenkins and Mr Buttimore. However, the taking of the photographs on 4/5 July 2005 (referred to at paragraph 34) could not constitute harassment as Miss Jenkins and Mr Buttimore were unaware they were being taken. They were therefore not relevant evidence of harassment, but were to be taken, with a degree of reservation, as indicative of an obsession on the part of the appellant.
My conclusion
Unfortunately, as I have stated, the charges were not particularised. This omission in part contributed to the length of the hearings in the courts below and contributed to the failure to distinguish between evidence that was provided as background and evidence of what constituted the matters charged as criminal conduct. I accept the submission of the appellant that this contributed to the overall lack of focus of the Crown Court which heard the appeal.
It also, in my view, contributed to the way in which the Crown Court made its findings in the judgment and to the omission of the Crown Court specifically to address the elements of the offence under s.2. Nonetheless in my view, it is possible for this court, on the facts set out, to address the question of whether an offence under s.2 was committed.
Can some of the findings of fact adverse to the appellant be impeached?
Before doing so, it is necessary to address the appellant’s submission that some of those findings should not stand.
It was submitted that no weight should be attached to the findings made in respect of the instances of following on 27 August, 30 August and 6 September 2005, as the findings were made solely on the basis of the evidence of Miss Jenkins and Mr Buttimore.
The findings on credibility adverse to the appellant could not be sustained.
Two submissions were made; first the court had not given proper reasons and second it had approached its findings on credibility with a subconscious bias against the appellant.
The first contention was that, in the light of the false allegations made against the appellant in relation to 24 September 2005 (which I have set out at paragraph 49 above), the proper conclusion was that Miss Jenkins and Mr Buttimore had conspired to pervert the course of justice and had committed perjury; their evidence as a whole could therefore not be relied on. The Crown Court had given no proper reasons as to why therefore their evidence on other matters should be accepted and that of the appellant rejected.
The second submission was founded on the Crown Court’s reference to taking into account the culture of the appellant (see the first paragraph of the reasons of the Crown Court set out at paragraph 57 above). It was submitted on the appellant’s behalf that what the Crown Court was saying “we have been generous to you by taking into account your culture”; it was therefore in effect subconsciously stereo-typing the appellant. If the Crown Court was being generous in this way, it was submitted that it could only have meant that its view was that a person of the appellant’s culture would have a less ready appreciation of what amounted to harassment than a white person. This was condescending, unjustified and unfair as the Crown Court was assuming that the “culture” of the appellant predisposed him to behave in a certain way, which but for the generosity of the lower standard applicable to him, would amount to harassment. As the appellant had practised at the Bar of England and Wales for 30 years and held public positions, it could be inferred that the Crown Court was influenced by his colour or race. Furthermore, if the Crown Court held this subconscious view, it could also be inferred that there was a subconscious bias to accept the evidence of Miss Jenkins and Mr Buttimore and reject that of the appellant.
As to the second submission, it was rightly accepted on behalf of the respondent that the Crown Court had been quite wrong to refer to taking account of the appellant’s culture; that not only was it irrelevant as a matter of law, but also it was offensive to the appellant.
However, if the findings of fact made by the Crown Court stand, the role of this court in answering the question posed is to determine whether on those facts the appellant was guilty of the offences charged. It can therefore approach the issue afresh without any regard to the “appellant’s culture”, whatever that may have been intended by the Crown Court to mean.
The real issue therefore, is whether the reference to the appellant’s culture is indicative of a subconscious bias which affected the findings of fact and/or credibility that were made by the Crown Court. I have very carefully considered whether there is any possibility of subconscious bias in the approach of the court to the issue of credibility and propensity.
I have already summarised the findings made in respect of the false allegations made by Mr Buttimore and Miss Jenkins about the appellant’s presence outside the former matrimonial home on 24 September 2005. The Crown Court clearly rejected the evidence of Mr Buttimore and Miss Jenkins as inaccurate and that the allegations were in consequence false, but it was not sure they were being deliberately untruthful in their statements to the police and subsequently in their evidence on oath in the Crown Court. The approach of the Crown Court was to take that finding into account in relation to the other evidence given by Miss Jenkins and Mr Buttimore and weigh it against the evidence of the appellant on other occasions where there was independent evidence. The “adverse” findings of the Court in relation to the appellant were on the basis that he had acted completely out of character, a character which the Court had found to be impeccable. The subconscious bias argument does not withstand scrutiny in the light of that finding, whether with regard to credibility or propensity. It also has to be remembered that the credibility of the appellant was undermined by the evidence of some of the independent witnesses. Moreover, it is to be noted, that the Crown Court was rightly highly critical of the actions of Mr Buttimore and Miss Jenkins on 24 and 25 September 2005. With regard to the specific instances where it is said that there was no independent evidence and thus it was one person’s word against another, the following is relevant in relation to 27 August 2005:
Support for the two witnesses’ evidence in the letter dated 27 August 2005; (the appellant can only have known of the couples movements if he had watched them).
The consistency of the allegations of following.
The evidence of the witnesses, even treated with caution, was capable of being corroborative.
The allegation, unlike the other allegations, was not refuted by the appellant at the time of the e-mail exchange.
With regards to that date and the other two dates, the court was also entitled to take into account the evidence of Mr Grindrod that the appellant was in the area most nights over a number of weeks.
Looking at the whole of the judgment, the Court reflected in its assessment of the respective credibility of the witnesses, a balanced and measured approach. I therefore reject the submission made on the appellant’s behalf that the findings of fact can be impeached.
The letters to Irwin Mitchell
It seems to me clear, as was submitted by the appellant, that the conduct in writing letters to Irwin Mitchell falls into an entirely different category of conduct to the conduct which began in early June and which comprised the instances of following, observing and photographing Miss Jenkins and Mr Buttimore.
As to the conduct in writing the letters to Irwin Mitchell, it did not, in my view, constitute a course of conduct of harassment. Although it is clear from the content of the letters that they must have been intended to cause Miss Jenkins distress (as the Crown Court found) and did in fact (as was accepted on the appellant’s behalf) cause her distress, an intention to cause distress cannot of itself cause harassment if what was done was reasonable. The letters made very grave allegations of professional misconduct in clear terms. However, they were addressed to an appropriate person – the National Managing Partner of Irwin Mitchell, who had an obvious interest in being sure of the integrity of each solicitor in the firm; the integrity of each solicitor in a law firm is essential to the proper practice of law by that solicitor and to the firm’s general reputation. In my judgment, the writing of the letter of 23 May 2005 was, in all the circumstances, reasonable. The appellant did not initiate the correspondence with Mr Napier, the senior partner; it therefore follows that the conduct of the appellant in responding to the senior partner and writing to him on further occasions, in all the circumstances, was not unreasonable.
In my view the other letters, text and e-mails exchanged between the appellant, Miss Jenkins and Mr Buttimore read as a whole also do not amount to a course of conduct of harassment. Although many were acrimonious in tone (as indeed were some of the communications sent by Miss Jenkins) and undoubtedly would be known to cause her distress, they simply are not conduct that could amount to harassment. Most were the appellant’s response to actions initiated by Miss Jenkins. Two examples will suffice: first, the response of the appellant to Miss Jenkins’ e-mail of 8 June 2005 (which I have summarised at paragraphs 21 and 27) was calmer in tone than her e-mail and, although the court did not accept the allegation made, it was not one that was unreasonable to make, let alone conduct that was unacceptable and oppressive conduct. Second, after the police issued the “allegation of harassment form” on 10 August 2005 setting out the allegations made by her and Mr Buttimore, the conduct of the appellant in responding was not unreasonable in the circumstances. The four letters to Mr Buttimore could not possibly be viewed as conduct amounting to harassment of him; three simply put forward allegations in relation to the effect his relationship with Miss Jenkins was having on the children of the marriage. The fourth was a response to Mr Buttimore’s “offensive” remarks made to the appellant.
For these reasons therefore I consider that the decision of the Crown Court on this aspect was wrong and the question of law answered with respect to this conduct should be answered by stating that the conduct in respect of the correspondence did not amount to an offence under s.2.
The observations, instances of following and the photography
The Crown Court, as is evident from its reasons which are set out at paragraph 57, made no finding in relation as to whether there was a course of conduct; nor did it give any detailed reasons for rejecting the case advanced by the appellant as to why he was observing, photographing and following. It was argued on behalf of the appellant that the appellant was entitled to have the case remitted to the Crown Court for it to consider these issues. Quite apart from the fact that remission to the same constitution of the Crown Court would at this point of time serve no worthwhile purpose, it is neither necessary nor appropriate to remit the matter back to a differently constituted Crown Court to hear the appeal afresh. In my judgment, the facts have been found by the Crown Court as set out in this judgment; those findings address the reasons advanced by the appellant for acting as he did. This court can and should determine the questions of law which arise, namely whether on those facts the appellant pursued a course of conduct and if so, whether it amounted to the offences of harassment under s.2 with which he was charged.
The conduct can be summarised as follows:
The photographs: the appellant took a number of photographs. Miss Jenkins and Mr Buttimore were only aware of the photographs being taken on 14 June 2005 (see paragraph 28) and 2 July 2005 (see paragraph 32).
The observations: although the appellant observed Miss Jenkins and Mr Buttimore at the former matrimonial home from the canal on a number of occasions between July and September 2005 (see paragraphs 35 and 48), he was never seen by Miss Jenkins and only seen on two occasions by Mr Buttimore – 28 August 2005 (paragraph 44) and 5 September (paragraph 47). The Crown Court also found that, in addition to the times at which he had been seen to photograph, he was seen outside the house on 3 occasions -7/8 June by Miss Jenkins and Mr Buttimore (see paragraph 26), 3 July 2005 by Mr Buttimore (see paragraph 33) and on 18 August 2005 by Miss Jenkins (see paragraph 41).
The instances of following: there were four instances of following Miss Jenkins found by the Crown Court - 1 July 2005 (see paragraph 31), 13 August (see paragraph 39), 27 August (see paragraph 42.i) and 30 August 2005 (see paragraph 45); only one of these also involved Mr Buttimore. There was also a separate following of Mr Buttimore on 6 September (see paragraph 47).
On some occasions bad language was used. It appears that no reliance was placed on the bad language as constituting a course of conduct of harassment; it was not found to be part of the course of conduct by the Crown Court; it cannot therefore be taken into account in this court.
I therefore turn to answer the question of law as to whether on the findings in relation to the photographs, observations and followings as summarised above, the appellant was guilty of the offence under s.2. I first consider the charge in relation to Miss Jenkins.
The first question is whether the conduct comprising the observations, the instances of following and the photography between 7/8 June and 5 September 2005 can be looked at together to determine whether it constituted a course of conduct. It was accepted on behalf of the appellant that these could be regarded as similar and forming a single course of conduct. In my judgment there plainly was, on the findings, a course of conduct in respect of Miss Jenkins as the instances of following, the observations and the photography were so connected in type and time that they amounted to a single course of conduct; there were many such events closely spaced in time.
In considering whether the course of conduct amounted to harassment of Miss Jenkins, it is necessary to have regard to all the circumstances, including the reasons given by the appellant for his conduct. The appellant’s case was that he was doing all of this to gather evidence as to the effect on the children of the relationship Miss Jenkins was enjoying with Mr Buttimore for the application he had made for joint residence; he considered that Miss Jenkins had earlier deceived the court and was capable of lying in the course of the application for joint residence; he believed that she was selective in the evidence she retained about their conduct. There can be no doubt, in the light of the Crown Court’s findings, that he was devoted to the children and it was submitted that the appellant’s Convention rights were relevant as essentially the conduct alleged against him arose out of arrangements for the children. The Family Court was the correct forum to deal with these disputes, as it could monitor the conduct of the parties and deal with any party that went too far in obtaining evidence by orders or undertakings; criminal prosecution was inappropriate.
I cannot accept the submission that the criminal courts had no role to play and the matter should have been one for the Family Courts. There is nothing in the Convention that supports that submission. It is clear that conduct within a dispute relating to children can be of such a degree that the proper forum for determining issues in relation to that conduct is the criminal courts. Of course it may be argued with considerable force, that it would have been far better for all concerned if Miss Jenkins and Mr Buttimore had resorted to their civil remedies and not to the police. However Miss Jenkins referred the appellant’s conduct to the police beginning in January 2005 (see paragraph 13.ii)); it quite clear that she and Mr Buttimore referred the appellant to the police on numerous occasions from the outset of their relationship. Once the issues were referred to the police and the CPS decided to prosecute, it was for the criminal courts to determine in a public forum whether the appellant’s conduct amounted to an offence under s.2. There is nothing in the Convention that made the decision of the CPS to prosecute the appellant in any way unlawful or inappropriate.
In my view the appellant’s conduct went far beyond anything that could objectively, taking into account all the circumstances, be considered acceptable or reasonable; it was plainly oppressive and unacceptable. Although obtaining evidence that Mr Buttimore was spending a lot of time with Miss Jenkins (including nights) at the former matrimonial home could be said to be relevant to the application made by the appellant, by reason of the effect that the appellant contended this conduct was affecting the children of the marriage, the way in which the appellant went about the task was manifestly unreasonable, unacceptable and oppressive; there could, for example, have been no justification for waiting within the grounds of the house and entering it on 2 July 2005. Nor could there have been any justification for following Miss Jenkins. It is clear that the appellant’s conduct was entirely out of character. Unfortunately he became obsessed as to the effect on the children of the relationship that Miss Jenkins was conducting with Mr Buttimore. Although this may explain his course of conduct, it cannot be any justification for it. In my judgment the course of conduct amounted to harassment of Miss Jenkins. It crossed the boundary between what might be considered, in the context of the mutual acrimony and the dispute over the children, as upsetting and unattractive and became unacceptable and oppressive conduct such as to sustain criminal liability under s.2.
I also have no doubt that on the findings of the Crown Court that the appellant at the very least ought to have known that it amounted to harassment of Miss Jenkins.
The position as regards Mr Buttimore must be considered separately as there was a separate charge in respect of the course of conduct towards him. Although the instances involving Mr Buttimore were fewer in number and no regard could be paid to matters occurring before 13 June 2005 (and in particular what happened on 7/8 June 2005), as the charge related only to maters after that date, in my view there was also a course of conduct made out in respect of him. I also consider that the course of conduct amounted to harassment of Mr Buttimore; the occasions were indeed fewer, but there was a clear course of conduct of harassment which crossed the line to which I have referred and was such that it would sustain criminal liability. There also can be no doubt that the appellant ought to have known that the course of conduct amounted to harassment of Mr Buttimore.
In the result therefore, although I have found one part of the decision of the Crown Court to be wrong, it is my view that the question of law should be answered in the affirmative. The appellant was rightly convicted on the appeal to the Crown Court and the appeal should be dismissed.
Mrs Justice Dobbs:
I agree.