Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Before:
THE HONOURABLE MR JUSTICE SILBER
Between:
KOSAR | Appellant |
- and - | |
BANK OF SCOTLAND PLC T/A HALIFAX | Respondent |
(DAR Transcript of
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Mr Vollenweider (instructed by Keith Park solicitors) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
Judgment
Mr Justice Silber:
Saika Kosar, (“the appellant”), appeals by way of case stated against a decision of District Judge Richardson sitting in the Magistrates’ Court in Manchester on 23 February 2010, by which he ordered in an ex parte hearing preferred by the appellant against the Bank of Scotland alleging an offence of harassment by the Bank of Scotland contrary to section 2(1) of the Protection from Harassment Act 1997 that the information be withdrawn, on the grounds that it did not reveal an offence known in law.
Accordingly, the District Judge said at paragraphs 2 and 3 of the case stated that:-
“2. It is contended by the appellant that a body corporate which commits the offence of harassment is contrary to section 2(1) of the Protection from Harassment Act 1997. The offence is set out in section 1(1) of the Act that
(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.
I was referred to the Interpretation Act 1978. It was contended that ‘person’ includes a body of persons corporate or unincorporate.
3 I was of the opinion that section 7(5) of the Protection From Harassment Act 1997 expressly contradicts that interpretation of ‘person’. It states:
‘References to a person, in the context of the harassment of a person, are references to a person who is an individual’.
In my view, this section means that the effect can only be committed by a person who is an individual against a person who is an individual.”
The question posed for this court in the Case Stated is
“Does section 7(5) of the Protection from Harassment Act 1997, which states ‘references to a person, in the context of the harassment of a person, are references to a person who is an individual’ preclude a company from committing a criminal offence of harassment contrary to section 2(1) of the same Act’?”
The case for the appellant is, first, that section 7(5) of the 1997 Act as amended limiting the scope of the offence to individuals only applies to victims and not to perpetrators. Second, it is submitted that the District Judge was wrong to find otherwise.
My starting point is the Interpretation Act 1978, which in a combination of Schedule 1 and Part 1, provides that, unless a contrary intention is shown, “the word ‘person’ includes a body corporate or incorporate.” Section 7(5) of the 1997 Act as amended clearly constitutes a “contrary intention”, but the issue on this appeal can be confined, therefore, to the question of whether section 7(5) of the 1997 Act as amended applies to the perpetrator of the Act, so as to negate the provision in schedule 1 of the Interpretation Act 1978.
I consider for at least three overlapping reasons that section 7(5) only applies to a victim, because the words “references to a person, in the context of harassment of the person” are references to a person who is an individual, as this wording shows that it only applies to victims, for three reasons.
First, section 7(5) only changes the rule of the Interpretation Act as it applies to “harassment of a person”. This means a victim, and the legislator specifically did not apply this provision to a perpetrator, with the result that the presumption in the Interpretation Act 1978 still applies and that has not been ousted.
Secondly, if Parliament had contended that only individuals could be liable as perpetrators, then section 7(5) as amended would have read something to the effect that “references to a person in the context of this provision are references to a person who is an individual”. That is a wording which has not been used by the legislature.
Third, if Parliament had intended that bodies corporate could not be victims but could be perpetrators, they would in my view have adopted precisely the wording that has been used in section 7(5) of the 1997 Act. Additional reasons have been put forward in support of this conclusion in the skeleton by Mr Vollenweider, who appears for the appellant, but it is unnecessary for me to refer to them in the light of the clear conclusions to which I have referred and which I have just set out.
For those reasons, I answer the question posed to the High Court:-“Does section 7(5) of the Protection from Harassment Act 1997, which states ‘references to a person, in the context of harassment of a person, are references to a person who is an individual’ preclude a company from committing a criminal offence of harassment contrary to section 2(1) of the same Act’?”
with the answer “No”.
Thus, this appeal is allowed.
Order: Appeal allowed.
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Mr Justice Silber: Thank you for your help.
Mr Vollenweider: My Lord, I appreciate you said of course that you are not concerned with costs. Can I just explain my solicitors’ predicament, because of course this is a private prosecution, and of course even were we to be successful in the court below, I would not be able to ask for any costs but the costs of this appeal, given the fact that they are not to blame for it. And in such circumstances, I wonder whether your Lordship would be so kind to grant costs from central funds?
Mr Justice Silber: (inaudible)
Mr Vollenweider: Well your Lordship, I am not going to detain your Lordship, but may I just, while I dig out the Interpretation Act to also refer to that, I shall not keep your Lordship.
Mr Justice Silber: How long are you going to be?
Mr Vollenweider: As long as it takes for the Interpretation Act to come over from my chambers.
Mr Justice Silber: (inaudible) about that. But it is the next point I am concerned about, the question of costs.
Mr Vollenweider: Well, I have my Archbold to hand, so I am sure it will not take very long.
Mr Justice Silber: (inaudible) Archbold and the authorities. How do you want to deal with it?
Mr Vollenweider: Your Lordship, could I ask you to simply put the matter back, and then I can ensure that you have copies of that relevant part --
Mr Justice Silber: When would you like to deal with it?
Mr Vollenweider: At your Lordship’s convenience.
Mr Justice Silber: Are you going to be here this morning, in any event?
Mr Vollenweider: Well, I am going to be here. I have brought other work with me.
Mr Justice Silber: Can we say I will deal with you then at -- can you get some photocopies of what is needed?
Mr Vollenweider: Of course.
Mr Justice Silber: And I will deal with -- well, I do not think we can deal with costs; have you actually served -- anything I could order would be costs, I cannot deal with an assessment against the central fund without any notice having been served on other parties, something determinative.
Mr Vollenweider: Well, the only -- certainly, the other side would not be challenging it, because it is not being asked for costs against them.
Mr Justice Silber: No, no, but the people who pay from central funds would. The alternative way we could deal with it (inaudible) would be to deal with it in writing.
Mr Vollenweider: Yes.
Mr Justice Silber: Now if you sent me your submissions and exactly how you could deal with it, and also deal as well with the additional costs, which does concern them.
Mr Vollenweider: Yes.
Mr Justice Silber: Which is whether I should just say that you should get your costs as set out or do you want the assessment.
Mr Vollenweider: Yes.
Mr Justice Silber: So what I would like would be if you present something to me in writing.
Mr Vollenweider: Yes. If I can do that today, I will do.
Mr Justice Silber: (inaudible)
Mr Vollenweider: But in the event that I am able to deal with it today, at a convenient moment, either just before lunch or otherwise, that I can provide your Lordship with that information --
Mr Justice Silber: I am here all day. I am not going to leave here. I do not particularly want to stay and do it at 4:30 but are you opposed to me getting ready for the other case? In that case, what I am going to do is deal with it either later this morning or, alternatively deal with it in writing. It is up to you how you want to deal with it. I would like to deal with it in writing.
Mr Vollenweider: I am grateful. Given the amount of work I have, and I am sure your Lordship has to do in London as well, and I am going back there this evening, if I can get it done today while it is fresh.
Mr Justice Silber: Thank you very much.
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