Hipgrave & Anor v Jones

The claimant in this action sought an injunction under the Protection from Harassment Act 1997 (“PHA”) against three defendants. This appeal from the judgment of His Honour Learned Judge Hamilton QC raises and important point of principle as to the standard of proof required to entitle a claimant to such an injunction.

There were a number of incidents which the learned judge had to consider at the trial. It lasted five days. The claim succeeded before the learned judge on nine out of 11 incidents relied on. But four of the incidents proved related only to the second defendant. He has not appealed, either in respect of those, or in respect of the further three incidents in which he was involved jointly with the first defendant.

The incidents which relate to the first and third defendants, who have appealed, can be summarised as follows (the numbers are those given in the judgment):

After hearing argument, the learned judge ruled that he should apply the civil standard of proof in considering the case. The civil standard of proof is usually referred to as the balance of probabilities, and its nature will be considered below in more detail.

As noted above, of the various incidents, five involved the first defendants and only two involved the second defendant. That gives rise to a separate issue as to whether the two incidents involving the second defendant amounted to a course of conduct within the meaning of the Act.

The first defendant lives near the claimant. The second defendant was the first defendant’s former partner. The third defendant lives well away from the area in which the claimant and the first defendant live. She is the first defendant’s sister.

The learned judge stated that there had been a considerable amount of very bad blood and a number of incidents between what he said could only be described as two separate camps. He found that the effect on the claimant had been profound, and that the first defendant had also been severely affected by the continuing disputes between the two camps. He found that the claimant’s friends and family were afraid to visit her and her life had become a living nightmare. She has had counselling and been treated with anti-depressants. The learned judge said that, although some of the incidents might appear to be trivial, some appeared more serious. But the PHA is designed to protect people against the drip drip of repeated incidents. He had no doubt that, if he were to find that the matters of which the claimant complains were established against the defendants, then, subject to the point relating only to the third defendant, the incidents amounted to the harassment of the claimant.

Incident number 5 occurred at about 8pm when a police officer came to the claimant’s house to take a statement. The first and third defendant together with two other people came to the claimant’s house. The party who had come to the house kicked on the front door, banged on the windows, and shouted abuse, frightening the occupants. In due course those outside were in fact arrested. The first defendant was to the rear on the path outside. The third defendant amongst others was taken to court but elected to be bound over.

An account was given of the incident by a police officer, WPC Lynn Griffiths. After describing the incident at the house, she went on to refer to something that occurred about four hours later, at the police station in the early morning of 11 January. She said:

“I was in the custody area at Dunstable Police Station where I was informed that Joyce Hipgrave [the third defendant] was outside. I went and spoke to her and at 0030 hrs arrested her for witness intimidation and cautioned her to which she made no reply. I walked her through to an interview room and waited with her as the custody sergeant was busy dealing with another prisoner. Whilst waiting for her to be booked into custody, Joyce said to me words similar to ‘this argument is just the beginning. She hasn’t seen fucking anything yet’.”

In incident number 6 on 19 May, the first defendant, and subsequently the second defendant, came back to the gate of the claimant’s house, where the first defendant threatened to hit the claimant, and the second defendant threatened to hit her boyfriend who was present.

In incident number 8 on 14 June, at Bovington market the claimant was with her mother and her boyfriend, when the first and second defendants came up to them. The first defendant tried to hit the claimant, but her mother got in the way. The claimant ran behind a market stall man, who told them to leave.

In incident number 9 on 13 September, at the Asda supermarket, the claimant was with her mother and boyfriend. She was approached by the first and the third defendant together. The third defendant said to her that if she thought she had had it bad with the first defendant, that was nothing compared to what she was going to do. She said, “wait till you get outside you’re going to die”. Whilst she was saying that, the first defendant was kicking or tapping with her foot the back of the claimant’s trainers.

Incident number 10 on 14 October occurred when the first and second defendants blocked the main entrance into the housing estate, where the claimant lived, with their car. When the claimant and her mother and the claimant’s boyfriend approached to get into the housing estate in their car, the first and second defendant came towards them, tried to open the car door on the claimant’s side to get at her, and threatened her that once the second defendant’s case was over they were going to kill her.

Having heard the witnesses, the learned judge concluded, with certain reservations, that he found the claimant an impressive witness. He found that the first defendant gave evidence that could not stand with the evidence given by the police constable. Having said that, the learned judge went on to say that he thought she was doing her best to give her version of events as she had seen them. In respect of the third defendant, the learned judge also found that she had given evidence that could not stand with the police evidence. He found her version of events unsatisfactory, even making allowances for certain difficulties which she had in giving evidence.

The learned judge then reminded himself of the burden and standard of proof and asked himself “what is the overall impression that I am left with on the balance of probabilities having seen all these witnesses?” He unhesitatingly accepted the evidence of the police constable. That, he said, was fatal to the creditability of the third defendant, and very adversely affected the first defendant’s credibility. He said that he unhesitatingly preferred the case put forward on behalf of the claimant and found that on the balance of probabilities each of those incidents was established. He found that, where one of the defendants was with another person, they were effectively on a joint enterprise with the less or non-active partner encouraging what was going on by presence. Thus he found proved against the first defendants incidents 5, 6, 8, 9 and 10 and against the third defendant incidents 5 and 9. He had no doubt at all that the allegations that he had found proved in relation to the first defendant amounted to actual harassment as laid down in the 1997 Act.

As to the third defendant, he directed himself in accordance with authorities which I shall mention and asked himself:

“is there some form of nexus that indicates that these are not just two specific isolated occasions?”

He then said as follows:

“In my judgment there is, notwithstanding what took place on 13 September was a chance meeting, I must remember what the third defendant had said, which I unhesitatingly find that she did say, as recounted by the police officer “this argument is just beginning. She hasn’t seen fucking anything yet”. That and the family connection and the fact that the third defendant was, on this occasion, part of a small family group consisting of herself and the first defendant, do, in my judgment, establish a sufficient nexus and connection between the two incidents for me to come to the conclusion, as I do, that in the case of the third defendant harassment has been established.”

The first and third defendants both appeal on the ground that the learned judge ought to have applied the criminal and not the civil standard of proof. The argument on this point was advanced by Miss Davies for the first defendant. Her submissions were adopted by Mr Challenger for the third defendant.

The PHA has been amended by the Criminal Justice and Police Act 2001, s 4(1), and by the Police Reform Act 2002, s 107(2) and sched 8. As amended, the PHA provides:

A person reading the text of the 1997 Act without reference to case law might form the impression that the standard of proof:

Harassment can cover a very wide range of conduct. It may involve actions alone, or words alone (s 7(4)), or both. The actions may be so grave as to amount to criminal offences against public order, or against the person, which cause serious alarm, or they may be little more than boorishness or insensitive behaviour, so long as it is sufficient to cause distress. The words may be, at one extreme, incitements to, or threats of, violence that cause alarm, or at the other, unwelcome text messages sent, for example, to a woman wrongly perceived to be a girlfriend. The conduct may be that of an individual, or of an organisation, including the news media: Thomas v News Group [2001] EWCA Civ 1233; [2002] EMLR 4, CA. It may include strip searches (subject to the meaning of “a course of conduct”): Home Office v Wainwright [2001] EWCA Civ 2081, per Buxton LJ at para [62].

The 1997 Act is one of the many different common law and statutory provisions which provide remedies which protect privacy: Wainwright v Home Office [2004] 2 AC 406, 419F. It is relevant to have regard to Article 8 of the European Convention on Human Rights in interpreting it, to the extent that it implements the state’s positive obligation to protect individuals from interference with their private lives. But it is also necessary to have regard to the fact that an order under the Act may interfere with the private lives of defendants and their freedom of expression, and not just of the individual (as the order does in this case) but also of the news media.

Articles 8, 10 and 11 of the Convention read as follows:

The main submission for the defendants is that an application for an injunction under s 3 of the PHA 1997 is akin to an application for an anti-social behaviour order (“ASBO”) under the Crime and Disorder Act 1998, s 1 (“CDA”). The House of Lords in R v McCann [2003] 1 AC 787 has held that applications for ASBOs are civil proceedings to which the criminal standard of proof applies. Therefore, it is argued, the criminal standard of proof should apply to applications for an injunction under the PHA 1997. It is noted that breach of an injunction is not, as is normally the case, a contempt of court, but, by s 3(6), an offence carrying the same five-year maximum sentence as applies to breach of an anti-social behaviour order.

In order to render the proceedings and issues intelligible it is necessary to set out section 1 of the CDA. It appears in Part I of the Act under the heading “Prevention of Crime and Disorder”. The material parts of section 1 (as amended by the Police Reform Act 2002) read as follows:

“(1)

An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged ten or over, namely –(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect relevant persons from further anti-social acts by him; …

(3)

Such an application shall be made by complaint to the magistrates’ court …

(4)

If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates’ court may make an order under this section (an ‘anti-social behaviour order’) which prohibits the defendant from doing anything described in the order.

(5)

For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.

(6)

The prohibitions that may be imposed by anti-social behaviour order are those necessary for the purpose of protecting persons (whether relevant persons or persons elsewhere in England and Wales) from further anti-social acts by the defendant.

(7)

An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.

(8)

Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.

(9)

Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order.

(10)

If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is guilty of an offence and liable –(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(11)

Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 1A of the Powers of Criminal Courts Act 1973 (‘the 1973 Act’) in respect of the offence.”

The relevant authority and relevant persons are defined by s 1(1A) of the Act (as amended). By s 66 of the Police Reform Act consultation is required with the police before an application is made for an ASBO.

A new section 1B was inserted by the Police Reform Act 2002, s 63. This provided for the relevant authority to make and application for an ASBO in the county court. It can do this either if it is already a party to such proceedings, or, if it considers that a party to such proceedings is a person in relation to whom it would be reasonable for it to make an application, then by making an application to be joined to those proceedings to enable it to apply for an ASBO. The new s 1B includes:

“(4)

If, on an application for an order under this subsection it is proved that the conditions mentioned in section 1(1) are fulfilled as respects that other party, the court may make an order which prohibits him from doing anything described in the order.”

A similar power to prohibit a person “from doing anything described in the order” is also given under the new s 1C (introduced by the Police Reform Act 2002, s 64) against an offender on conviction in criminal proceedings. A similar power is given to make interim orders to the same effect under the new s 1D 1C (introduced by the Police Reform Act 2002, s 6).

In McCann Lord Steyn concluded that the proceedings under the CDA 1998 are civil proceedings. He then reached his conclusions as to the standard of proof as follows in para 37:

“Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586d-h, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).”

It is true that the definition of anti social behaviour in s 1(1) is very similar to the definition of “harassing” in s 7 of the PHA 1997. But the definitions are not the same. Under the CDA anti-social behaviour is defined as:

“... that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself.”

Under the PHA there is no restriction on the membership of a household, and a mental state that has to be proved, “knows or ought to know”, which is to be determined objectively (s 1(1)(b), (2)).

There are other differences between the two statutory provisions.

Miss Davies also submits that there are analogies with sex offender orders under CDA 1998, s 2, and orders under the Football Spectators Act 1989 (as amended by the Football (Disorder) Act 2000. Under the former, the jurisdiction arises only in respect of offenders, that is those who have been convicted. In respect of the latter the jurisdiction arises either on conviction, or on proof that the respondent has within the last 10 years “caused or contributed to any violence or disorder in the United Kingdom or elsewhere”: see ss 14A and 14B and Gough v Chief Constable of Derbyshire Constabulary [2002] EWCA Civ 351;QB 1213 [13]. They are orders made on the application of public authorities, and the court is not faced with a direct conflict between the rights of a claimant and the rights of the defendant.

They do not seem to me to take the matter any further than the argument in relation to ASBOs. Nevertheless, in Gough the court held that the magistrates should “apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard” (para [90]). And in relation to sex offender orders in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354 paras [30]–[32], the court held that the civil standard should apply to both threshold conditions (namely “(a) that the person is a sex offender and (b) that the person has acted ... in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public”). As to condition (b) Lord Bingham of Cornhill CJ added: “with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them”. The analogy with these cases would be closer in a case concerned with s 5 of the PHA. The criminal standard will, in the usual way, be applied before there can be a conviction for breach of a restraining order: see R v Evans (Dorothy Gertrude) [2004] EWCA Crim 3102.

Mr Salter for the respondent submitted that a key difference between the orders and an injunction under the PHA, is that the injunction is a private remedy sought by an individual, as opposed to a public authority. An order under the CDA cannot be sought by an individual.

This submission is correct. While the definitions under the two Acts are similar, the mischief to which the CDA is directed to remedying is the “prevention of crime and disorder”, in the words of the heading the section. As described by Lord Steyn at para 16, it is a social problem which is both more serious, and narrower in scope, than the mischief at which the PHA is directed. While the PHA is apt to protect individuals from tortious conduct, it is also apt to protect them from conduct which is not tortious at common law (Wainwright para [42]). The PHA also provides a sanction greater than available under the law for contempt of court in the event of repetition of prohibited conducted, whether it would be tortious at common law or not. So it provides a stronger remedy than an injunction to restrain a tortious act. But as its short title suggests, it is directed to giving protection from harassment. The Court of Appeal was prepared to assume in Thomas v News Group (para [16]), that the mischief to which it was directed was to provide a remedy for the practice of stalking, but found that it applied to other conduct.

Mr Salter submitted that a second key distinction is that ASBOs and the orders referred to by Miss Davies impose restrictions on an individual’s freedom of movement (that is liberty), association or conduct, which, but for the order in question would be lawful conduct. By contrast, he submits that the conduct restrained by the PHA is that which adversely impacts on another’s interests, and which can be said on an objective basis to be harassing. To that extent he submits and an injunction under PHA is less of an interference with a defendant’s rights than the other orders.

It must of course be recalled that, by s 1(3) there is (among other statutory considerations which exclude certain conduct) an exclusion to allow conduct that would cause distress, where, in the circumstances, the pursuit of the course of conduct was reasonable. It is the law that intentional infliction of distress may be lawful, for example the publication of defamatory matter which is true, or fair comment, or in the public interest (see Thomas v News Group), and pursuit of one’s own economic aims, such as in a strike (such cases are considered under the law of conspiracy), or in a political demonstration. In the case of speech, Article 10 of the European Convention on Human Rights is obviously engaged whenever an injunction is sought. In the case of other activities, it is likely that other articles of the Convention will be engaged, depending on the facts of the particular case, including a defendant’s rights under Article 8 (Right to respect for private life) and Article 11 (Freedom of assembly and association).

It is also the law that damages for distress alone may not be recoverable at common law (see Wainwright). The purpose of s 3(2) of PHA is thus not to give the court jurisdiction to award damages (that follows from s 3(1) making the breach of s 1 the subject of a civil claim). The purpose of s 3(2) is to make clear that damages for distress alone may be awarded. The power to issue an injunction is also implicit in s 1 and is assumed to exist in s 3(3) and 3(6).

There is some guidance to be found on the test to be applied in civil proceedings for the grant of an injunction. This casts light on the test for granting other relief. As the learned judge said:

“Further, the civil remedy is for an actual or (my underlining) apprehended harassment. It is difficult to see precisely how one would apply the criminal standard to an apprehended harassment or it making any difference to applying the civil standard to such an apprehended harassment.”

In Thomas v News Group the Court was not directly concerned with injunctions. The issue, as it was eventually refined (para [15]), was whether it was arguable that the publications in question constituted “harassment”. This in turn depended upon the interpretation of the word “reasonable” in s 1(3)(c). So the Court’s attention was directed to the defendant’s rights under Article 10.

Freedom to protest at the behaviour of other members of the public, including neighbours, is an important freedom. This is a right which is enjoyed by all, not just the press, and this right was clearly also engaged in the present case, albeit to a minimal extent.

On the other hand, the claimant will commonly be entitled to submit (as Ms Thomas did, see para [46], and as the claimant can here) that the defendant’s conduct is an interference with her rights. In both these cases the rights engaged are the claimant’s rights under Article 8, but in other cases may also include her rights under Articles 10 and 11.

As the Court noted in Thomas v News Group at para 21:

“... freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10(2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient.”

In deciding what meaning to give to “reasonable” in that context, the Court of Appeal (at para [24]) interpreted the PHA to give effect to it in a manner which is compatible with the Convention (pursuant to HRA, s 3). The Court arrived at the conclusion (para [50]) that the test of reasonableness requires consideration:

“... whether a proposed series of articles, which is likely to cause distress to an individual, will constitute an abuse of the freedom of press which the pressing social needs of a democratic society require should be curbed.”

In Cream Holdings v Banerjee [2004] UKHL 44; [2004] 3 WLR 918 (as in Thomas) the Court had to consider the effect of s 12(3) of the Human Rights Act 1998. It is important to note that there will be many cases under the PHA where the injunction sought will also engage s 12(3) of the HRA, as the interim injunctions issued in this case did.

Section12 of the HRA provides:

“12.

– (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2)

If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied –

(a)

that the applicant has taken all practicable steps to notify the respondent; or

(b)

that there are compelling reasons why the respondent should not be notified.

(3)

No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4)

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to ...

(5)

In this section –

‘relief’ includes any remedy or order (other than in criminal proceedings).”

It is to be noted that s 12(1) applies to injunctions granted at trial, as well as to pre-trial or interim injunctions. It also applies to awards of damages, since a liability to pay damages can interfere with freedom of expression.

At para [12] in Cream Lord Nicholls noted in relation to s 12(3) of HRA:

“12.

As with most ordinary English words ‘likely’ has several different shades of meaning. Its meaning depends upon the context in which it is being used. Even when read in context its meaning is not always precise. It is capable of encompassing different degrees of likelihood, varying from ‘more likely than not’ to ‘may well’. In ordinary usage its meaning is often sought to be clarified by the addition of qualifying epithets as in phrases such as ‘very likely’ or ‘quite likely’.”

At paras [22]–[23] Lord Nicholls concluded:

“22.

Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.

23.

This interpretation achieves the purpose underlying section 12(3). Despite its apparent circularity, this interpretation emphasises the importance of the applicant’s prospects of success as a factor to be taken into account when the court is deciding whether to make an interim restraint order. It provides, as is only sensible, that the weight to be given to this factor will depend on the circumstances. By this means the general approach outlined above does not accord inappropriate weight to the Convention right of freedom of expression as compared with the right to respect for private life or other Convention rights. This approach gives effect to the parliamentary intention that courts should have particular regard to the importance of the right to freedom of expression and at the same time it is sufficiently flexible in its application to give effect to countervailing Convention rights. In other words, this interpretation of section 12(3) is Convention-compliant.”

The House of Lords has given guidance as to how a tension between competing convention rights is to be addressed by the court. In re S (A Child)(Identification: Restriction on Publication) [2004] UKHL 47; 3 WLR 1129 concerned the interplay of the Article 8 rights of a child for whom anonymity was being sought and the Article 10 rights of those who wished to communicate and receive reports of proceedings in court. There is no reason why the guidance given by the House of Lords should not apply equally where there is a tension between different Article 8 rights.

At [17] Lord Steyn said there were four propositions:

“First, neither article [ie Arts 8 and 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied in each case. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”

This is consistent with what the Court said in both Cream and Thomas. It must also apply where there is a conflict between the Article 8 rights of one party (say the claimant) and the rights under Article 8 or Article 11 of a defendant.

It is plain that the criminal standard of proof is ill-adapted to the degree of flexibility that is required to be applied in the light of the foregoing authorities. The criminal standard is designed to protect the rights of an accused person to a fair trial. In criminal proceedings the immediate consequence of a conviction is likely to be loss of liberty or property in the form of a fine or penalty. In criminal proceedings the prosecutor is normally the state. While the rights of the public to be protected from crime and disorder are engaged, there is rarely a direct impact upon the rights of individuals if a guilty person is wrongly acquitted. In civil proceedings under the PHA the court is normally faced with a direct conflict between the rights of individuals. The immediate consequence of the grant of an injunction or an award of damages under the PHA is not the loss of liberty, and the award of damages is compensation, not a penalty.

Although the breach of an injunction is an offence punishable with up to five years’ imprisonment, the defendant must come back before the court before that can be imposed, and the court then has an opportunity to consider whether such a punishment is necessary and proportionate. By that time there will be the new element of a breach of an existing injunction. So the full measures designed to protect the accused facing punishment are not required at the stage when the accused is a defendant to a civil claim.

In the case of an ASBO, the finding that the threshold condition under the CDA is satisfied does not necessarily lead to the making of an order, but it cannot lead to the grant of any other relief to the applicant. There is no alternative corresponding to an award of damages. So, to that extent, the consequences are potentially more serious than those in civil proceedings under PHA, s 3, and the protection required by a defendant to an application for an ASBO are correspondingly greater.

It is also to be recalled that Lord Steyn’s opinion in McCann was partly based on pragmatism (“in my view pragmatism dictates that the task of magistrates should be made more straightforward”). Orders under the PHA are made not by magistrates but by learned judges in the High Court or in the county court. As the learned judge observed:

“Learned judges are well used to applying enhanced or basic civil standards of proof, for example, in sexual abuse cases, so the need for a pragmatic approach when the case is being heard by a county court learned judge is not really there.”

Miss Davies recognised the significance of the fact that s 3 of PHA also covers apprehended breaches. She submitted, consistently with her other submissions, that a court would have to be satisfied to the criminal standard that the conduct has caused the apprehended breach.

The difficulty with this submission is that it is not consistent with the flexible approach required by Cream and In re S. It pays insufficient regard to the fact that convention rights of the claimant are engaged, and focuses unduly upon the rights of the defendant.

One reason given by the learned judge for adopting the civil standard was that he could see no reason why that standard should not apply in a case in which the only claim was for damages. He considered it would be absurd if the standard changed just because the claimant claimed an injunction. Miss Davies also recognised the difficulty in interpreting the Act to require the criminal standard to apply before an award of damages could be made. She could advance no reason for that. But here it is a matter of chance that the only relief claimed is an injunction, and that no damages are claimed.

These difficulties point to the civil standard being applied to determine whether there is a breach or not. The need to protect the defendant from disproportionate consequences can then be met by the judge considering whether, on the facts of the case, any (and if so what) injunction is necessary and proportionate. In carrying out this exercise, in a case where the court is being asked to make an injunction, whether before trial, or at trial, the court must approach the matter as directed in In re S, if, as will normally be the case, a Convention right of the claimant is engaged (a Convention right of the defendant will always be engaged).

The civil standard of proof was explained by Lord Nicholls in In re H (Minors)(Sexual Abuse:Standard of Proof) [1996] AC 563 (a case referred to by him in Cream at para [21]). He said this at pp586–87:

“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under-age step-daughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’.

This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ in Hornal v Neuberger Products Ltd [1957] 1 QB 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”

This passage was quoted by the Court (The President, Thorpe and Mantell LJJ) in LU (a child) & LB (a child) [2004] EWCA (Civ) 567 para [6]. After reviewing B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 (which is also relied on by Miss Davies) and McCann, the Court concluded at para [13]:

“We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as ‘largely illusory’. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H. That test has not been varied nor adjusted by the dicta of Lord Bingham or Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division, on the one hand, between crime and preventative measures taken to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare nor to apply the reasoning in McCann to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment therefore Bodey J applied too high a standard of proof in the case of re ET and the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the Family Proceedings Courts.”

There are passages in this paragraph referring to children, and to the nature of family proceedings. Lord Nicholls in H did not regard family proceedings to be different from other civil proceedings for this purpose. And the analogy is good to the extent that care proceedings are one of the means by which the state protects the rights of children and others under Article 8.

In my judgment there should also be recognised that there is a division, on the one hand, between crime and preventative measures under CDA, s 1 taken to restrain defendants for the benefit of the community, and the protection of the rights of individuals, which civil proceedings under the PHA are designed to ensure.

I conclude that the civil standard of proof should be applied to civil proceedings under s 3 of the PHA. The application of this standard will require the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them, or not proving them, that is, the implications not only for the defendant, but also for the claimant.

In the light of some of the matters raised in this judgment, I note that this part of the appeal has been directed solely to the learned judge’s findings of fact. It has not been suggested that, having made the findings that he did, he should not have granted the injunctions that he did grant. On the facts of this case, there was no possible argument to be raised as to the appropriateness of the injunctions. There was no claim for damages. But it is important to recall that in another case a judge might well make findings of fact that harassment had occurred, and still consider that it is not necessary or proportionate to grant an injunction. In any event an injunction should be no more extensive than is necessary and proportionate. Where the defendant’s rights, such as those of freedom of speech and assembly, are engaged, the court will bear in mind considerations such that not all speech is of equal value under the Convention. Political speech is given a high degree of protection, whereas abuse and incitement to violence may merit no consideration at all.

It follows that in my judgment the appeal of the first defendant must be dismissed.

The third defendant has an additional ground of appeal. She was found to be involved in only two incidents, one on 10 January 2003 and one on 13 September 2003.

In her skeleton argument (not settled by Mr Challenger) two points were pursued. First , while accepting that the incident of 13 September 2003, was harassment, she argued that the incident on 10 January was not. The argument was that the abuse was directed at the police officer and not the claimant, although the claimant was in the house behind the police officer. The police officer’s evidence, accepted by the learned judge was that she feared for her own safety and the safety of the occupants of the house. Mr Challenger did pursue this point. It is clearly unarguable.

The second point, which was advanced fully by Mr Challenger was that there is insufficient nexus or link between the two incidents to amount a course of conduct. He cited Lau v DPP [2000] 1 FLR 799. At p 801 Schiemann LJ observed that “the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made”.

In R v Hills [2001] 1 FLR 580 the Court of Appeal set aside a conviction. The appellant and the complainant had been partners of long standing. Although a number of incidents of assault were alleged, only two were proved. And between those two incidents it could be seen that the couple got on well together. The appeal succeeded on the lack of evidence showing any link between the two incidents proved, such that the two incidents could be described as a course of conduct.

In Pratt v DPP [2001] EWHC 483 (Admin) the complainant was again a victim of domestic abuse. The incidents were about three months apart. The parties were separated living unhappily under the same roof throughout the relevant period. At para 12 Latham LJ stated that the case was close to the borderline and added: “The mischief which the Act is intended to meet is that person should not be put in a state of alarm or distress by repetitious behaviour.” All these cases turn on their own facts.

There are numerous other cases. For example, in Kelly v DPP [2002] EWHC (Admin) a conviction in respect of three telephone calls within five minutes was upheld. Burton J adopted Latham LJ’s statement that the mischief which the PHA was intended to meet is that persons should not be put in a state of alarm or distress by repetitious behaviour. He was concerned with a case at the opposite extreme, namely incidents very close together. He said:

“23.

It seems to me that if three telephone calls are made they are capable of amounting, and on the facts the justices found that they did amount, to three incidents, just as the writing of three letters or the sending of three e-mails could amount to three separate incidents of harassment. The shortage of time within which they were sent was only a factor, just as the distance in time between them would be a factor if that were the situation, for example in the case of Pratt.”

It is not helpful to consider the facts of a range of different cases. The words “course of conduct” are ordinary English words: see R v Evans (Dorothy Gertrude) [2004] EWCA Crim 3102. It is for the tribunal of fact to evaluate the incidents, while of course bearing in mind that there must be “at least two occasions” (s 7(3)), and that there must be a link between the two to reflect the meaning of the word “course”. In the cases of violence, or threatened violence, between individuals living together, or as neighbours, there is little need to pause for long over the implications of the Convention. But in cases where a real issue of reasonableness of the conduct arises, it will be necessary to approach the facts in the light of the competing values (as the Court of Appeal did in Thomas), following the guidance given in Re S.

The strongest point made by Mr Challenger is that the two incidents found proved against the third defendant were spontaneous and unplanned. Further, he submits, the learned judge was in error in referring to the family connection.

It seems to me that the fact that the incidents were unplanned and spontaneous does not preclude the finding that they were part of a course of conduct. Those likely to be found to have harassed a complainant are likely to be people with some degree of abnormality or weakness. Stalking is not the act of a normal person. Conduct can be unplanned and spontaneous and yet highly repetitious. An example would be where every time the complainant happens to bump into, or pass the house of, the harasser the harasser either screams abuse or expresses inappropriate terms of endearment, but the harasser never seeks out the complainant. The family link between the first and third defendant would not, of itself, make the third defendant’s conduct on the two occasions part of a course of conduct, but on the facts it was the family solidarity which led the third defendant to be involved at all, and gave rise to the apprehension that she might continue to behave in the same way in the future, if and when the claimant happened to meet her. And the threatening language used by the third defendant speaks for itself. If a person threatens something, and later does something similar, it is natural for the tribunal of fact to find a link.

The issue was essentially one fact for the learned judge. The learned judge’s finding cannot be faulted.

It follows that the appeal of the third defendant is also dismissed.