Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2013/2013_257.html
Cite as: [2013] JRC 257
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Chapman -v- AG [2013] JRC 257 (20 December 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_257.html Cite as: [2013] JRC 257 |
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Magistrate's Court Appeal - appeal against conviction and sentence.
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Before : |
J. A. Clyde- Smith, Esq., Commissioner and Jurats Morgan and Crill. |
Mark Wayne Chapman
-v-
The Attorney General
Advocate A. M. Harrison for the Appellant.
Advocate A. J. Metcalfe, Esq., for the Attorney General.
JUDGMENT
THE commissioner:
1. The appellant appeals against his conviction and sentence before the Magistrate's Court on 23rd May, 2013, of an offence under Article 3(1) of the Crime (Disorderly Conduct and Harassment) (Jersey) 2008 ("the Harassment Law").
2. The appellant had been in a relationship with Miss Kim Anne Campbell ("Miss Campbell") from April 2010 to November 2011. They had a child who was born in 2011. Miss Campbell also has an older child from a previous relationship. The break-up of the relationship between the appellant and Miss Campbell was acrimonious and there were issues as to the appellant's contact with the child.
3. In February 2012, the appellant applied to the Family Division of the Royal Court for contact with and parental responsibility for the child. On 4th April, 2012, the Family Court ordered the appellant to have supervised contact with the child once a week through Millie's.
4. As in any acrimonious break-up, there had been many twists and turns in the history of the dealings between the appellant and Miss Campbell but for the purposes of this judgment we are going to highlight what we see as the key events for the purposes of this appeal.
5. On 15th May, 2012, the appellant attended at the States of Jersey Police and made a statement alleging incidents of domestic abuse by Miss Campbell almost a year before namely between July 2011 and November 2011. Miss Campbell was interviewed by the police on 17th May, 2012, in respect of these allegations, but no action would appear to have been taken by the police in respect of them.
6. On 18th May, 2012, Miss Campbell made a statement to the police alleging harassment by the appellant between June 2011 and April 2012 in the form of abusive texts. The appellant was interviewed by the police on 22nd May, 2012, and accepted that he had sent abusive texts, although he said this had been mutual; something not put to Miss Campbell in evidence. He was issued with an "allegation of harassment form" which he signed. The form was in the following terms:-
"An allegation of harassment has been made against you by Kim Campbell.
HARASSMENT IS A CRIMINAL OFFENCE under the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008.
Article 3(1) Offence - Harassment
A person must not pursue a course of conduct:- which amounts to harassment of another and that he/she knows or ought to know amounts to harassment of the other person.
Harassment can take many forms and examples can include:- wilful damage to property, assault, unwarranted verbal or physical threats, abusive communication or repeated attempts to talk to or approach a person who is opposed to this.
WARNING: The States of Jersey Police makes no comment as to the truth, or otherwise, of these allegations at this stage. This information is being brought to your attention in the spirit of crime prevention and to make clear to you that this allegation has been made.
You are now advised to cease any behaviour towards the above individual(s), which may cause them further harassment. Should you (or any person acting on your instruction) take such harassing action against them, you may be liable to arrest and prosecution."
7. It was accepted that following the issuing of that form, the appellant ceased communicating with Miss Campbell by text or phone and there was a period of relative calm for some six months.
8. On 13th July, 2012, the Family Court ordered that the appellant have supervised contact with the child through JFCAS but it would appear that he was seeking a greater level of unsupervised contact, including staying contact, which Miss Campbell was resisting and that these matters were live before the Family Court over the material period.
9. There then took place three incidents which the prosecution alleged and the Magistrate found constituted the offence of harassment. There was no dispute as to the incidents themselves as they were admitted by the appellant.
10. Miss Campbell had been attending a spiritual course run by "Feathers Healing", something of which the appellant was unaware, and on 27th October 2012, she posted a message on the "Feathers Healing" Facebook page, which read as follows:-
"Another fantastic evening with Carol Le Quesne and Kelly Pirouet at our psychic development course. I feel blessed to have met them both! I am on an amazing spiritual journey which is enhanced by Carol. I truly believe blessed to have met you both... To have Carol as a teacher and mentor is a privilege. Kells is an angel with magical healing hands and so much more!!! Love you both xxx will miss you this week enjoy your family time away xoxoxo"
11. The appellant said in evidence that a friend sent him the link to this Facebook page and on 27th November, 2012, he posted this comment on that page in response:-
"Mark wrote "whose looking after the children, whilst your taking your journey Kim???""
12. That same morning, Miss Campbell received an automated Facebook e-mail informing her about the appellant's comment and it would appear that she accidentally clicked a link which took her to the appellant's own Facebook page, which she said she had not visited before, where she found that he had posted a comment (it was not clear when but it was some time before 27th November, 2012) which read as follows:-
"Still having problems with adulter and abuser ex-girlfriend Kim, please men and women be very careful of this woman, she doesn't mind either sex .... total nut case".
13. On 7th December, 2012, the appellant sent a Christmas card to Miss Campbell which contained some photographs from before her relationship with him. The card contained a hand written note as follows:-
"Kim.
I found these photo's in my personal stuff you packed. I don't require them; I have left a few of you and [the older child] for [the child's] sake for the future if she stays over."
The card was unsigned
14. The evidence before the Magistrate consisted of formal admissions and the live testimony of Miss Campbell and the appellant. The appellant was legally represented.
15. Article 17(1)(b) of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949, as amended, provides for a right of appeal against conviction or sentence. Article 20(3) provides as follows:-
16. The test on appeal against conviction from the Magistrate's Court to the Royal Court is set out in Rushton-v-AG 1989/174 where the Court said this:-
17. In Graham-v-Attorney General [2013] JRC 014, Bailhache, Deputy Bailiff, observed that an appeal to the Royal Court is not in the same terms as an appeal under Article 26 of the Court of Appeal (Jersey) Law 1961 where the appeal is taken from the Royal Court to the Court of Appeal. The terms of the statute give the Royal Court a wide discretion on appeal:-
18. Article 3 of the Harassment Law is in the following terms:-
19. There is a statutory defence to the offence set out in Article 4 of the Harassment Law but although that was raised in the latter part of the hearing before the Magistrate, it was not relied upon for the purposes of this appeal.
20. There is no Jersey case law on the interpretation of Article 3 of the Harassment Law, but it is well established that in matters of criminal law the Jersey Courts will look to English Law for guidance, in particular when the Law is, as here, based on an English statute, namely the Protection from Harassment Act 1997 (which also provides for civil remedies). The Magistrate, rightly, in our view, looked to the summary of what must be proved as a matter of law as set out by Simon J in Dowson & Others-v-The Chief Constable of Northumbria Police [2010] EWHC 2612 (where the civil tort of harassment was alleged which to succeed must be of an order to sustain criminal liability) as follows:-
21. There is no definition in the Harassment Law of what is meant by "harassment", Article 3(4) providing that it "includes to alarm the person or cause the person distress." According to the Oxford Dictionary, "to alarm" someone is to make them feel frightened, disturbed or endangered. "Distress" means extreme anxiety.
22. For the purpose of this appeal, we would draw out that part of Simon J's review of the English cases following the introduction of the Act:-
23. It will be a matter of judgment on the facts of each case whether the course of conduct complained of is of sufficient gravity to justify the sanction of the criminal law.
24. In Lau-v-Director of Public Prosecutions [2000] 1 FLR 799, a case involving two incidents some four months apart either side of a breakdown in a relationship, Schiemann LJ said at page 801G:-
25. Latham LJ considered these propositions in Pratt-v-The Director of Public Prosecutions [2001] EWHC Admin 483, where he said at paragraph 10:-
26. The incidents in this case are not widely spaced in time, but they are few in number.
27. The Magistrate considered each incident in turn, consistent with the approach of the court in Dowson, in order to decide whether it was capable of constituting an act of harassment, before standing back and considering whether the defendant pursued a course of conduct that amounted to harassment.
28. The Magistrate found Miss Campbell to be a credible witness and the appellant unconvincing:-
29. The Magistrate stressed the importance of context in a case such as this:-
30. The Magistrate found that the three incidents complained of did cause Miss Campbell distress and there is no appeal against that finding.
31. Taking the first incident, the Magistrate found that in posting this comment on the Feathers Healing Facebook page the appellant was motivated by spite; it was a sarcastic comment to which he did not expect an answer. It was done to humiliate Miss Campbell publicly with anyone who read the post. It demonstrated that the appellant knew about her private life. It was in breach of the harassment form and the appellant must have known that the communication would amount to harassment.
32. Mr Harrison, for the appellant, did not dispute the Magistrate's finding that this message was sarcastic, motivated by spite and targeted at Miss Campbell, but submitted that more was required to support the Magistrate's conclusion, following Dowson, that the post:-
(i) Was calculated in an objective sense to cause alarm or distress;
(ii) Was objectively judged to be oppressive and unacceptable (which may depend on the social context in which the conduct took place); and
(iii) Crossed the line between conduct that was unattractive or unreasonable and conduct which was of an order that it would sustain criminal liability.
33. Mr Harrison argued that the message was neither abusive nor threatening - it was sarcastic. Objectively, it did not appear to have been calculated to cause alarm or distress. A message that is merely sarcastic (as opposed to being abusive or threatening) does not meet the test of oppressive or unacceptable conduct and that whilst the comments might properly be described as unattractive or unreasonable, they did not cross the line. It could not, he said, properly be described as conduct that might torment Miss Campbell or which might sustain criminal liability.
34. In her evidence in chief, Miss Campbell said that she felt shaken by the message because it was an invasion of her privacy. She had sent a "private message" to a friend. However, in our view this was manifestly not a private message, as it had been posted on a website accessible by the public at large.
35. Furthermore in our view the "allegation of harassment form" was a warning against any future conduct on the part of the appellant that constituted the criminal offence of harassment; it did not prohibit (nor could it) any further communications between the appellant and Miss Campbell at all. It warned against further communications that were "abusive". It cannot be said that this message was abusive in itself and the Magistrate did not find that it was. In essence, it was the fact that a message had been posted on the site that distressed Miss Campbell rather than its contents.
36. From our reading of the transcripts we have reservations as to whether this incident, taken on its own, was capable of constituting an act of harassment.
37. In respect of the second incident, the Magistrate found that the message posted on the appellant's own Facebook page was abusive, being aimed at Miss Campbell's sexuality and morality. Objectively, it was oppressive and unacceptable. She found that it was targeted at Miss Campbell:-
38. Mr Harrison, for the appellant, limited his arguments in relation to this incident to the Magistrate's finding that this message was targeted at Miss Campbell. He said it was not sent directly to Miss Campbell and she only came across it by chance. He submitted that there was insufficient evidence to support the finding that the only reason for putting the message on his Facebook page was that he knew that she would come across it, or that other people would refer her to it. There was no evidence that Miss Campbell ever visited his Facebook page on purpose, or that amongst the appellant's friends and family there were individuals who might refer her to it. There was insufficient evidence, he said, to support the Magistrate's conclusion that his assertion that he believed his Facebook comments were only visible to his family and friends was not credible.
39. In our view this was, objectively, an abusive message and although we had reservations from reading the transcripts as to whether it was targeted at Miss Campbell, it cannot be said that there was insufficient evidence to support the Magistrate's findings.
40. Turning to the third incident, the Magistrate found that the distress of Miss Campbell was exacerbated by her belief that the appellant had been in her flat without her knowledge to gain these photographs; something which was denied by the appellant. The Magistrate expressly made no findings about that but went on to say this:-
41. As the Magistrate said, ordinarily the returning of photographs to a person would be an innocuous and probably kind act, but:-
42. Mr Harrison submitted that the facts did not support the conclusion that the appellant's conduct:-
(i) Was calculated, in an objective sense, to cause alarm or distress;
(ii) Was objectively judged to be oppressive and unacceptable (which may depend on the social context in which the conduct took place); and
(iii) Crossed the line between unattractive or unreasonable conduct and conduct which might torment the victim or sustain criminal liability.
43. It was clear, he said, from both the handwriting and the contents of the message that the card was from the appellant (as acknowledged by Miss Campbell in her evidence) and the absence of a signature was insufficient evidence upon which to conclude that the card was menacing.
44. The message to the effect that the appellant was keeping back some photographs "for the future if she stays over" (our emphasis) was insufficient evidence, he said, to conclude that there was a degree of "power play" in the message or that the appellant was pre-empting the Court's decision about the child being allowed to stay with him.
45. It seems correct to say, from the evidence of both Miss Campbell and the appellant, that it had been made clear in the Family Proceedings that Miss Campbell did not want the appellant to communicate directly with her, but there was no order or undertaking to that effect and the "allegation of harassment form" did not (and could not) prohibit any communication at all. The appellant could have sent the photographs either via the lawyers or to JFCAS, but there was manifestly no attempt to conceal who the card was from and we find it difficult to see how the lack of a signature, whilst perhaps unfriendly, can really be described as menacing. Furthermore, the use of the word "if" indicates to us that the appellant was not pre-empting the decision of the Family Courts.
46. The Magistrate made it clear that this incident, taken on its own, would not have constituted an act of harassment but in her view did so when considered in the context of the first and second incidents-the Facebook posts. For our part we had considerable reservations from our reading of the transcripts as to the very extensive conclusions she drew from this incident even in the context of the Facebook posts.
47. Notwithstanding our reservations, it is necessary to stand back and look at the appellant's conduct on all three occasions to see whether it constituted a course of conduct amounting to harassment; as part of a campaign of harassment. It is the course of conduct that has to amount to harassment, not the individual occasions which form part of that course of conduct. Quoting from Archbold 2013 Edition at paragraph 19-355:-
48. The English Act, on which our law is based, was passed for the purpose of dealing with the phenomenon of "stalking" but it is clear that it may be used to prosecute a range of persons apart from those commonly referred to as "stalkers".
49. Whilst this Court, working from the transcripts, may have reached different findings to those of the Magistrate, the fact of the matter is that she heard the evidence, not this Court. There was no dispute as to what happened in each of the three incidents. The issue was the appellant's intent and there clearly was evidence (in essence his testimony) upon which she could properly have come to the conclusion that there was a course of conduct comprising the three incidents which was targeted by the appellant at Miss Campbell and which was calculated by him, in an objective sense, to cause alarm and distress.
50. The key issue for us is the Magistrate's finding that the appellant's course of conduct over these three incidents was of sufficient gravity to cross the line that sustains criminal liability, so as to constitute the crime of harassment. Can his course of conduct be properly described as "torment by subjecting to constant interference or intimidation"?
51. Each case will depend on its own facts and context, but looking at the facts in some of the reported cases where criminal liability was sustained, we note that Lau-v-The Director of Public Prosecutions [2000] 1 FLR 799 involved an assault or threats of an assault. R-v-C (Sean Peter) [2001] WL 535720 involved the sending of letters by a constituent to a Member of Parliament containing a measure of abuse and material capable of being construed as threats of violence or death. Kellett-v-The Director of Public Prosecutions [2001] WL 172031 involved calls by a neighbour to the employer of a public officer alleging fraud, an extortionate salary and that she was not working for her employers when she should have been. Pratt-v-The Director of Public of Prosecutions [2001] WL 753479 involved assaults by an estranged husband on his wife whilst they were living under the same roof and in breach of undertakings given. Here in Petriella-v-the Attorney General [2013] JRC 163, the defendant had sent text messages to a social worker working for the Children's Service which were manifestly threatening and intimidating. By contrast Dowson involved conduct on the part of a senior police officer that was insensitive, belittling and overbearing and likely to undermine Dowson's self-confidence and esteem, but which failed by a considerable margin to sustain criminal responsibility.
52. On examining the facts of this case as found by the Magistrate, we are left with a real sense of unease as to the appellant's conviction. The message he placed on his own Facebook page was admittedly unacceptable, but we were otherwise concerned with the placing of a sarcastic message on the "Feathers Healing" Facebook page and the returning of photographs to Miss Campbell with a card. As a course of conduct it was, in its context and certainly in part, unattractive and unreasonable, but in our judgement it was not of such gravity as to justify the sanction of the criminal law. Taking into account the wide discretion given to the Royal Court on an appeal from the Magistrate's Court, we feel it right to intervene and set aside the conviction and the restraining and costs orders made pursuant to it.