Conviction quashed – Court of Appeal guidance on the meaning of harassment in the s42A Family Law Act offence of molestation

In its reserved judgment in R v O’Neill [2016] EWCA Crim 92 the Court of Appeal (in the judgment of Lord Justice Gross) delivers guidance as to the correct judicial direction and the ingredient of “oppression” in an allegation that conduct is harassing required to render the conduct criminal.

The appeal against conviction for an offence of breach of a non-molestation order contrary to section 42A of the Family Law Act 1996 is successful.

Despite the fact that the Crown had been required by the trial judge’s directions to prove the absence of a reasonable excuse for the conduct [correctly it is submitted: Richards [2010] EWCA Crim 835 per Thomas LJ, as he then was], the Court accepted Philip Rule’s argument that this did not equate to the same thing as having to prove conduct was oppressive and thus criminal in the first place. Indeed, if deciding in the first place an act did amount to harassment prohibited by a non-molestation order issued by the family courts, it might be difficult to conceive of many reasonable excuses for harassing. However the starting-point ought to be that the tribunal (here a jury) considered whether or not the conduct was oppressive, such that it would then (and only then) call for a reasonable excuse. The Court ultimately accepts that the conviction cannot be regarded as safe in this case.

Guidance for direction to a jury in future (and this might also properly apply to proceedings taken in the family courts) is (at paragraph 39):

Pulling the threads together:

i)    We respectfully agree with and adopt the opening lines of this passage from Blackstone as providing a  concise, working understanding of “harassment”; thus, to repeat:

“The definition provided by s.7 is clearly inclusive and not exhaustive… ‘Harassment’ is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to produce the consequences described in s.7. By s.1(3) of the Act… reasonable and/or lawful courses of conduct may be excluded.”

ii)    Harassment, within the meaning of the Order, cannot simply be equated with “causing alarm or distress”.

iii)    The danger of doing so is that not all conduct, even if unattractive, unreasonable and causing alarm or distress, will be of an order justifying the sanction of the criminal law.

iv)    Here, the Judge’s direction ought to have included a reference to the jury needing to be sure that the conduct was oppressive, not merely causing alarm or distress.

v)    Some such further wording, dealing with the element or ingredient of oppressive conduct, would have served to focus the jury’s mind on the distinction between criminal conduct and conduct (however unpleasant) falling short of attracting criminal liability.

vi)    Accordingly, there was a misdirection in this case as to the meaning of the word “harass” in the Order.

Philip Rule was instructed privately for the appeal, and led Ramya Nagesh who also did not appear below.