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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Smith v R. [2012] EWCA Crim 2566 (29 November 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/2566.html Cite as: [2012] EWCA Crim 2566, 177 JP 183, [2012] WLR(D) 362, [2013] 2 Cr App R (S) 28, (2013) 177 JP 183, [2013] 1 WLR 1399, [2013] 2 All ER 804, [2013] Crim LR 250, [2013] MHLR 201 |
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ON APPEAL FROM
ISLEWORTH CROWN COURT
HHJ McGregor-Johnson
T20111416
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE LANGSTAFF
and
HIS HONOUR JUDGE MORRIS QC (SITTING AS A JUDGE
OF THE COURT OF APPEAL CRIMINAL DIVISON)
____________________
MARK JOHN SMITH |
Appellant |
|
- and - |
||
REGINA |
Respondent |
____________________
Mr Francis Burak (instructed by the CPS) for the Respondent
Hearing date: 7 November 2012
____________________
Crown Copyright ©
Lord Justice Toulson:
Introduction
Facts
"My concern is that your behaviour on this occasion, no doubt due to the psychosis, was pretty extreme and in any aircraft that would be extremely concerning for anybody around, and I want to make sure that should there be another episode of this, and one very much hopes there won't be, that it's not going to occur in these sort of circumstances. What I am going to do in those circumstances I consider it is necessary to make a restraining order not to travel on any domestic or international commercial airline. I am not going to make it without limit of time because that would be entirely disproportionate in my view. I am going to make it for what I consider to be a sufficient length of time to be satisfied that these problems are not going to recur. I am going to make it for a period of 3 years."
Protection from Harassment Act 1997
"(1) A person must not pursue a course of conduct -
(a) which amounts toharassment
of another, and
(b) which he knows or ought to know amounts toharassment
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 or involvesharassment
of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved
harassment
of the other."
"(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve -
(a) In the case of conduct in relation to a single person (see section 1(1)) conduct on at least two occasions in relation to that person."
"Stalkers do not stick to activities on a list. Stalkers and other weirdos who pursue women, cause racialharassment
and annoy their neighbours have a wide range of activity which it is impossible to define."
"Clause 1 is widely drafted and, for example, the activities of political activists, market researchers, telephone sales companies, evangelical religious organisations and journalists as well as activities such as begging, racial or sexualharassment
,
harassment
by neighbours or
harassment
in the workplace could be covered by the Bill…The courts will look at each case individually on its merits and in time case law may offer more guidance on the type of conduct and the particular circumstances which might be covered by clause 1."
"(1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence…may…make an order under this section.
(2) The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order,from
conduct which
(a) amounts toharassment
, or
(b) will cause a fear of violence,
prohibit the defendantfrom
doing anything described in the order.
(3) The order may have effect for a specified period or until further order.
(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).
(5) If without reasonable excuse the defendant does anything which he is prohibitedfrom
doing by an order under this section, he is guilty of an offence.
(6) A person guilty of an offence under this section is liable –
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both, or
(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both.
(7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order."
"(1) A court before which a person ("the defendant") is acquitted of an offence may, if it considers it necessary to do so to protect a personfrom harassment
by the defendant, make an order prohibiting the defendant
from
doing anything described in the order.
(2) Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one.
…
(5) A person made subject to an order under this section has the same right of appeal against the order as if -
(a) he had been convicted of the offence in question before the court which made the order, and
(b) the order had been made under section 5."
Discussion
"52. TheProtection from Harassment Act 1997
was designed as legislation to tackle the problem of stalking. In practice it has been used mainly for domestic violence and inter-neighbour disputes."
"56. The government therefore proposes to:
…
Make restraining orders available to criminal courts when there is insufficient evidence to convict but the court considers that it is necessary to make a restraining order to protect the victim."