No: 200903207 B4 
Neutral Citation Number: [2009] EWCA Crim 2616

IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 20 November 2009
 
B e f o r e:

LORD JUSTICE LEVESON 

MR JUSTICE PENRY‑DAVEY 
 
RECORDER OF NORWICH
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

FATIH SAHIN

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Miss J Deuchar appeared on behalf of the Appellant
Miss S Booker appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE LEVESON:  On 18 May 2009, this appellant stood trial in the Crown Court at Snaresbrook charged with putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997 ("the 1997 Act"), and intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994.
2.	On 21 May 2009 in relation to the first count, he was convicted of the lesser offence of harassment contrary to section 2(1) of the 1997 Act.  He was also convicted of intimidation.  HHJ Beech subsequently passed sentences of four months' imprisonment in relation to harassment, and 12 months' imprisonment consecutive in relation to intimidation, making 16 months' imprisonment in all.  She also made a restraining order pursuant to section 5 of the 1997 Act.  The appellant now appeals against conviction by leave of the single judge.
3.	The prosecution case can be summarised quite shortly.  The complainant in both allegations was the appellant's separated wife.  They had married in 2002, but separated in August 2007, after which the relationship was acrimonious, with contact difficult and strained.  In relation to the first allegation, Derya Sahin, the appellant's wife, complained that between 20 January 2008 and the 11 February 2008, a period of some 22 days, the appellant pursued a course of conduct which caused her to fear that violence would be used against her.  
4.	She described these incidents in this way.  She alleged that on 20 January 2008 she and her children were at her mother's third floor flat when the appellant arrived and started kicking at the door.  He was shouting that he wanted to speak to her face to face.  He was also shouting, "I will see you some day outside", which she took to be a threat.  She was scared because his behaviour was aggressive.  A few hours later, she returned to her own home with her mother and called the police.  She complained that day, and the next day attended court and obtained a non‑molestation order prohibiting the appellant from using or threatening violence, pestering or harassing her.  It also prohibited him from entering or attempting to enter the former matrimonial home.  The order was served on the appellant the following day.  The solicitor who explained the document was of the view that he understood its contents.  
5.	The appellant denied that the incident had taken place, saying that he was in the mosque at the time.  He was told about the court order, but said that all he understood was that he was not permitted to leave the country or see his children.  
6.	The second alleged incident was on 5 February, when the appellant attend the former matrimonial home and was said to be verbally abusive to the complainant.  She stated that he banged on her window and kicked her door, saying that he wanted to talk to her.  She feared that he wanted to do something and so did not open the door.  She called the police, but by the time of their arrival ten minutes later he had gone.  In relation to this incident also, the appellant simply denied that it had taken place, saying that he had been at the mosque on that day as well.  He suggested that the allegation had been fabricated.
7.	Five days later, on 10 February, the complainant met a mutual friend to help him complete some forms.  She offered the friend a lift to the underground, but as she was getting herself and her children into the car, with the friend by the passenger door, she alleged the appellant approached the friend, grabbed him by the shoulder, and head‑butted and punched him.  She got herself and the children into the car and locked the door.  She and the friend reported the matter to the police.  As will appear, a critical question may be whether that report by telephone was in the presence of the appellant.  As to this allegation, again the appellant denied that it had taken place, saying he was at the mosque.  
8.	Finally, on the day following (11 February), the complainant alleged that she received a number of text messages from the appellant demanding that the family proceedings and non‑molestation order be dropped, threatening to get social services to remove the children, and saying that if she dropped the case he would leave her alone.  She thought all the texts were sent from his phone, but could not recall showing them to anyone.  They had not been in English and were neither downloaded or translated.  The appellant denied any contact, whether by text or phone calls, and denied threatening the complainant with social services.  He had given his mobile to the police, who could have interrogated it.  The officer said that he had not arranged for the messages of that day to be translated.  
9.	There were details which surrounded these incidents which, given the grounds of appeal, it is unnecessary to rehearse in this judgment.  Neither is it necessary to recount the evidence proffered by the appellant as to the reasons for the complainant's hostility or the evidence of the Imam of the appellant's mosque, who spoke of his presence, particularly on 10 February, when he said that the appellant was at the mosque all day until he saw him getting into the complainant's car and driving off with her.  
10.	As to the allegation of intimidation, the complainant said that on 19 March, she left work early and was approaching her car, talking to her mother on her mobile phone, when the appellant approached her from behind, grabbing her bag, phone and keys.  He then grabbed her round the front of her neck, and said, "If you don't want anything to happen to your grandma, just drop the case".  He was strong and had a knife in his hand.  She was scared and screamed.  Her mother phoned one of her work colleagues, presumably a friend, who was coming out of work, where upon the appellant ran away.  The police were called and she later made a statement at the police station.  The appellant also attended the police station.  He alleged that she had managed to get into her car and deliberately driven at him, catching his leg and damaging his watch.  She denied this.
11.	We add only that in August 2008, the complainant made a statement withdrawing her evidence in the case.  She explained this was on the basis that she wanted to get on with her life and wanted the appellant to leave her alone.  He had promised to return to Turkey.
12.	As is clear from this summary, the case was a classic issue of fact for the jury to resolve.  Who did they believe?  More particularly in relation to count 1, were they sure that the appellant pursued a course of conduct which put his wife in fear of violence by harassment; or alternatively pursued a course of conduct which constituted harassment, and, in relation to count 2, were they sure of the allegation of intimidation.
13.	With proper directions, the case could have been brought to a conclusion without difficulty.  In the event, the appellant proceeds on the basis that the jury were misdirected in relation to the harassment charge, and that the necessary ingredients for the intimidation charge were not established, and furthermore could not be established.  It is to these arguments of law that we now turn.  
14.	We deal first with the count of harassment which was put in the alternative.  The jury were directed in the following terms: 
"The particulars of the offence are that the defendant did between 19 January 2008 and 20 March 2008, cause Derya Sahin to fear that violence would be used against her by his course of conduct which he knew or ought to have known would cause fear of violence to her on each occasion.  
Breaking that down into the ingredients of which you will have to be satisfied before you could convict the defendant, you will have to be satisfied that, firstly, the defendant did pursue a course of conduct which caused Mrs Sahin to fear that violence would be caused against her.  
Course of conduct means that the defendant must have conducted himself in such a way as to cause Mrs Sahin to fear that violence would be used against her on at least two occasions, so you have to have two occasions for there to be a course of conduct.
Secondly, you would have to be satisfied that he must have known or ought to have known that his course of conduct would cause her to fear that violence would be used against her on those occasions.  Those are the ingredients of that first count.  
If you are not satisfied that the Crown has proved so that you are sure the defendant has committed the offence of putting Mrs Sahin in fear of violence, it would nevertheless be open to you to consider an alternative and lesser offence of harassment.  
It is an offence under section 2 of the same Act, the Protection from Harassment Act 1997, to pursue a course of conduct which amounts to harassment of another.  
So what are the ingredients about which you must be sure before you could convict of this alternative offence?  Firstly, again, you would have to be satisfied that the defendant pursued a course of conduct; that is that he pursued a course of conduct on at least two occasions which amounted to harassment.  Harassment should be given its normal meaning, but it includes causing alarm or distress to the victim.  
Secondly, you would have to be satisfied that at the time that he undertook that course of conduct he did so when he knew or ought to have known that it amounted to harassment of another; that is that it was going to cause alarm and distress to the victim." 
15.	The judge then went on to speak of the four incidents in this way: 
"So the prosecution relies upon four incidents in relation to count 1 which the prosecution say taken all together amount to a course of conduct although, as I have said, you only need to be satisfied that at least two incidents occurred and that each incident caused Mr Sahin to fear that violence would be used against her and of course that he knew or ought to have known that his conduct would have caused her to fear that violence would be used." 
16.	Miss Deuchar, who appears for the appellant in this court as she did at the trial, argues that this direction was deficient in that the jury were not directed that the fewer the incidents proven, the less likely it was that they could be described as course of conduct, and that they were not told that if they did not find that the alleged incidents were proven, then greater consideration should be given to whether the remaining two or three incidents, whilst capable in law of amounting to a course of conduct, in fact did so.  She argues that as the jury acquitted the appellant of the more serious charge, the jury must have found failings in the aspects of the evidence of the complainant.  In that regard, she relies on Ninin Patel [2004] EWCA Crim 3284 which she argues is on all fours with this case, and in which an identical conviction was quashed for lack of sufficient direction.  
17.	The starting point is Lau v DPP [2001] 1 FLR 799, which concerned the situation in which magistrates accepted only two of five alleged incidents occurring in November 1998 and March 1999.  Schiemann LJ, giving the lead judgment in the Divisional Court, said at page 801: 
"I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, 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. One can conceive of circumstances where incidents, as far apart as a year, could constitute a course of conduct and harassment. In argument Mr Laddie put the context of racial harassment taking place outside a synagogue on a religious holiday, such as the day of atonement, and being repeated each year as the day of atonement came round. Another example might be a threat to do something once a year on a person's birthday. Nonetheless the broad position must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct." 
18.	This was followed by Pratt v DPP [2001] EWHC Admin 483 in which again two incidents only were found proved separated by three months.  Latham LJ referred to Lau and went on at paragraph 10:  
"In my view these propositions accurately set out the law and the cautious approach that any court should adopt where the allegation of harassment is based upon either two incidents or any other series of incidents, if few in number and widely spaced in time. The issue for the court is whether or not the incidents, however many they may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct." 
19.	Ninin Patel also concerned an allegation of putting in fear of violence by harassment contrary to section 4(1) of the 1997 Act, with an alternative of harassment contrary to section 2(1).  The case was based on a number of incidents, eight in number, between October 2002 and July 2003.  All but one of these incidents alleged actual violence, but the significant feature of the case is that the jury acquitted of putting in fear of violence and convicted only of harassment.  This gave rise to an appeal based on inconsistent verdicts which this court rejected, accepting the construction that the jury may have had doubts about the complainant's evidence, but were willing to accept it where there was some independent support which reduced the incidents to two in number on 2 June (leading to a visit to a doctor) and 22 July (which did not involve violence).  Maurice Kay LJ then dealt with the direction (in similar terms to the direction in this case) and said: 
"If the jury found themselves considering conviction by reference to a much reduced number of incidents –– and we consider that that must have been the case –– then the assistance which they had received by way of the summing–up was, in our judgment, deficient.  In essence that assistance came to little more than a direction that there must be at least two or more incidents.  Adopting the approach of the Divisional Court, we conclude that if there is any possibility (seen prospectively or retrospectively) that the jury has convicted on the sort of basis to which we have referred, then assistance of the kind prescribed by the Divisional Court is in our judgment essential.  It is not just a matter of counting the incidents and saying, "We have two, that is enough."  It is necessary for the jury to be given some guidance so that they address the question of whether the incidents give rise to a nexus sufficient for there to be a "course of conduct"."  
20.	As a general proposition we endorse the observation in each of the cases to which we refer that the better practice in every direction to a jury would be to consider whether the incidents about which they are sure are so connected in type and in context to justify the conclusion that they can amount to a course of conduct.  To that extent we accept that there was a failure fully to direct the jury, although we note that counsel were not sufficiently concerned about the direction to bring it to the attention of the learned judge at the conclusion of the summing up. 
21.	That is not, however, an end of the matter, because every case must be judged on its own facts, and the safety of the conviction must be considered as a free‑standing question in light of the way in which the jury were directed.  Thus, in this case, the circumstances requiring caution for which Latham LJ spoke in Pratt ‑‑ few incidents in number and widely spaced in time ‑‑ do not apply.  True, there were four incidents, the first being said to have led to a non‑molestation injunction, but all four incidents were only over a three‑week period, and three of them within six days.  Secondly, although the jury in this case also acquitted of the graver offence, there was only one allegation of actual violence, aimed not at the complainant but at the family friend.  All other incidents consisted of verbal abuse or threats.  It was fully open to the jury to doubt that it was the appellant's intention to cause her to fear that violence would be used against her on those occasions, whether or not she was put in such fear.  Thirdly, in the context of this case, all depended on the evidence of the complainant alone along with contemporaneous reporting to the police.  Suffice to say that we do not find that, in the context of this case, the failure to provide the additional direction on the meaning of course of conduct renders this conviction unsafe.
22.	The second pursued ground of appeal concerns count 2 of the indictment, which alleged intimidation contrary to section 51(1) of the 1994 Act, the particulars alleged being as follows:  
"FATIH SAHIN on the 19th day of March 2008 knowing or believing that Derya Sahin was a witness in proceedings for an offence, did an act, namely assaulted and threatened to kill, which intimidated, and was intended to intimidate Derya Sahin, intending thereby to cause the course of justice to be obstructed, perverted or interfered with."  
23.	The indictment does not identify the particular offence in respect of which she was a witness, although in her summing up the learned judge focused the attention of the jury on breach of the non‑molestation order, which of course can only arise from one of the incidents following the grant of that order.  So what must the Crown prove to bring this offence home and, in particular, what must be the state of any criminal proceedings and the knowledge of the defendant?  The starting point is the statute itself.  Section 51 of the 1994 Act provides: 
"(1) A person commits an offence if—
 (a) he does an act which intimidates, and is intended to intimidate, another person (“the victim”); 
 (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and 
 (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.
... 
 (5) The intention required by subsection (1)(c) ... need not be the only or the predominating intention or motive with which the act is done ...
... 
 (7) If, in proceedings against a person for an offence under subsection (1) above, it is proved that he did an act falling within paragraph (a) with the knowledge or belief required by paragraph (b), he shall be presumed, unless the contrary is proved, to have done the act with the intention required by paragraph (c) of that subsection."
24.	It might be thought to be ambiguous whether a defendant needs to have knowledge or belief in the role of a person, or knowledge/belief in the role of the person and the existence of the investigation.  In Singh [1999] Crim LR 681, that ambiguity was resolved in favour of the clear view that the Crown must prove both that an investigation is under way, and that the defendant knew or believed that there was such an investigation in addition to proving intimidation.  It is only then that the presumption bites.  Neither is it clear that it is sufficient simply that there should have been a report to the police.  The jury must be sure that there was an investigation under way.  
25.	How did the learned judge leave this aspect of the case to the jury?  She directed them in these terms: 
"A person commits this offence if, firstly, he does an act which intimidates and is intended to intimidate another person, in this case Mrs Sahin; secondly, he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness; and, thirdly, he does the act intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.  
Breaking that down into the various elements of the charge, you would have to be sure of the following before the offence is proved; first of all, that on 19 March the defendant must have known that Mrs Sahin was a witness or potential witness in proceedings in relation to an offence that was to be charged against him by the police.  
In that context you know, of course, if you are satisfied about all the matters or some of the matters set out in count 1, that there must have been ‑‑ if you are satisfied of those ‑‑ a breach of the non‑molestation order taken out on 21 January.  You will see from Exhibit 1, I think, that the non‑molestation order clearly states that if it is breached it is a criminal offence. 
So that is the first ingredient.  He must know that Mrs Sahin was a witness or potential witness in proceedings in relation to an offence that was to be charged against him by the police.  
Secondly, he must have done an act that intimidates and was intended to intimidate Mrs Sahin ... 
Thirdly, that when he did the act of intimidation he did it intending to cause the investigation or the course of justice to be obstructed, perverted or interfered with ... 
If you are satisfied that, firstly, the defendant did approach Mrs Sahin in the way that she described on 19 March and assaulted her and threatened her and, secondly, you were also satisfied that when he did so he intended to and did intimidate her, then it is to be presumed that such acts were done with the intention to obstruct, pervert or interfere with the course of justice." 
26.	The learned judge then went on to deal with the evidence in support of that charge.  What is startling by its omission is any assistance in relation to the offence which the police commenced to investigate.  As we have said, reference to the non‑molestation order suggests this has to be a breach of that order, but there is no evidence, and certainly none that the learned judge referred to the jury, that the police had commenced any investigation into breach of that order before the complaint that followed this incident on 19 March.  The only evidence that the police were involved came from the complainant, who reported that she telephoned the police after each of the incidents.  But it is not suggested there was evidence that investigation had in fact commenced.  In fact, it is not even thought that such an investigation was under way.  
27.	Trying her best, Miss Booker referred back to the first incident which had been the subject of a statement, and argued that the requirement of an investigation could be linked to that incident.  The difficulty with that proposition, however, is, first, that there is no real evidence the appellant was even remotely aware that this first incident had been the subject of a complaint to the police which they were then investigating.  The nearest that one can get to what is said to have been evidence of investigation of which the appellant was aware is the evidence of the complaint in relation to the incident of 10 February, to the effect that the appellant was present and the police were called.  I say "to what is said to have been evidence" because there is not the slightest mention of it in the learned judge's summing up.  Neither, as we understand it, was there evidence that this phone call led to the commencement of investigation, or any focus by the learned judge on the need for such an investigation to have commenced.  
28.	Miss Booker points to the evidence that the appellant's threats included the words, "If you don't want anything to happen to your grandma, just drop the case".  But, with great respect to her, it seems to be much more likely that the appellant was there referring to the civil proceedings which had previously been commenced, and of which he most certainly was aware.  That would be consistent with what he had said on 11 February, when he had demanded the non‑molestation proceedings be dropped, threatening to get social services to take the children.
29.	Finally, and in any event, the learned judge simply did not address this very difficult issue or assist the jury in relation to precisely what had to be proved in this regard, or indeed the facts on which they could rely in order to be sure of this aspect of this necessary ingredient of the offence.
30.	Miss Booker recognised the difficulties in the way in which this count was left to the jury, and in the alternative suggested the court could use section 3 of the Criminal Law Act 1967 ("the 1967 Act") to substitute a conviction under section 39 of the Criminal Justice and Police Act 2001 ("the 2001 Act"), which establishes a similar offence to that contained in section 51 of the 1994 Act, but directed to civil proceedings as opposed to criminal proceedings.  Certainly the problems facing the Crown fade away if reliance can be placed on this legislation, because there was not the slightest doubt that the appellant was well aware that civil proceedings had been commenced and had led to a non‑molestation order.  Given the facts found by the jury, it is, we venture to conclude, inevitable that a conviction for that offence would have resulted.  
31.	The difficulty, however, is in the language of section 3 of the 1967 Act, which permits a substitution only of an offence in respect of which the jury could on the indictment have found the defendant guilty.  Put briefly, the jury could never have convicted the appellant of an offence under section 39 of the 2001 Act when dealing with a count on an indictment alleging breach of section 51 of the 1994 Act.  The former deals only with non‑criminal proceedings and the latter only with criminal proceedings.  Section 3 is not open to assist the Crown in this case.  
32.	It follows that the conviction for intimidation must be quashed.  Given the conduct by the jury to have been proved to the criminal standard, we do not view this result with pleasure, but the case must be taken as a salutary reminder to prosecutors that care must be taken to frame indictments as precisely as possible, with a very close eye to the particular ingredients of the offence charged.  It is also a salutary reminder to judges: had an amendment to this indictment been sought, even at a late stage, to charge a breach of section 39 of the 2001 Act, we cannot imagine this appellant, or indeed any defendant, would have been caused the slightest prejudice. 
33.	In the event, the appeal against conviction for harassment is dismissed.  The appeal against conviction for intimidation is allowed.  For the avoidance of all doubt, the sentence of 12 months' imprisonment falls away, but the restraining order made pursuant to section 5 of the 1997 Act remains.