Neutral Citation Number:
[2016] EWCA Crim 1543
Case No:
201600728 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 22nd September 2016
B e f o r e
:
LORD JUSTICE DAVIS
MRS JUSTICE CARR DBE
MRS JUSTICE PATTERSON DBE
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R E G I N A
v
ROBERT QOSJA
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Computer-Aided Transcript of the Stenograph notes of
WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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Miss A Scott
appeared on behalf of the
Applicant
Mr G Carse
appeared on behalf of the
Crown
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J U D G M E N T (Approved)
1.
MRS JUSTICE CARR
:
2.
Introduction
3.
On 8th January 2016 the appellant, who is now aged 27 years, was convicted of and then sentenced for the following offences: count 1, stalking involving fear of violence contrary to
section 4A(1)
((b)(i) of the Protection from Harassment Act 1977, three years' imprisonment; count 2, assault by beating contrary to
section 39 of the Criminal Justice Act 1988
, three months' imprisonment, such sentence to run concurrently. Thus, the total sentence was one of two years' imprisonment.
4.
This is his appeal against his conviction on count 1, brought with the leave of the single judge.
The facts
5.
The facts are as follows. KL, the complainant, started work as a barmaid at the [a name] public house in Nunhead on 10th July 2015. At the time she lived in [an address], New Cross, in a shared three bedroom house. Her room was on the second floor. The appellant was a regular customer at this particular pub.
6.
The prosecution case was that the appellant had stalked the complainant between 28th July and 2nd August 2015. He telephoned and sent her over-familiar text messages. On 1st August 2015 he gained unauthorised entry into her house and entered her bedroom while she slept. She woke to find him sitting on her bed. He was drunk and angry, and indeed went on to slap her face twice. Later that day in the afternoon he returned to her room, again uninvited, to return keys which he had taken to the house without authorisation.
7.
The prosecution sought to prove its case by relying on evidence from the complainant and from her house mate, together with cell site and fingerprint evidence. The defence case was one of denial and alibi. The appellant contended that he was not present at the complainant's home on either of the alleged incidents on 1st August 2015; those allegations were simply false.
8.
The issue for the jury on count 1 was whether or not they were sure that between 28th July and 2nd August 2015 the appellant's conduct towards the complainant amounted to stalking. In particular, could the jury be sure that on at least two occasions between those dates the appellant had caused the complainant to fear that he, the appellant, would use violence against her and that on at least two occasions he knew, or ought as a reasonable person to have known, that his course of conduct would cause her to fear that violence would be used against her. With respect to the second count, the question was whether or not he had been there at all, and if so whether or not he had slapped the complainant.
9.
It is necessary, given the issues arising on this appeal, to set out, albeit briefly, the evidence given by the complainant. She stated that she had started work at the pub on 10th July, where the applicant had been a regular customer, and he had been friendly and polite. She was not romantically interested in him and had reluctantly only given him her telephone number when asked. When she lost her telephone she accepted his offer to use his sister's mobile telephone. She went on to give evidence as to how matters developed in the days leading up to the events of 1st August.
10.
In summary, on the Monday, 27th July, she had left the pub just after her shift had ended. She was walking along the street when the appellant drove alongside her and offered her a lift home. She agreed and they had chatted. He told her that he knew where she lived because he had followed her there on a previous occasion. Before they got to the complainant's address the appellant said that he could find her better paid work by babysitting or a cleaning job at a friend's house. He drove her to the friend's house to discuss the job with the family, but that family was not in and he returned her to her home. Again, on the way they talked about the job and how much she could earn. She told him that she had just left an unhappy relationship and became slightly tearful. When they got back to her house the appellant asked if he could use the toilet and, with some hesitation, she allowed him in. He stayed for a cup of tea for about half an hour, during which time asked the complainant to come and live with him at his house rent-free.
11.
On 28th July, now the Tuesday, the complainant did not go into work as she felt unwell. Later in the same day, however, she received text messages and missed calls from the appellant. She accepted that she allowed the appellant to visit her that day and he brought her soup and stayed with her for between one and two hours. Her evidence was that she had not expected him to stay so long. They spoke about the family in Peckham that she might work for and the proposed new job. When the appellant left, he asked her to come with him to the front door, and as he was leaving he gave her a hug. She agreed that she had hugged him back, but then he had tried to kiss her on the lips, which she did not like and to which she had not agreed. She stepped back, making it clear that she did not want to be kissed. She said goodbye and the appellant left. At about ten in the evening the appellant phoned her to say he was outside and wanted to come in. She refused, it was too late, and her evidence was that she felt uncomfortable about it.
12.
The next day, on Wednesday, the complainant was back at work. The appellant sent her a text to the effect of, "Hi baby girl; how's your day?". Her evidence was that she did not like the tone of that text and ignored it.
13.
On the next day, the Thursday, she received two missed calls from the appellant. On the evening of Friday, now 31st July, she was at work when the appellant came to the pub. He appeared to be angry and rude, and when he bought a drink he threw the money towards her, complaining that the change that she had given him was wet. The argument which ensued was sufficient for the complainant's manageress to intervene. It was at that stage that the complainant gave the appellant back his sister's phone, saying that she did not need it any more. Her evidence was that he was angry, went to the door of the pub and threw the phone outside in an angry fashion. He shouted at her. The argument was such that another customer was caused to ask what was going on. Her evidence was that she was shocked at the appellant's reaction.
14.
After this incident the appellant had wanted to speak to her alone and asked her why she had turned down the job offer. She tried to explain that she liked the bar job better and did not want to be beholden to the appellant; she did not want him to get her a job, she wanted her independence. The appellant had been drinking, she said, and he had bought some beer to take away with him from the pub. When the pub closed the staff had a private party, continuing until about 3 o'clock in the morning, at the end of which the complainant's manageress gave her a lift home. She got home, she went upstairs and she fell asleep, now the early hours of the morning of 1st August.
15.
At around 5 or 5.30am she woke to find the appellant sitting on the foot of her bed. She thought that he seemed drunk. She asked him what he was doing there and how he had got in. She said that she was panicked, shocked and very scared. He said that he had failed to get in using an oyster card and had in fact managed to get in through the kitchen window. Her evidence was that he moved her clothes which were on the chair onto the floor, lit a cigarette and started talking. He was complaining that she had been rude to him. He was angry about various matters: her refusal of the job offer and the return of his sister's telephone in the pub in a public place with other people around, in circumstances which he thought were embarrassing. He asked her why she had not replied to his texts. She said that she was confused and fearful that he was going to beat or sexually assault her. She said that the appellant offered her his telephone and challenged her to call the police. She said that she was too scared to use his telephone. Then he tried to hug her, and when she resisted he became angry and slapped her twice on the face. She said that she was very frightened. When questioned, she answered this:
"Q: The slaps themselves, did they cause you any injury?
A: No, it wasn't strong, I didn't feel any pain but it was just scared me a lot because he touch me. He was touching me and it was more dangerous in this situation."
16.
At around 6am the complainant's housemate returned home from a night out. The complainant swiftly went down to his room on the ground floor and seconds later heard the appellant leave the house.
17.
18.
Later that afternoon, at around 2pm she thought, although it appears that it was probably somewhat later, the appellant returned to the complainant’s house. The complainant had not slept since the appellant had left earlier in the morning. The appellant had taken her keys and wanted to give them back. This scared her. She was confused as to why he would have her keys in the first place and was frightened at the thought that it was possible that he, or someone he knew, might come back at any time to her room. She denied in cross-examination that she had given him the keys on any earlier occasion.
19.
In re-examination she was asked in some detail as to how she felt upon the appellant's return that second occasion on 1st August:
"A. When he came to bring my keys back ... my emotion I was scared.
Q. What were you scared of?
A. That he --
Q: What did you think in that moment might happen?
A. Yes, I was scared that he came back and he still can get to my house. He came, break in twice so he can do that every time, any time and now my housemates are downstairs but maybe one day if they wasn't they would not be at home and I would be alone and that makes me feel dangerous".
20.
The appellant himself did not give evidence at trial. He had been interviewed under caution and gave no comment responses after providing a prepared statement in which he denied stalking the complainant, denied causing her to fear for her own safety or engaging in any course of conduct amounting to harassment.
Submission of no case to answer
21.
At the conclusion of the complainant's evidence, by agreement between the parties in terms of timing, a submission of no case to answer was made on behalf of the appellant. The submission was made on the basis that it was agreed that an offence under
section 4A(1)(b)
(i) of the
Protection from Harassment Act 1997
required the victim to be caused fear on at least two occasions that violence would be used against them. In the instant case, even if, assuming the complainant was telling the truth about the incident on 1st August, she had not given evidence that she was caused fear of violence on more than one occasion. That application was opposed on the basis that the victim had given evidence of being put in fear of violence on at least two occasions and that the interpretation of her evidence of fear of violence could not be divorced from the effect of the appellant's behaviour in the lead-up to the events on 1st August.
22.
The judge gave an overnight indication of his decision that he would reject the submission of no case to answer and in due course provided a short written ruling. In relation to the first accepted incident in the early part of the morning of 1st August, it was accepted there had then been a second incident later that day, and he summarised and referred to the appellant's evidence in this regard. In particular, he recorded the fact that she said that she felt she was in a dangerous situation. The judge ruled that this had been an escalating course of conduct with quite a lot of violent behaviour which would readily, and did, engender fear of further violence in the complainant's mind. The face-slapping was just the start of potential further violence from a man who had entered her bedroom as a trespasser when she was asleep. The return visit with the keys was, a jury could reasonably find, intended to frighten, with an underlying threat of further physical attack if his increasing demands were not met.
Grounds of appeal
23.
On this appeal we have been assisted by succinct and able submissions on both sides, on behalf of the appellant from Miss Scott and on behalf of the respondent from Mr Carse.
24.
On this appeal Miss Scott submits as follows. It is accepted that the complainant gave evidence of fear of violence in the morning visit on 1st August sufficient to fall within the relevant section. It is, however, submitted that the fear of violence on any second occasion was too speculative. In her evidence the complainant expressly stated that she felt no fear of violence on any occasion prior to 1st August, and even on the occasion of the appellant's second visit on the same date, whilst stating that she felt "scared that ... he still can get into my house", and that "one day if [my housemates] would not be at home and I would be alone and that makes me feel dangerous", she did not say that she felt fear of violence during this incident. It is submitted that the relevant provision of the statute is ambiguously drafted and that the judge erred in interpreting the statute in such a broad way as to encompass an unspecified potential future occasion when the appellant might have returned and might have gone on to use violence, especially given those sets of facts, in contrast for example with those set out in cases such as
R v Haque
[2012] 1 Cr App R 5
, where here there were no threats of a return or of violence made on the second visit.
25.
Miss Scott urges on us a narrow approach to the construction of the relevant section : there should be behaviour leading to a fear of violence arising directly from the incident in question. Even if a wider approach were to be taken, Miss Scott submits there has to be fear that violence will occur, and here, on the evidence, the most that could be said was that there was a fear that violence might occur. The existence of an underlying threat, to use the words of the judge below, would be insufficient.
26.
Mr Carse, opposing the appeal, submits that the conviction is safe: the judge was correct in his interpretation of the relevant section; there was sufficient evidence of the complainant being caused to fear violence on at least two occasions; the judge was correct in his analysis of the factual matrix and correctly exercised his discretion in rejecting the submission of no case to answer.
Ruling
27.
It is, as we have recorded, common ground that the early morning trespass into the complainant's house and room on 1st August 2015 amounted to an occasion, if the jury were to believe the complainant, causing her to fear that the appellant would use violence and that the appellant knew, or ought as a reasonable person to have known, that his course of conduct would cause her to fear that violence would be used against her.
28.
The issue on this appeal relates to the afternoon visit later that same day, when the appellant returned saying that he had taken the house keys and wanted to give them back. The judge, as we have recorded, concluded that this second visit was one that a jury could reasonably find satisfied the conditions of the relevant provision.
29.
The question that arises for us as a matter of principle is what degree of immediacy and/or specificity is required in relation to the fear of violence for the purpose of
section 4A(1)(b)
(i) of the
Protection from Harassment Act 1997
for the conditions of the section to be met.
30.
Section 4A(1)(b)
(i) was inserted by
section 101(2) of the Protection of Freedoms Act 2012
. It provides materially :
"(1) A person ('A') whose course of conduct -
(a) amounts to stalking, and
(b) either -
(i) causes another ('B') to fear, on at least two occasions, that violence will be used against B ...
is guilty of an offence if A knows or ought to know that A's course of conduct will cause B so to fear on each of those occasions ..."
31.
The offence of stalking is defined in
section 2A of the Protection from Harassment Act 1997
by reference to
section 1
of the same Act (which prohibits harassment as defined in section 7 of the same Act).
32.
We have considered various authorities which deal with
section 4 of the Protection from Harassment Act 1997
, that is, the offence dealing with putting people in fear of violence. It is, of course, a different offence but contains materially identical wording.
33.
In
R v Henley
[2000] Crim LR 582 confirmation is given that the statute does not in terms specify the need for a fear of immediate violence such as is required for common assault and battery in
section 39 of the Criminal Justice Act 1988
. In
R v DPP
165 JP 349 the court held that it was not the intention of Parliament to legislate for specific circumstances which fell within or without the section. There was a variety of means of making threats of violence to another which could be and were frequently adopted during a course of conduct falling within the
Protection from Harassment Act 1997
. In that case a threat directed to the complainant's dogs was capable of falling within
section 4
. We have noted the commentary of Professor Ormerod in the Criminal Review Case Comment 2001 on this authority. He commented that a narrow interpretation of the section would be that the prosecution must prove that the behaviour caused the victim to fear that violence would result directly from that incident forming part of the harassing course of conduct. He commented that a wider interpretation suggests that it is sufficient that personal violence will occur by some means at some unspecified time in the future. The limiting factor would lie in the requirement that the reasonable man would have to think that the fear would be caused. He commented that in
R v DPP
the court appeared to have favoured the wider interpretation, although it could also be seen as a generous application of the narrow view since the threat to the dog was made in the present of the complainant. Importantly, he noted, on either interpretation the fear of personal violence is a matter of fact.
34.
In our judgment, a plain and natural reading of the wording of
section 4A
(1)(b) (i) of the
Protection from Harassment Act 1997
reveals that the section is wide enough to look to incidents of violence in the future and not only to incidents giving rise to a fear of violence arising directly out of the incident in question. Nor is there any requirement for the fear to be of violence on a particular date or time in the future, or at a particular place or in a particular manner, or for there to be a specific threat of violence. There can be a fear of violence sufficient for the statute where that fear of violence is of violence on a separate and later occasion. The position can be tested simply by reference to the example of somebody saying "I'll come back and get you". On Miss Scott's interpretation that would be insufficient fear to fall within the scope of the section; that is not a position that we consider to be correct.
35.
Whether or not fear of violence is sufficient to satisfy the requirements of
section 4A(1)
(b(i) is a question of fact and degree on the evidence. What is key is that the complainant has to fear on at least two occasions that there
will
(rather than
might
) be violence directed at him or her.
36.
At the end of the day Miss Scott's main point perhaps was that on the evidence here, taken at its highest from the complainant, the necessary ingredients from the statute so identified could not be made out.
37.
In our judgment, however, the complainant's evidence here fully entitled a jury to conclude that there was a second occasion when she feared violence towards her from the appellant, that occasion being in the afternoon of 1st August 2015. That second incident, which of course the appellant denied even occurred, was highly menacing when set in context. It matters not, as we have stated, that he made no specific threats of violence or that the complainant's flatmates came back. Context here was all important. As the judge said, this was an escalating course of conduct over a very short period of time within a week. On the Monday the appellant had been driving the complainant and going into her home. On the Tuesday there had been text messages and missed calls, followed by the unwanted attempt to kiss, followed by being outside her house at night. On the Wednesday there was the text that she did not like. On the Thursday there were two missed calls. On the Friday there was the evening argument, with the appellant's anger boiling over such that he was throwing money and a telephone and shouting. Then of course there was the serious early morning incident with the trespass into the house by entry through a window and actual violence involving the slapping. When the appellant returned in the afternoon the complainant discovered that he had, without her knowledge or consent, taken her house keys. She was understandably scared of future danger to her and violence from him gaining unauthorised entry again in the future.
38.
On these facts and in these circumstances there was, in our judgment, a proper case to be left to the jury to decide whether this was a second occasion when the appellant caused the complainant to fear that violence would be used for the purpose of the section. The jury was entitled to draw proper inferences as it saw fit. This was, in our judgment, classic jury territory following a summing-up which has not been criticised.
39.
For all these reasons, we would dismiss the appeal.