Litigation may be harassment

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A recent successful judicial review is not only an example of why there is a view (which I don’t share) that a new offence of stalking is needed but also shows how failures to prosecute effectively may be challenged.

In R (on the application of Waxman) v Crown Prosecution Service [2012] EWHC 133 (Admin) which is not on BAILII yet, Claire Waxman successfully challenged the CPS decision to drop the prosecution of her stalker, Elliot Fogel, and was awarded damages for its failure to take proper measures to protect her.

Mr Fogel had subjected Ms Waxman to serious and persistent harassment since about 2004. He was convicted twice, subjected to a restraining order and imprisoned for breach of a suspended sentence.

Nevertheless he continued to harass Ms Waxman by, among other things, issuing various claims against her. These were struck out (and a civil restraint order made) and a prosecution started for breach of the restraining order.

This relied in part on the commencement of proceedings being a breach of the restraining order but the CPS subsequently decided that the restraining order could not bar him from issuing claims as this would fetter every citizen’s right to issue proceedings. The prosecution was abandoned.

Although the judgment is mostly concerned with the ambit of the specific restraining order, it also made an important generic point.

As the concept of a civil restrain order evidences, the right to issue proceedings can be legitimately fettered and the ability for any proposed claim to be authorised by a Judge protects the otherwise barred litigant’s rights.

(Though not mentioned here, it could have noted that the case of Allen v London Borough of Southwark demonstrated back in 2008 that the persistent issue of proceedings may amount to harassment in breach of the PHA).

In short then, the CPS were wrong to believe the prosecution was bound to fail and to have abandoned the case. Ms Waxman was awarded £3,500 damages.

Besides having great sympathy for misery inflicted on the poor Ms Waxman, it is also frustrating to see such a negative approach being taken to dealing with Mr Fogel. The leniency with which Mr Fogel appears to have been treated in spite of his persistent harassment is also unedifying but depressingly common according to the findings of the Independent Parliamentary Inquiry into Stalking Law Reform.

Mr Fogel’s conduct was clearly of a stalking nature but it is debatable whether it would strictly satisfy the specific requirements of the Scottish offence on which the proposed new offence here is likely to be based. Yet it obviously could and did amount to harassment under the PHA and effective prosecution and enforcement should have provided Claire Waxman with the protection she needed and deserved.