Conn v Sunderland City Council [2007] EWCA Civ 1492

Crime scene police line tape

Must each incident be a crime? No is the correct answer.

Often cited as authority for the proposition that each incident in a course of conduct has to be a criminal offence. Not only is that overstating the decision but it would certainly amount to bad law.

The PHA makes harassment a criminal offence as well as a civil tort but to suggest this means the conduct has to be criminal before it can be harassment is put the cart before the horse and defeat the purpose of the PHA (which was to criminalise conduct which would otherwise be lawful).

The correct position was neatly expressed in the same month by Lord Emslie in Robertson v Scottish Ministers [2007] CSOH 186; “criminality is … a consequence rather than a prerequisite of civil harassment under section 1(1) [of the PHA]”.

In practice, that overstated interpretation of has been fatally undermined by subsequent decisions (see the list below) though the following words of Gage LJ should be a mantra:

“It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognizing what is not harassment for the purposes of ss 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”

For a cracking example of obviously non-criminal conduct which could amount to harassment, look at Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46

Conn v City of Sunderland [2007] EWCA Civ 1492

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5 Comments

Filed under Cases, Harassment

5 responses to “Conn v Sunderland City Council [2007] EWCA Civ 1492

  1. Pingback: Veakins v Kier Islington [2009] EWCA Civ 1288 | Chop the Knot

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  3. AM

    Are you saying conduct must sustain criminal liability or not?
    Surely, Conn, states it should.

    • What I am saying (and which is my opinion) is that Conn is wrong if it is taken to mean that each incident in a course of conduct has to be of a criminal nature before the course of conduct can be considered to be harassment. The purpose of the Act was to criminalise conduct which, while not criminal in and of itself, had the effect of being harassment.

      Asking whether the conduct must sustain criminal liability is to ask the wrong question. The question is whether the totality of the incidents amounts to a course of conduct which “… is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress …” (per Lord Sumption JSC in Hayes v Willoughby [2013] UKSC 17).

      If it does then it is criminal under s2 of the Act. The point is that the Act makes the course of conduct criminal; it is not the conduct being criminal which makes it harassment.

      • AM

        I see your point when you state:
        “If it does then it is criminal under s2 of the Act. The point is that the Act makes the course of conduct criminal; it is not the conduct being criminal which makes it harassment.”

        Has the Appeal or Supreme court ruled this to be the case? Have there been cases since Hayes?

        Then there is the issue of “ought to know”. There are cases where the police investigate harassment, conclude the acts are nowhere near the threshold and then a civil claim is made for an injunction and the judge claims “a reasonable person ought to know the conduct was harassment”. Effectively, the judge rules the police are not reasonable people.

        Has there been a ruling on “ought to know the conduct amounted to harassment?”

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