Hilson v McCarthy

Factual and Procedural Background

This judgment concerns an appeal by way of a case stated from the Crown Court sitting at Warwick on 16 October 2018. The appellants, domestic partners involved in long and contentious family court litigation, had been charged with harassment contrary to sections 2(1) and (2) of the Protection from Harassment Act 1997. They were convicted following a trial before District Judge Ikram at the City of Westminster Magistrates' Court on 9 July 2018. Their appeal against conviction was heard on 15 October 2018 and subsequently dismissed on 16 October 2018, with each appellant sentenced to 16 weeks' imprisonment.

The charge related to a course of conduct alleged to have harassed the designated family judge for East London ("the Judge") between 14 September and 2 October 2017. The conduct involved five incidents, including use of the Judge’s personal email address, threatening comments made in the court building, remarks during a court hearing, sending a birthday card to the Judge’s home, and a live video posted on social media containing derogatory statements.

The Crown Court made detailed factual findings on each incident, concluding that four of the incidents amounted to harassment, while the appellants did not give evidence. The Crown Court sought the opinion of the higher court on whether the acts found capable of amounting to harassment were legally sufficient to sustain that conclusion.

Legal Issues Presented

1. Whether the acts committed by the appellants, as found by the Crown Court, were capable in law of amounting to harassment under the Protection from Harassment Act 1997.
2. Whether incidents involving use of the Judge’s personal email address and comments made in court could constitute harassment, given arguments about public domain information and the threshold of criminal liability.

Arguments of the Parties

Appellants' Arguments

• Incident two (comments to security personnel) and incident four (birthday card) were conceded as capable of amounting to harassment.
• Incident one (use of private email address) and incident three (comments in court) were argued not to be capable of amounting to harassment due to insufficient gravity.
• Reference to C v the Crown Prosecution Service and Majrowski v. Guy's and St Thomas' NHS Trust was made to emphasize the distinction between unreasonable conduct and criminal harassment.
• Incident one was argued to be merely sending an unsolicited email, which cannot amount to harassment.
• Incident three was argued on the basis that the Judge had placed personal information in the public domain (e.g., Twitter), thus losing protection against harassment by mention of such information.
• The appellants contended that the Crown Court failed to recognize the evolving nature of public discourse and privacy expectations.

Respondent's Arguments

• The Crown Court's analysis was correct and should be upheld.
• The focus of the offence is on the effect and intention behind the overall course of conduct, not isolated incidents.
• There is no legal principle that publicly available information cannot be used in a manner amounting to harassment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the six legal elements necessary to prove harassment under the Protection from Harassment Act 1997, emphasizing the requirement for a course of conduct on at least two occasions, targeted at an individual foreseeably harmed, objectively calculated to cause alarm or distress, and judged oppressive and unacceptable within the relevant social or working context.

The court rejected the appellants’ argument that incidents one and three could not amount to harassment due to their alleged insufficient gravity or public domain nature. It held that the context and intent behind the conduct are decisive, not merely the public availability of information. The court noted that information placed in the public domain does not grant implicit consent for its use in harassment.

In incident one, the appellants’ deliberate use of the Judge’s personal email address, obtained through considerable effort, was found to convey knowledge of her private life and to cause alarm and distress, thus constituting an element of harassment.

Regarding incident three, the court held that mentioning publicly available personal information with the purpose of letting the Judge know the appellants were aware of her private domestic arrangements was oppressive and objectionable conduct capable of amounting to harassment.

The court acknowledged the Crown Court’s findings that the conduct was directed against a judge performing an important public duty and that the appellants intended to intimidate and harass, thereby prejudicing the administration of justice. This added gravity supported the conclusion that the conduct met the threshold for criminal liability under the Majrowski test.

Ultimately, the court found no error in law in the Crown Court’s determination that the four incidents were capable of amounting to harassment.

Holding and Implications

The court DISMISSED the appeal, affirming the Crown Court’s decision that the conduct of the appellants was capable of amounting to harassment under the Protection from Harassment Act 1997.

The direct effect is the upholding of the appellants’ convictions and the associated sentences. The decision confirms that the use of private information, even if partially publicly available, can constitute harassment when used oppressively and with intent to cause distress, particularly when directed at a public official performing judicial duties. No new legal precedent was established beyond the application of existing principles to the facts of this case.