Criminal liabilities in harassment, theft, assault and sexual assault

Question

Matthew and Louise had been going out for six months but broke up a week ago. Since then, Matthew has bombarded Louise with about fifty text messages a day, sometimes begging her to take him back and others threatening to harm her family unless she gives him another chance. Louise, who suffers from a severe anxiety disorder, becomes extremely stressed as a result and refuses to eat or leave the house. She starts to self-harm so her mother, Hannah, insists that she sees a doctor who prescribes anti-depressants.

Louise's brother, David, comes home from university in order to confront Matthew about his behaviour but Matthew avoids him. David knows that Matthew has just joined a prestigious gym in town so he poses as a prospective member, hoping to bump into Matthew. One of the membership team, Sasha, offers David a tour of the facilities but he says that he would rather look around on his own. She agrees and gives David a voucher for a free latte and cake in the hope that he will take out a membership. David is sitting in the coffee shop drinking his latte when Matthew comes up behind him and puts a hand on his shoulder saying 'what you are doing here - you're not a member'. Startled, David jumps up and spills scalding hot tea down the front of his trousers.

David lunges at Matthew who dodges and runs away. Matthew decides to hide in the ladies' changing rooms, reasoning that David will not look for him there. Desperate not to be caught, Matthew takes off his clothes, wraps himself in a towel that he finds on a bench and goes into the mixed-sex sauna that is situated between the ladies' and men's changing rooms, knowing that it is dimly lit so that David will not see him if looks in. The sauna is empty apart from Jenna, who starts flirting with Matthew. She drops her towel and invites him to touch her. They kiss passionately and Matthew fondles her breasts but she pushes him away when he tries to take things further. Matthew asks what is wrong and she explains that she just wanted to have her first sexual experience so that she could tell her friends at school. He is horrified to find that she is 13 as he'd assumed that she was over 18 as the gym is open to adult members only but Jenna explains that her mother works at the gym and that she often gets to use the facilities when her mother is working. Matthew rushes into the men's changing room and rummages through the lockers looking for some clothes so that he can get out of the gym and go home. He finds a tracksuit and a baseball cap and puts them on. Once he is outside the gym, he throws the cap in a rubbish bin.

On the way home, Matthew stops to fill his car up with petrol but, as he goes into the garage to pay, he realises that his wallet is still in his jacket at the gym. He explains the situation to the cashier who says that he can return with the money later as long he leaves his name and address. Matthew writes David's name and address on the form he is given by the cashier. As Matthew gets back in the car, he realises that there is a twenty pound note in the pocket of the tracksuit he is wearing so he stops at the florist to buy some flowers for Louise. He goes back to the gym and manages to sneak into the ladies' changing room and collect his clothes. He changes into them, puts twenty pounds from his wallet into the tracksuit pocket and returns it to the men's changing room. On his way out of the gym, he is finally confronted by David who pushes him in the chest. Matthew stumbles trying to keep his balance but puts his hand through the plate glass window in reception, severing an artery. Matthew is rushed to hospital and has emergency surgery which saves his hand but he is left with very little feeling and restricted movement. Louise visits him in hospital and they are reconciled.

Discuss any criminal liability that arises on these facts.

Answer

On analysis of the facts provided, both Matthew and David would be guilty of various offences. Each of these will be addressed in in turn.

Harassment

By virtue of The Protection from Harassment Act 1997 Section 4, a person will be guilty of putting people in fear of violence if they undertake a course of conduct which causes another person to fear that violence will be used against them. If it is determined that a reasonable individual would also believe that the same conduct would cause the victim to fear violence against them then it will be presumed that the defendant ought to have known this. Section 4 (a) (1) (b) (ii) covers an additional offence of stalking involving a fear of violence or serious alarm or distress. Such conduct occurs when the defendant has on two or more occasions caused another to fear violence or serious alarm or distress against them that has a substantial adverse effect on their day to day activities.[1] The definition of substantial adverse effect is noted in the Home Office guidelines and stipulates physical and ill mental health as one potential effect.[2] Matthews conduct would fall within the remit of this act as he is making threats via text message towards Louise and her family which has resulted in a deterioration in Louise's mental health, as she already suffered from an anxiety disorder, a condition that Matthew should know would make her more vulnerable. These text messages have occurred on more than two occasions, as it is stipulated within the facts of the case that Matthew has 'bombarded' Louise with up to fifty text messages a day.

In order to prove that the defendant had committed the offence of harassment the defendant's behaviour must be oppressive and a leading case in this area is that of R v Curtis.[3] On initially hearing the case, Judge Heath directed the jury to,

Bear in mind the length of time between each incident and that the fewer the number of incidents and the longer between them, the less likely it will be that they amount to a course of conduct. You must all agree upon the incidents which amount to the course of conduct if you are sure that there was one.[4]

Upon appeal of the conviction the court revisited the two limbs of S4. The first limb is the defendants conduct causes the victim to fear that violence will be used against them and such conduct has occurred on at least two occassions and the second limb is that if a reasonable person was in possession of the same information, they would think that the same conduct would cause fear. It was concluded that the judge had provided a lack of direction on the elements of the offence to the jury.[5] The six incidents of alleged harassment took place over a period of 9 months and were not linked in order to create a course of conduct as specified in the act and the court concluded that the defendant's behaviour would not be considered harassment within the meaning of the act. By examining the Court of Appeals reasoning, Matthews conduct would amount to harassment as he has sent a large number of text messages every day for a week, which are linked in their content, along with Louise's preexisting anxiety disorder which would mean both limbs of S4 would be satisfied.

Sexual Assault

In compliance with the Sexual Offences Act 2003 Section 9 (1);

A person aged 18 or over commits an offence if -

  1. he intentionally touches another person,
  2. the touching is sexual.

It is irrelevant whether the person under 16 consented to the touching, as in this case where Jenna encourages Matthews's behaviour.[6]Therefore in Matthews case the court will not consider the fact that Jenna invited Matthew to touch her. In the case of R v Davies[7] the facts are as follows: the defendant pleaded guilty to having sexual intercourse with the victim who was 13 years old and had been drinking alcohol at the time, on the belief that she was 15 and had provided her consent. The court noted this in their sentencing and the defendant was given a 16 month sentence which was later reduced to 9 months. Therefore, with reference to the above case, the court may factor in Matthews genuine belief that Jenna was over the age of 18 when deciding on the appropriate sentence. His presumption could also have been considered reasonable as it is grounded on the fact that only adult members are allowed in the gym, so upon seeing Jenna in the gym he did not question her age.

Theft

Upon leaving the gym, Matthew takes a tracksuit from the men's changing room and a cap which he later discards in a dustbin. The Theft Act 1968 Section 1 (1) states that an individual will be guilty of the crime of theft if they dishonestly appropriate property belonging to a person with the intention of permanently depriving the other of it. The term dishonest is difficult to define as no further explanation is provided within the act beyond the statement that a person may still be considered dishonest notwithstanding a willingness to pay which is noted in Section 2 (2). Determining the interpretation of dishonesty is a matter which is left to the jury. In this instance Matthew returned the tracksuit to the men's changing room along with the £20 thus, the matter would fall under Section 6 (1) which covers borrowing in circumstances making it equivalent to an outright taking.[8] In the case of R v Lloyd, Bhuee & Ali[9] the defendant, Lloyd, took films from his place of work and passed them to Bhuee and Ali who copied them for distribution purposes. The films were later returned to Lloyd who gave them back to his employer. On hearing the appeal, Lord Lane made reference to the usability of the films upon their return to the employer,

'The goodness, the virtue, the practical value of the films to the owners has not gone out of the article; That borrowing, it seems to us, was not for a period, or in such circumstances, as made it equivalent to an outright taking or disposal. There was still virtue in the film.'[10]

Using the logic laid out by Lord Lane, Matthew returned the tracksuit within a short space of time and its use as a tracksuit to the owner has not been diminished. If this is a stance that would be taken by the court, Matthew may avoid prosecution for taking the tracksuit. However, Matthew does discard the cap when he leaves the gym which would fulfil the definition of the offence of theft as laid out in the act as his conduct is such that he has permanently deprived the owner of the object by discarding of it. Matthew would therefore be guilty of theft of the cap.

Making off without payment

Section 3 of the Theft Act 1978 was brought into force in order to prevent defendants who formed a dishonest intent not to pay for goods or services after being in receipt of them, avoiding conviction under deception offences which was a major shortfall in the Theft Act 1968. Section 3 (1) states;

a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.

Section 3 covers such circumstances were an individual fails to pay for food at a restaurant, a hotel bill, taxi fare or as in the current case, filling the car with petrol and driving away without payment. In accordance with R v Allen[11] there must be an intent by the defendant to permanently avoid repayment of the goods or services. In this case the defendant left a hotel after failing to pay the bill. He later contacted the hotel saying that he was waiting on payment from a business transaction and therefore had financial problems. He said that he would collect his belongings and leave his passport in order to secure payment. On returning to the hotel the police were waiting for him and he was arrested. On the initial judgement the court ruled that as there was a failure to pay on the spot, or on the day that he defendant left the hotel, he was guilty. Upon appeal the conviction was quashed as there needs to be an intent to permanently avoid payment: to temporarily avoid payment was not covered within the act.[12]

In Matthews case the cashier asks him to return later that day with payment for the petrol and requests that he leave his name and address. Matthew leaves David's details instead of his own which could constitute an intent to permanently withhold payment as he has dishonestly provided false information and tried to avoid being contacted by the cashier.

Assault

David, approaches Matthew and pushes him which results in him falling into a window and injuring his hand. As a direct result of David's actions, Matthew must undergo emergency surgery which saves his hand but leaves him with permanent injuries as he is unable to experience full feeling in the injured hand. Section 20 and 18 of the Offences Against the Person Act 1861 govern wounding and grievous bodily harm. Section 20 deals with offences of a less serious nature whilst section 18 covers more serious offences which carry a higher sentence.

A section 20 offence takes place when a person unlawfully and maliciously wounds another person or inflicts grievous bodily harm upon another person. Grievous bodily harm is defined as harm that is serious in nature and includes the loss of sensory function. It is also a requirement of the prosecution to show that the defendant intended or foresaw that some harm would come to the victim. The importance of directing the jury to consider this element of the offence upon determining guilt is shown in the case of R v Savage; DPP v Parmenter.[13]

There are two possible offences within Section 20, wounding and causing grievous bodily harm. Wounding is defined as a break in the skin as highlighted in the case of Moriarty v Brookes.[14] Whilst grievous bodily harm is a serious injury.

The case of DPP v Smith[15] addresses whether the defendants should have reasonably foreseen that his actions would cause the other harm, which is an important element in determining whether the defendant is guilty of causing grievous bodily harm. In the case of David the jury would need to consider whether he foresaw that by pushing Matthew when he was in the vicinity of a plate glass window, he would fall onto it causing extensive injuries. It should also be considered that Matthew approached David in the gym and put a hand on his shoulder, after which David spills his hot drink down his trousers as he is startled by Matthew.

Whilst it is more obvious that by David pushing Matthew he would be causing him harm, it would be less likely that Matthew would have foreseen that David would have injured himself by home placing a hand on his shoulder.

Conclusion

To conclude, each of the offences noted above have resulted as a direct consequence of both Matthews and David's conduct. In the case of Matthew the court may take into consideration mitigating factors such as his belief that the girl he had touched in a sexual manner may be over the age of 16 and that he had returned the stolen tracksuit to the owner along with the money. This may mean that Matthew is given a reduced sentence. In the case of David, the extent of his liability rests on whether the jury believe that he should have foreseen that by pushing Matthew in the manner and location that he did, he would have caused him harm.

Footnotes

[1] http://cps.gov.uk/legal/s-to/u/stalking_and_harassment/#ao3dc - No longer available - accessed 15 September 2015

[2] http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars-2012/018-2012 - No longer available - accessed 15 September 2015

[3] [2010] EWCA 123

[4] Ibid 22

[5] Ibid 33

[6] Jane Creaton, 'Indecent assault' (2006) Pol.J. 79 (1) 92-94

[7] [2005] EWCA Crim 1363

[8] David Cowley 'intention permanently to deprive-effect of Section 6 (1) Theft Act 1968' 1986 J.Crim. L 50 (1), 24-27

[9] [1985] QB 829

[10] Ibid 837

[11] [1985] AC 1029 (HL)

[12] 'Theft Act 1978, S3 - making off without payment from the "spot"' (1993) Crim .L.R. 708-709

[13] [1992] 1 A.C 699

[14] [1834] EWHC Exch j79

[15] [1961] AC 290