In R v O’Neill [2016] EWCA Crim 92, [2016] the Court of Appeal had to determine what kinds of breach of a Family Law Act 1996 (FLA) non-molestation order might constitute an offence.
The single Ground of Appeal was that the Judge misdirected the jury as to the definition of harassing conduct.
Offence of breaching non-molestation order
(1) A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.
(2 )In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.
(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.
(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.
(5) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding [the general limit in a magistrates’ court], or a fine not exceeding the statutory maximum, or both.
(6) A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in such proceedings.
Family Law Act 1996 Section 42A
When a court order is breached it is normally dealt with as contempt of court. In relation to a non-molestation orders made under the Family Law Act 1996, it is a criminal offence to breach such an order
According to the Sentencing Council guidelines Breach of a protective order (restraining and non-molestation orders), a breach of a Non Molestation Order is :-
Triable either way (Note: the maximum sentence in magistrates’ courts for breach of a restraining order imposed under section 360 of the Sentencing Code is 6 months’ custody)
Maximum: 5 years’ custody
Breach of a protective order (restraining and non-molestation orders) – Sentencing Council
Offence range: Fine – 4 years’ custody
Triable either way means a criminal offence which can be tried in either the magistrates’ court or the Crown Court. The standard of proof required in a criminal case being higher than that required by civil courts.
The Protection from Harassment Act 1997 is an act of the Parliament of the United Kingdom to make provision for protecting persons from harassment and similar conduct. You may be interested in our article on Stalking and Harassment.
On the 9th January 2015 HHJ Dodgson during the original trial (at pp. 7 8 of the Transcript of the summing-up) and R v O’Neill [2016] EWCA Crim 92, [2016] Para 8 gave the direction :-
“What does ‘harassing’ mean? Harassment means causing alarm or distress. Intimidation has its ordinary meaning. I’m not going to try and define that anymore. It’s an ordinary English word. You’re quite capable of discerning amongst you what that means.
R v O’Neill [2016] EWCA Crim 92, [2016] Para 8
Now, we’ve also got the word ‘pestering’ in the indictment. .I direct you that in the circumstances of this case, pestering is not something that you need concern yourself with. That is not to say that the Crown say there was no pestering. They may well say that there was, of sorts, but it does not fit within a particular legal capsule, if I can put it in that way ..It would require a course of action. ..in these circumstances, just really cross out ‘pestering’. You’re going to be considering: were these communications harassing or intimidating .?”
The Court of Appeal R v O’Neill [2016] EWCA Crim 92, [2016] states at Para 39 :-
Pulling the threads together:
R v O’Neill [2016] EWCA Crim 92, [2016] Para 39
i) We respectfully agree with and adopt the opening lines of this passage from Blackstone as providing a concise, working understanding of “harassment”; thus, to repeat:
“The definition provided by s.7 is clearly inclusive and not exhaustive ‘Harassment’ is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to produce the consequences described in s.7. By s.1(3) of the Act reasonable and/or lawful courses of conduct may be excluded.”
ii) Harassment, within the meaning of the Order, cannot simply be equated with “causing alarm or distress”.
iii) The danger of doing so is that not all conduct, even if unattractive, unreasonable and causing alarm or distress, will be of an order justifying the sanction of the criminal law.
iv) Here, the Judge’s direction ought to have included a reference to the jury needing to be sure that the conduct was oppressive, not merely causing alarm or distress.
v) Some such further wording, dealing with the element or ingredient of oppressive conduct, would have served to focus the jury’s mind on the distinction between criminal conduct and conduct (however unpleasant) falling short of attracting criminal liability.
vi) Accordingly, there was a misdirection in this case as to the meaning of the word “harass” in the Order.
The Court of Appeal R v O’Neill [2016] EWCA Crim 92, [2016] states at Para 44 :-
In the circumstances, we are driven to allow the appeal
R v O’Neill [2016] EWCA Crim 92, [2016] Para 44
In an article on the 25 Bedford Row Barrister Chambers website New Guidance on the Meaning of Harassment :-
The criminal law does not and should not criminalise all forms of unpleasant or offensive behaviour, even that which occurs in a domestic setting. Rather, it exists to police conduct so serious that the resources of the state are required to intervene, punish and prevent such behaviour. That line is now drawn quite plainly following this judgment.
New Guidance on the Meaning of Harassment – 25 Bedford Row
Jonathan Herring is a Professor of Law, Exeter College, Oxford University (jon.herring@law.ox.ac.uk) and he wrote an article Defining Harassment.
No5 Barristers Chambers published Conviction quashed – guidance on meaning of harassment in s42A Family Law Act offence of molestation.
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What is Harassment ? was last updated on the 6th October 2024
