Neutral Citation Number: [2008] EWHC 438 (Admin)

CO/5101/2007 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 8 February 2008
 
B e f o r e:

LORD JUSTICE MAURICE KAY 
 
MR JUSTICE WALKER 
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Between: 
S 
Claimant

v 

CROWN PROSECUTION SERVICE 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss M Sikand (instructed by Harrison Bundey) appeared on behalf of the Claimant 
Mr C Smith (instructed by CPS) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	LORD JUSTICE MAURICE KAY:  S stands convicted in the Youth Court at Harrogate of an offence under section 4A of the Public Order Act 1986 (as amended).  The charge he faced was in these terms:  
"On 13 October 2005 at Leeds with intent to cause Nigel Savery harassment, alarm or distress displayed any writing, sign or other visible representation which was threatening, abusive or insulting, thereby causing that person or another harassment alarm or distress ..."
He was also charged with, but acquitted of, the racially aggravated form of that offence.  
2.	Section 4A is the product of section 154 of the Criminal Justice and Public Order Act 1994, which amended the 1986 Act.  Section 4A, headed "Intentional harassment, alarm or distress", is in these terms: 
"(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he –
... 
 (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
 (2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling."
3.	At the end of the prosecution case, the advocate representing S in the Youth Court made a submission of no case to answer.  A number of points were raised, but it is only the one relating to causation which we shall have to consider in detail.  The case stated states that, at the close of the prosecution case, evidence had been adduced "to the following effect": 
"a. That on 12 October 2005 the Appellant took a digital photograph of Nigel Savery [the complainant] during the course of a demonstration outside the complainant's work premises known as the Covance Laboratory.  
b. During the course of the demonstration the complainant received substantial injuries which were still affecting him at the time of the trial.  
c. On 13 October 2005 the appellant transferred the digital photographic image taken on 12 October 2005 to his personal computer.
d. On the same date he used this image to construct a further image on his computer showing the photograph with a 'speech bubble' from the complainant's mouth added, with the words 'C'mon I'd love to eat you! We're the Covance Cannibals'.
e. On 13 October 2005 this new image was loaded into the internet as part of the 'Covance Campaign' website together with text that alleged by implication that the complainant had been convicted of violence in the past, an assertion which was untrue.  It further alleged that the complainant had grabbed at the wrists of activists and thrown them in front of cars and had bitten the hand of one of the protesters.
f. On 14 October 2005 Frederick Byrne, an Intelligence Analyst working for the North Yorkshire Police, captured from the internet part of the Covance Campaign website including the image and text referred to above.  He described that material as being there for public viewing.
g. The complainant was aware of the Covance website.  Immediately after the incident he did not see that material but was told about the material by one of his colleagues a few days after 12 October 2005.  He was further told that the material was on the internet and therefore available for public viewing.  He had not personally viewed the material at that stage due to difficulties with his injuries.
h. On 8 March 2006 the witness Byrne printed out a hard copy of the photograph captured as a result of a request from Special Branch.
i. On 8 March 2006 this photograph, exhibit (fb/mar/01), was shown to the complainant by the Police Officers during the course of their investigation.  As a result of seeing the photograph coupled with the knowledge that it had in the past been displayed to the public on the internet the complainant suffered harassment, alarm or distress.
j. There was no evidence to show that this material was still on the Covance Campaign website on 8 March 2006." 
4.	The District Judge also explained her reasoning in paragraph 7 of the case stated in these terms:  
"I was of the view that any person who posts material on the internet puts that material within the public ambit and that this was the event that caused the eventual harassment, alarm or distress.  On 8 March 2006 the police officers had done nothing more than to bring to the complainant's attention the precise details of the material.  The material could at any time whilst it was displayed have affected the complainant's personal security as it showed, and the complainant knew that it showed, a photograph of him which thereby identified him as working as a security guard for an animal testing company.  The material was posted on a website the content of which opposed the testing of animals in this way and may therefore have led to him being targeted in a campaign." 
5.	She rejected the submission of no case to answer.  The question posed by the case stated for this court is in these terms: 
"Where there is evidence that: 
i. a defendant has with intent to cause another person harassment, alarm or distress displayed by any writing, sign or other visible representation which was threatening, abusive or insulting by publication of such material on an internet website available to the public, 
ii. that other person has not seen the material on the internet but is aware that there is material about him on a particular website, 
iii. that the person is shown a hard copy of that material by a police officer some five months later, as a result of which he suffers harassment, alarm or distress, 
iv. by this time there is no evidence that the said material is still available for viewing on the internet.
Is this evidence upon which a Court may conclude that there is case to answer that the defendant thereby caused that person harassment, alarm or distress?" 
6.	It is apparent from the way in which that question was posed that the case stated was formulated simply by reference to the issue of causation.  However, on behalf of S, Miss Sikand seeks to raise a second question, which relates to the intention of S.  She seeks to submit that the District Judge made no finding as to S's intention and that there was no evidence to support a finding that he had the requisite intention.  That is not a matter covered by the question posed by the case stated.  Nor was it an issue upon which the District Judge was asked to focus, either at the trial or in the stating of the case for this court.  No application has been made to this court for the case to be remitted to the District Judge for amendment.  In my judgment, all that presents the appellant with insuperable procedural difficulties.  
7.	Miss Sikand seeks to rely on Whitehead v Haines [1965] 1 QB 200, and in particular a passage in the judgment of Winn J at page 209.  However, that authority does not deal with the position where an appellant seeks to found a perversity challenge relating to a new issue on the basis of a case stated which has not been bespoken or tailored to deal with that issue.  In my judgment, it is not open to Miss Sikand to raise this matter at this stage.  Moreover, even if she had succeeded in surmounting that procedural difficulty, I am satisfied that she would have been unable to make good the substantive submission.  It is apparent from the terms in which the District Judge has posed the question for this court, that she did find the intention established both at the end of the prosecution case and at the conclusion of the trial.  It will be recalled that the question posed refers specifically to evidence that a defendant has "with intent ..." 
8.	In my judgment, such an inference was clearly open to the District Judge from the evidence concerning the creation of the image, its terms and its posting on the Covance Campaign Website.  
9.	Having dealt that preliminary point, I therefore turn to the real and more difficult issue of causation.  The findings of fact at the end of the prosecution case focused on the events of 8 March.  The wording is important.  The District Judge said: 
"As a result of seeing the photograph, coupled with his knowledge that it had in the past been displayed to the public on the internet, the complainant suffered harassment, alarm, or distress."  
10.	The words "coupled with" led Mr Smith, on behalf of the Crown Prosecution Service, to concede that the harassment, alarm or distress only crystallised sufficiently for proof of the offence on 8 March.  Miss Sikand's submission is that, as at 8 March, it could not be said that the harassment, alarm or distress had been caused by the appellant's act of displaying the material.  The words "thereby causing" require more of a nexus between the act of display, which occurred on 13 October, and the sustaining of the harassment, alarm or distress as a response to being shown a photograph by a police officer on 8 March, by which time there was no evidence that the image was still on the Covance website.  
11.	It is necessary to consider the "coupled with" finding of fact, alongside the reasoning of the District Judge which I have previously set out, and in particular the observation that "any person who posts material on the internet puts that material within the public ambit, and that this was the event that caused the eventually harassment, alarm or distress". 
12.	Miss Sikand refers to a number of authorities which seem to me on close analysis not to illuminate this case.  The two on which she places particular reliance are Rogers v DPP (unreported) 22 July 1999, CO/4041/98 and Chappell v DPP [1989] 89 Crim App R 82.  Rogers is a case which concerned a violent demonstration at the complainant's farm.  The complainant, who was harassed, alarmed or distressed by it, was not observing it directly, but simultaneously via closed circuit television inside his house.  The Divisional Court found no break in the chain of causation.  However it did not consider the implications of an internet case.  Nor for that matter did Chappell, which in any event was a case under section 5, before the enactment of section 4A.  There is a significant difference between the two sections: section 5 requiring the display to be "within the hearing or sight" of a person likely to be caused harassment, alarm or distress thereby.  It may well be that by the time the Public Order Act was amended in 1994, the omission of the "sight and sound" requirement, was conditioned by an appreciation of the problems created by the posting of offensive material on websites, although both statutes contain similar provisions about display by a person inside a dwelling and the effect on a person inside that or another dwelling: see sections 4A(2) and 5(2).  
13.	A central part of the District Judge's reasoning is that "any person who posts material on the internet puts that material within the public ambit, and this was the event that caused the eventual harassment, alarm or distress".  Put another way, she was satisfied that but for the appellant's act in October, the complainant would not have suffered harassment, alarm or distress in March.  Can it be said that the passage of time and the intervening acts of the police officers broke the chain of causation?  I do not consider that it can.  Once the appellant with the requisite intent had posted the image to the Covance Campaign website, he took the chance that the intended harassment, alarm or distress would be caused to the complainant.  Whether it was ultimately triggered by a fellow activist, by a previously unknown and unconnected member of the public, or by a police officer who did not share the intention in the course of his duties, seems to me to be immaterial.  Take the hypothetical example suggested by my Lord in the course of argument: a pervert posts a doctored photograph of an identifiable woman to a website, falsely representing her in circumstances of indecency.  The image comes into the hands of the police in the course of a subsequent investigation.  They show it to the woman who did not previously know of it and she suffers profound distress.  It seems to me that if the man had the requisite intent and put the material into the public domain in that way but did nothing else, he could be convicted under section 4A.  
14.	In my judgment, the reasoning and finding of the District Judge in the present case in relation to causation was not erroneous.  I would answer the question in the affirmative and dismiss the appeal. 
15.	MR JUSTICE WALKER:  I agree.  Section 5 of the Public Order Act 1986 requires that the relevant acts take place within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.  No such requirement is found in section 4A of that Act.  In those circumstances, it seems to me that Parliament has contemplated that, for the purposes of section 4A, there is no necessity that the acts identified in sub‑section (1)(a) and (b) should have been acts which took place within the hearing or sight of the person who is in fact caused harassment, alarm or distress.  Suppose that the police, rather than showing the complainant an image which had been posted on the World Wide Web, simply told that person details of what had happened.  If the posting of the material on the World Wide Web had been done by the defendant with intent to cause a person harassment, alarm or distress, and it did indeed cause harassment, alarm or distress, albeit only because the person in question was informed by another, I see no objection for that reason only to the defendant being found guilty of the offence.  That is a more extreme case than the case before us, where the complainant was indeed shown a print‑out of the captured image.  
16.	For the reasons given by my Lord, I agree that the arguments which have been courteously and ably advanced by Miss Sikand for the appellant cannot avail him, and I too would dismiss this appeal.  
17.	LORD JUSTICE MAURICE KAY:  Thank you both, very much.
18.	MISS SIKAND:  My Lord, I wonder whether you might consider leave and/or certification of a question.
19.	LORD JUSTICE MAURICE KAY:  What do you want us to certify?
20.	MISS SIKAND:  Well, in order to convict a person under section 4A, whether it is necessary for the writing, sign or other visible representation complained of to still be on display at the time the harassment, alarm or distress occurs. (pause)
21.	LORD JUSTICE MAURICE KAY:  Mr Smith, we are not particularly taken with Miss Sikand's question, but we do think there may be a question bubbling along beneath the surface which might be appropriate for certification.  Equally, if we do come to that conclusion, we are virtually certain to refuse leave, but it would enable Miss Sikand to seek it elsewhere.  
22.	Miss Sikand, could you in writing let us have your further thoughts on a refined question by Wednesday of next week?  I say that because we are not sitting together after Friday, and in fact I shall be out of the jurisdiction the following week.  So we must have your refined draft question by Wednesday.  Show it to Mr Smith so that he can comment on it or submit a rival question, or submit in writing if he wishes that we should not certify at all, but if we can have your question by Wednesday and Mr Smith's comments by the close of play on Thursday, we shall decide the matter on Friday.  I think we have to come into court to do it.  We will be in court together on Friday anyway, but it will not be necessary for anybody to attend, we will simply make an order either certifying or not certifying, and if we certify, as I say, it is very likely we shall refuse leave.  That is where we are.
23.	MISS SIKAND:  Will the matter be listed, my Lord? 
24.	LORD JUSTICE MAURICE KAY:  It will have to be listed, but no attendance will be necessary.
25.	MISS SIKAND:  Thank you.
26.	MR SMITH:  My Lord, I am formally instructed to apply for costs.  My instructions go so far as to say that the law clerk assisting me would tell me the figure, and your Lordships know there is nobody behind me.  I am also mindful of the age of the defendant in the case.
27.	LORD JUSTICE MAURICE KAY:  Yes.  Was he able to discharge the financial order in the Magistrates' Court?
28.	MISS SIKAND:  My Lord, he was funded by way of a representation order, as he is here too, this being treated under the Criminal Legal Aid regulations, as case stateds from the criminal courts now are.  He is publicly funded.  Of course, it being a representation order, it is open in some circumstances for the court to make a recovery of defence costs order.
29.	LORD JUSTICE MAURICE KAY:  What are his present circumstances?  Is he a student or employed? 
30.	MISS SIKAND:  He is a student, my Lord.  My Lord, I would submit that, in the circumstances of this case, it would be wholly inappropriate to order costs against him, given the trouble it has caused a number of us in deciding this particular question, and that it is a vexing question and an important one that ought to have been decided by this court.  
31.	LORD JUSTICE MAURICE KAY:  We do not think there is any point in making an order.  That is not because we have any particular sympathy with your client's wish to bring the matter here or indeed elsewhere or with his original behaviour, but it seems to us to be a pointless order to make.  But you, of course, have a representation order, and if you need an order for an assessment in relation to that, you may of course have it.
32.	MISS SIKAND:  Sorry, I did not hear that.  
33.	LORD JUSTICE MAURICE KAY:  If you need an order for assessment of your costs under your representation order, you may have it.
34.	MISS SIKAND:  I am grateful for that.  Thank you.