Conduct Focused Non Fatals, Common Defences to Non Fatals and Sentencing Issues, Intro to Theft

Question 1

Difference between conduct and research focused based offences

Answer 1

• Results based offences in NF sphere are those which we have discussed previously
• We look for the harm for the victim in the result of the offence
• Conduct based offences look at the conduct of the D

Question 2

Why create conduct based?

Answer 2

• They are created independently by common law and judges
• realistically used to fill the gaps between harm-based offences
• Therefore, where more typical NF offences can be ‘laddered’ the harm in these cases are based on how the act is carried out and therefore the laddering does not need to exist

Question 3

Sentencing and conduct based

Answer 3

• Rather than have laddering, it is down to the harm and culpability involved of the D which will determine the seriousness of these offences

Question 4

the difficulty of harassment and stalking

Answer 4

• Hard to legislate
• With most crimes, the resulting harm is one obvious outcome (death, theft, injury etc)
• Harassment cases tend to be far more cumulative, although each individual offence may seem minor but the overwhelming outcome is one of distress for the victim
• Therefore, there was a need to move on from the inclusion of psych injury and verbal assaults in OAPA to their own offences

Question 5

Protection from Harassment Act 1997 (PHA)

Answer 5

• S2 created the offence of harassment, making it an offence to pursue a course of conduct which was in breach of s1(1) or 1(1)a

Question 6

Protection from Harassment Act 1997 (PHA) 1(1)

Answer 6

A person must not pursue a course of conduct –

a) which amounts to harassment of another
b) which he knows, or ought to know amounts to harassment of the other

Question 7

Protection from Harassment Act 1997 (PHA) (1A)

Answer 7

A person must not pursue a course of conduct –

a) which involves harassment of two or more persons, and
b) which he knows our ought to know, involves harassment of those persons

Question 8

AR: a course of conduct which results in D being ‘harassed’

1. harassment

Answer 8

 The term harassment is not defined in the PHA and subsequently leaves a great amount of discretion as to the court to define
 Thomas v News Group Newspapers Ltd [2001]: the court will define as the term is commonly understood

Question 9

harassment

Answer 9

 S7(2): this section includes the def that harassment is ‘the causing of alarm or distress’
 However, this definition says that harassment includes alarm or distress – so could we find it without proof of either?
 Alarm and distress, as pointed out by O’Neill [2016] many acts cause alarm or distress, and are not harassment!

Question 10

Becomes apparent that this offence is determined by

Answer 10

each individual case case
 Curtis [2010] in which the D clearly caused harm and distress through assaults and dangerous behavior but a conviction was quashed as 6 incidents over a 9 month relationship which involved violence between both parties, did not amount to harassment

Question 11

so how do we find harassment

Answer 11

• The lack of a clear definition should not be off-putting, but merely ensure that you have a sufficient awareness of the law to be able to discuss possible outcomes
• If there is causing of alarm or distress, and these actions are oppressive – then consider harassment, but context is key

Question 12

AR part 2: A course of conduct?

Answer 12

 There must have been a course of conduct which which caused the harassment
 D’s behavior must have been persistent, with a course of conduct of at least 2 incidents
 S7(2): this section includes the def that harassment is ‘the causing of alarm or distress’
 Note that the victim involving themselves is irrelevant

Question 13

James v CPS

Answer 13

• The V was a manager of a social services team, who had a duty to return the calls of D (receiving the care) despite the fact that they were receiving persistent abuse
• It doesn’t matter that there was self-exposure, and the D was still liable

Question 14

Comparing courses of conduct

7(3) A course of conduct must involve –

Answer 14

a) In the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person
b) In the case of conduct in relations to two + persons, conduct on at least one occasion in relation to each of those persons
- If 1 V – there must be at least two circumstances where the D repeats certain conduct to the V

Question 15

but how do we define multiple incidents

Answer 15

 Kelly v DPP [ 2003]:D made 3 calls to V’s phone, leaving abusive messages. When listening to this, V was caused severe distress – these were a course of conduct rather than a single incident

Question 16

Multiple acts

Answer 16

• If there are multiple (2+ victims) then each V only needs to be subject to 1 act of harassment which will constitute a course of conduct
• Means that you avoid the prospect of D evading liability due to multiple acts of harassment being aimed at one person

Question 17

Multiple acts and courses of conducts

Answer 17

• To establish a course of conduct, it must be shown that as well as there being multiple acts – these must also be connected
• Easily done w/phone calls, what about letters, flowers or acts of a very different nature?
• Lau v DPP [2000]: Incident 1: D slapping a GF in face. Incident 2: D then (4 months later) threatened new GF w/brick.
• Conviction for s2 not upheld, the acts did not have the logical connection. There can be a gap in of

Question 18

The main Q for the courts to satisfy MR is:

Answer 18

Are the incidents logically connected as a single course of conduct?
If yes, then AR is satisfied.

Question 19

MR

Answer 19

• Split into 2 distinctions dependent on whether it is one or multiple victims

Question 20

MR for S1 & S1(A) Where this is one victim

Answer 20

• D must have known, or ought to have known at the time of acting that the conduct would result in harassment
• Two standards for this:
• Subjective: what did the D know?
• Objective: a reasonable person would know or realise the same thing
• When using the objective standard, the D’s failure to appreciate their own conduct will not be taken into account

Question 21

MR for S1 & 1A : Multiple victims

Answer 21

• A further level of intent required
• D must intend their conduct to persuade the victim either to refrain from something they are entitled to do or,
• to do something they are not
• This is a largely uncommon use of harassment, hence the specifics

Question 22

defences

Answer 22

• Considering such a broad offence, defences do exist in which D might raise
  S1 (3) highlights that harassment does not apply to conduct that
• pursued for preventing or detecting crime
• pursued under a rule of law to comply with a requirement by any person under any enactment
• pursuit of the conduct was reasonable

Question 23

 1(3) a:

Answer 23

Aimed at protecting police and law enforcement, but also investigative journalists – however, is closely scrutinized

Question 24

 1(3) b:

Answer 24

Aimed at protecting free speech through protests and demonstrations

Question 25

 1(3) c:

Answer 25

more problematic, proving on balance of probs that it was reasonable. Generally requires a difficult balancing of powers

Question 26

S4: causing fear of violence

Answer 26

• Criminalizes conduct that causes harassment to V, but then also leads to a fear that violence will be used against the V

Question 27

AR

Answer 27

• Shares many of the same AR elements as s2 with added fact that D causes V to fear violence
• A much more serious offence and carries up to 10 years imprisonment
• S4 does not require V to anticipate imminent violence but they must desire the harm to come to them

Question 28

MR

Answer 28

• Sufficient MR if a reasonable person, with the same knowledge D has, would have known that the course of conduct would cause the result of V fearing harm

Question 29

stalking

Answer 29

The existence of a sperate offence for stalking came as a result of harassment offences not being sufficient to cover the harm which stalking causes

Question 30

Conduct associated with stalking

S2A(3) acts or omissions which are associated with stalking-

Answer 30

a) Following a person
b) Contacting, or contacting a person by any means
c) Publishing any statement or other material, relating or purporting to a person
d) Monitoring the use by a person of the internet, email or electronic communication
e) Loitering in any place (public or private)
f) Interfering with any property in possession of a person
g) Watching or spying on a person

Question 31

S2A and S4A:

Answer 31

 Stalking is included under S2A and S4A and does not hold any specific or different MR – as long as the D has the AR there is no need to demonstrate they had reasonable knowledge of what they were doing

Question 32

s2

Answer 32

• S2A – consists of the base offence of harassment under S2 PLUS conduct which is associated with stalking = liability under S2A and an offence of stalking

Question 33

s4

Answer 33

 S4A requires the base element of S4 (causing fear of violence) with conduct associated with stalking = liability under S4A
 Allows for the added requirement that the V then suffers alarm or distress which causes an adverse effect on their day to day life
 For s4A A there is not just the fear of violence but V suffers serious harm or distress

Question 34

torture and slavery

Answer 34

 The reason for the existence of these offences is of a social justice nature - although we have non- fatal offences, false imprisonment etc
 However, these offences have allowed defendants to be labelled more appropriately and demonstrating that socially, we do not accept these crimes

Question 35

torture

Answer 35

• Created in S134 CJA 1988, with a max sentence of life imprisonment and is in accordance with Art 3 ECHR
• AR: inflicting pain or suffering on another, in performance or purported performance of official duties
• MR: intentionally inflicts severe pain or suffering

Question 36

slavery

Answer 36

 S1 Modern Slavery Act 2015 criminalizes with a punishment of up to life imprisonment
 2 ways of satisfying this:
 Holding someone in slavery or servitude and knows or ought to know that they are being hold
 Requiring someone to perform forced or compulsory labour and they should or ought to know

Question 37

AR and MR of torture

Answer 37

 AR: Holding someone in slavery or forcing someone to perform labour
 MR: they should have known or ought to have known of what they are doing