Criminal liabilities in harassment, theft,

assault and sexual assault

Facts
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.

Issues: Any criminal liability that arises on these facts?

Rules and Analysis
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
http://cps.gov.uk/legal/s-to/u/stalking_and_harassment/#ao3dc – No longer available
[1]

– accessed 15 September 2015

http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-
[2]

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
David Cowley ‘intention permanently to deprive-effect of Section 6 (1) Theft Act 1968’
[8]

1986 J.Crim. L 50 (1), 24-27

[9]
[1985] QB 829
[10]
Ibid 837
[11]
[1985] AC 1029 (HL)
‘Theft Act 1978, S3 – making off without payment from the “spot”‘ (1993) Crim .L.R.
[12]

708-709
[13]
[1992] 1 A.C 699
[14]
[1834] EWHC Exch j79
[15]
[1961] AC 290
Harassment, Theft, Assault & Sexual Assault Scenario (lawteacher.net)