Tuesday, 8 March 2022

How to successfully defend a false accusation of harassment in court.

In 2016 I was falsely accused of 'harassing' David de Freitas. What happened is that Mr de Freitas went to the newspapers saying his daughter had been raped by me.

I was in distress and wrote to him and his lawyer several times protesting my innocence, sending them material that showed his daughter to be a liar. This included cctv of us buying sex toys the day after she said she was raped.
 
The idea was that he would realise he was wrong and stop giving press interviews. I also published that material online to oppose the inaccurate press reports.

According to him and the authorities who prosecuted me: Contacting him, accusing his (dead) daughter of being a liar and publishing photos of her buying sex toys was 'harassment'.
 
So what happened?
 
The trial took place at Westminster Magistrates Court on the 26th and 27th May 2016. A week later I was cleared of harassment with the judge saying I was a man 'wrongly accused' in his 12 page  judgement. But it was not an easy process. Understanding the law was an important part of my case.

Tip 1
There is no statutory definition of harassment, so it is open to (mis)interpretation by the authorities and the courts. Depending on what type of harassment you are accused of, the Harassment Act 1997 itself creates various defences, one of which is: 
 
'That in the particular set of circumstances the pursuit of the course of conduct was reasonable'.

Some lawyers or even the court might  believe that the defendant needs to prove that their actions were reasonable. This is completely wrong. I know of at least two people who were wrongly convicted and then won on appeal because the Magistrates did not understand the law. The burden is actually on the prosecution to show the course of conduct was beyond unreasonable. Your lawyer needs to make this clear to the court, who might otherwise get confused on who needs to prove what.

Tip 2
Text messages, emails or what you said to 3rd parties (during the alleged harassment) might be of relevance to show your innocent state of mind. I.E. In my case I presented to the court messages I had sent to the police that were similar to what I had sent Mr de Freitas, (which showed that Eleanor was a liar and a prostitute). In my case the judge stated: "The fact that he sent them to the police is, in my judgement, significant, as he clearly did not think he was doing anything wrong"
 
Tip 3.
The third most important thing, is to define what 'unreasonable' is, in terms of harassment. I.E. Where is the line between reasonable and unreasonable. Your lawyer will need to explain to the court what that is, or they will make their own interpretation. Never assume the court knows the law. Also don't assume your lawyer knows it either. Make sure they know about the below authorities:
 

Majrowski v Guys and Thomas’ NHS Trusts [2007]
‘Where the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2 ……….. Harassment is not defined in the Act, but it includes causing anxiety or distress. A course of conduct means conduct on at least two occasions …... A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour’

Lord Justice May in that case said (para 82):

"Thus, in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment.
 
Levi v Bates [2015]
The case of Levi v Bates [2015] is also pertinent because it stated that harassment had to targeted behaviour, namely behaviour aimed at someone, rather than behaviour which caused alarm or distress without being aimed at anyone, Thomas explained. Provided that it was targeted at someone, the conduct complained of did not have to be targeted at the claimant, if he or she was foreseeably likely to be directly alarmed or distressed by it; there was no reason why Parliament should have deliberately excluded from the Protection from Harassment Act 1997, persons who were foreseeably alarmed and distressed by a course of conduct of the targeted type contemplated by the word harassment.

Dowson v Chief Constable of Northumbria [2010] EWHC 2612 (QB)
The threshold for harassment was described as being at the point where the torment of the victim is of an order which would sustain criminal liability.

Scottow v Crown Prosecution Service 2020 EWHC 3421
This was a landmark case (with recent press coverage) concerning social media publications in which the Court of Appeal affirmed the right to offend. Paragraph 43 states: "The prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another".