The defendant was convicted in the Crown Court of stalking a complainant, in consequence of which a restraining order was made. The order related to the complainant, a police officer who was the investigator in relation to the prosecution proceedings, and a witness in those proceedings. In respect of each of them the order enjoined the defendant, subject to specified exceptions, not to refer to him expressly or impliedly by communicating in written form, in typescript, by e-mail or on social media. Subsequently the defendant sent a letter to the Multi-Agency Public Protection Arrangement Team in which she accused the police officer of serious misconduct. Subsequently, a tweet was sent from the defendant’s Twitter account to the Crown Court containing a link to a crowd funding web page which had hyperlinks to documents which named the police officer and the witness. The commentary in the crowd funding page made serious allegations against them, though without naming them. The defendant was convicted on two counts of breach of the restraint order, contrary to section 5(5) of the Protection from Harassment Act 1997, the first count relating to the letter, and the second count relating to the tweet. She appealed against the conviction on the second count on the grounds that the offence was not an absolute one and the judge erred in failing to direct the jury that they had to be satisfied that at the time that she published the tweet, she knew that the embedded link to the crowd funding page contained documents referring to the police officer and the witness in breach of the order.
On the appeal—
Held, appeal dismissed. Section 5(5) of the Protection from Harassment Act 1997 expressly provided that the offence of breach of a restraining order was only committed if the defendant did not have a reasonable excuse for the prohibited act. The inclusion of the “without reasonable excuse” qualification in section 5(5) of the Act met the inherent objection to punishing a blameless individual, since an honest mistake might be a reasonable excuse, and that was the extent to which Parliament had intended to introduce any element of mens rea into the offence. It allowed for a situation in which a defendant did not know the circumstances which gave rise to a breach of a restraining order, while also allowing the jury to convict where a defendant ought to have known, that is to say, where the lack of knowledge was not reasonable, by providing for what could be described as the middle ground between full mens rea and strict liability. That there was therefore no need to read into the statute any words importing a requirement of knowledge or additional mens rea. In the present case the question of reasonable excuse, albeit in bald terms, had been left to the jury, but there was no sensible basis on the facts to suggest, nor was it suggested, that the defendant had a reasonable excuse for the prohibited references to the officer and the witness. It followed that the defendant’s conviction was safe (paras 42–49).
Claire Mawer (assigned by the Registrar of Criminal Appeals) for the defendant, Farah Damji.
Richard Hearnden (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.