Non-Molestation Breach Conviction Quashed Due to Misdirection

Harassment is an unfortunate fact in some relationship breakdowns. In a bid to reduce the incidence of harassment and molestation following splits, the Family Law Act 1996 made it a criminal offence to breach a non-molestation order, rather than a contempt of court. The practical effect of this change was to make such a breach a matter for the police, not one which requires yet another round of court proceedings.

The Act states that any such breach is a criminal offence. However, it dates from ‘pre-Internet’ days and was framed in a time when email and social media were not an established fact of life. An appeal against a conviction for sending distressing emails was heard by the Court of Appeal recently.

The case involved a woman whose stormy relationship with a married solicitor ultimately broke down. They had a daughter who lived with the solicitor after the split. The woman’s behaviour led to a non-molestation order being granted against her. After she sent a number of emails of an unpleasant nature, some of which made allegations about the man’s conduct and sexual preferences, she was convicted of breaching the order.

She appealed, arguing that the judge had misdirected the jury because the emails were intermittent and, whilst admittedly unpleasant, could not be said to be oppressive – a key component, it was argued, for them to constitute harassment. One crucial fact was that there were significant gaps between the emails: they were not continuous or regular.

The judge’s directions to the jury had been very brief and intimated that harassment occurred when the communication would cause harm or distress.

The Court upheld the woman’s case, ruling that for actions to constitute harassment, they have to be oppressive, not just unpleasant. The judge’s instructions did not make that clear. Whilst the Court was by no means sure that the jury would not have convicted the woman had appropriate directions been given, the conviction was unsafe.