Hilson v McCarthy: Harassment of a Family Court Judge
The Divisional Court found Mr Hilson and Ms McCarthy (“the Appellants”) guilty of harassing Lady Justice Atkinson (“the Judge”) – The Family court Judge in East London prior and during their lengthy trial. They were sentenced to 16 weeks imprisonment pursuant to s2(1) & (2) Protection from Harassment Act 1997. The Harassment, occurring between 14 September to the 2 October 2017, satisfied the requirements for criminal harassment (Majrowski v Guy’s and St Thomas’ NHS Trust  UKHL 34).
Firstly, on 13 September, multiple emails were sent to members of the public with an interest/potential interest in their trial, two of which were sent to the Judges’ personal email address, using her married name (not used in her professional capacity as a Judge).
Secondly, on the way into court, the security staff overheard the appellants discussing knowledge of the Judge’s home address.
Thirdly, the two litigants in person inappropriately hinted towards aspects of the Judge’s personal life, including a happy birthday wish as they exited the court room and a swim classes with her children.
Fourthly, the Judge received a birthday card saying “keep to the good work stealing for profit. Don’t drink too much raspberry gin and stagger back to Staf, London…”.
Lastly, a live stream was uploaded to facebook on 2 October by the appellants which included derogatory statements about the Judge and admitted to making her aware they “had information on her” during the trial.
On appeal to the Crown Court, Judge Bertodano, Lady Thrift and Mr Fox found the two appellants to be guilty on the grounds:
- That the remarks regarding her home address constituted a threat.
- That it would be clear to any reasonable person that a threat made within a court building would be likely to be reported to the Judge, and act accordingly as a threat.
- That personal information was disclosed for the purpose of intimidation, making the judge aware they knew the whereabouts of her children and other personal information. The fact this information was publicly available on a twitter account was disregarded. Proof their intention was provided in the Facebook live stream.
- That reference made to ‘Raspberry Gin’ in the birthday card, and additionally mentioned in the Facebook video, was too specific to be disputed and sent by any other litigants with a grudge.
Arguments on Appeal
An appeal on the grounds that an error of law had been made and not all incidents amounted to harassment. Counsel for the Appellants, Mr Pritchard-Jones, directed the court to the case of C v The Crown Prosecution Service  EWCH 148, whereby Thomas LJ drew a distinction between unattractive or unreasonable conduct, and conduct that amounts to harassment being a more onerous requirement to satisfy.
It was submitted that the birthday card and the personal emails sent prior to the trial did not amount to harassment. It was argued that everyone receives unsolicited emails, and as such cannot amount to harassment. Additionally, it was argued that when the Judge put personal information on Twitter, (the public domain) her right to complain was removed if someone repeated that information back to her.
Mr Ratliff, Counsel for the Prosecution, responded by submitting that it was not necessary to prove each event amounted to harassment. The parliamentary focus was on the “course of conduct” as a whole and not specific actions in isolation.
Lord Justice Simon dismissed the appeal, finding that “there was no error of law”. The unprecedented submission that once personal data entered the public domain the right to complain was lost, failed in the eyes of court. It was found that the Judges personal and professional life were separate, and therefore the inappropriate timing lead the court to believe the sole intention was to harass the Judge.
Additionally, it was concluded that the personal email address of the Judge was a part of her private life and in any event was inappropriate to contact her via this channel of communication. The only reason that emails were sent via this channel was to make the Judge aware they knew her married name and other personal information.
The court has a wide discretion to interpret events and actions of the accused, taking into account all the circumstances. The context and intention of the suspects will be considered by the court in determining their culpability. Although emails and inappropriate comments may not amount to harassment when considered in isolation, they may when looking at other related offences by the accused.
In addition, it demonstrated the courts unwillingness to accept that once personal data is placed in the public domain, all rights to it are lost and others may use it in a vindictive and intimidating way. Once more, the context of the information and the way it is used must be considered by the court.