Regina v Colohan: CACD 17 May 2001

The defendant appealed against his convictions for harassment. He said that since he suffered from schizophrenia, the test for whether his actions had been reasonable should be relaxed.
Held: The test of whether actions constituted harassment under the Act was an objective one – would a reasonable person think it amounted to harassment? Accordingly the mental condition of the defendant was irrelevant. The mental illness of a defendant was no defence. There was no need to apply to the hypothetical reasonable person the characteristics of the defendant.
Kennedy LJ said:
‘Mr. Butterfield’s principal short submission on behalf of the appellant is that in order to apply this test the hypothetical reasonable person referred to in section 1(2) must be endowed with the relevant characteristics of the accused and in particular with any recognisable mental disorder to which he is subject. In the present case the consequence of the submission, if correct, is that the appellant is to be judged by the standards of the hypothetical reasonable schizophrenic.
Mr. Butterfield’s associated secondary submission is that the jury ought to have been directed that it was open to them when considering the defence provided by subsection (1)(3)(c) to say that the appellant’s conduct was, in the particular circumstances of his illness, a reasonable one. Any construction other than that, say Mr. Butterfield, is simply unfair to an accused with a recognizable mental illness.
The question raised by these submissions is one of the proper construction of the Protection from Harassment Act 1997. As the first word of that title suggests, this is an Act whose purpose is significantly protective and preventative. The long title is ‘An Act to make provision for protecting persons from harassment and similar conduct.’
As well as making a course of conduct amounting to harassment an offence, the Act by section 3 provides civil remedies by way of damages for a breach of section 1 and by way of injunction to restrain an apprehended breach of it. Further, section 5 enables a criminal court, before whom a defendant has been convicted under section 2, to make a restraining order prohibiting him from doing anything specified. Such a restraining order is to be made for the purpose of protecting from harassment not only the victim of the offence but also any other person specified. As is well-known the Act was passed with the phenomenon of ‘stalking’ particularly, although not exclusively, in mind. The conduct at which the Act is aimed, and from which it seeks to provide protection, is particularly likely to be conduct pursued by those of obsessive or otherwise unusual psychological make-up and very frequently by those suffering from an identifiable mental illness. Schizophrenia is only one such condition which is obviously very likely to give rise to conduct of this sort.
We are satisfied that to give the Act the construction for which Mr. Butterfield contends would be to remove from its protection a very large number of victims and indeed to run the risk of significantly thwarting the purpose of the Act. If such a construction is correct it would prevent the conduct in question from being a breach of section 1 and thus exclude not only suitable punishment for the perpetrator, but also damages, and, more especially, an injunction or restraining order for the protection of the victim. We do not believe that Parliament can have meant the provisions in question to have the meaning fro which Mr. Butterfield contends. Moreover, as it seems to us, if Mr. Butterfield’s submissions were correct then subsection 1(2) would have been inserted unnecessarily into the Act.
We agree accordingly with the learned judge that except in so far as it requires the jury to consider the information actually in the possession of this defendant section 1(2) requires the jury to answer the question whether he ought to have known that what he was doing amounts to harassment by the objective test of what a reasonable person would think. Its words, we are satisfied, are abundantly clear.
As to section 1(3)(c) that, we are satisfied, poses even more clearly an objective test, namely whether the conduct is in the judgment of the jury reasonable. There is no warrant for attaching the word ‘reasonable’ or via the words ‘particular circumstances’ the standards or characteristics of the defendant himself.


Kennedy LJ VP, Curtis, Hughes JJ


Times 14-Jun-2001




Protection from Harassment Act 1997 1(2), 1(3)(c)


England and Wales

Cited by:

CitedHayes v Willoughby CA 13-Dec-2011
Harassment Occurs on the Result, not the Intention
The claimant said that over several years, the respondent had pursued him in many ways challenging his management of a company’s affairs. Complaints had been investigated by the insolvency service and by the police who had discovered nothing to . .
Lists of cited by and citing cases may be incomplete.

Crime, Torts – Other

Updated: 19 May 2022; Ref: scu.88418