In its reserved judgment in R v O’Neill [2016] EWCA Crim 92 the Court of Appeal (in the judgment of Lord Justice Gross) delivers guidance as to the correct judicial direction and the ingredient of “oppression” in an allegation that conduct is harassing required to render the conduct criminal.
The appeal against conviction for an offence of breach of a non-molestation order contrary to section 42A of the Family Law Act 1996 is successful.
Despite the fact that the Crown had been required by the trial judge’s directions to prove the absence of a reasonable excuse for the conduct [correctly it is submitted: Richards [2010] EWCA Crim 835 per Thomas LJ, as he then was], the Court accepted Philip Rule’s argument that this did not equate to the same thing as having to prove conduct was oppressive and thus criminal in the first place. Indeed, if deciding in the first place an act did amount to harassment prohibited by a non-molestation order issued by the family courts, it might be difficult to conceive of many reasonable excuses for harassing. However the starting-point ought to be that the tribunal (here a jury) considered whether or not the conduct was oppressive, such that it would then (and only then) call for a reasonable excuse. The Court ultimately accepts that the conviction cannot be regarded as safe in this case.
