Complaints to a lawyer’s employer and professional regulator can amount to acts of stalking, the Court of Appeal has ruled in a case where a senior government lawyer was targeted.
In 2019, Sana Musharraf was convicted of one count of carrying out a course of conduct amounting to stalking causing serious alarm or distress, and one count of simple stalking.
Her target was solicitor Jason Whiston, a deputy director in the Government Legal Profession (formerly the Government Legal Service).
Ms Musharraf was sentenced to 33 months’ imprisonment on the first count with a concurrent term of two months on the second. Mr Recorder Balcombe also imposed a 10-year restraining order.
Ms Musharraf, now 38, had moved to the UK from Pakistan to study a masters in law and accounting at the London School of Economics, where Mr Whiston gave occasional lectures.
After one in October 2013, she approached him to ask some questions and, over the course of the next year, they met occasionally to discuss “academic matters”, Lord Justice William Davies recounted.
“However, they then developed a relationship which lasted for about two years before coming to an end in the middle of 2017. The nature of that relationship was in dispute.
“Much of the trial was taken up with the competing accounts of the relationship as given by Mr Whiston and the appellant. Whatever the precise position, during its currency the relationship was sexual.”
Between July 2017 and February 2018, Ms Musharraf sent Mr Whitson an “excessive number” of text messages, appeared at his home and office unannounced and allegations about him to others.
“The allegations were that Mr Whiston had raped and sexually assaulted her and had exploited her sexually. As well as to Mr Whiston’s friends and family, the appellant made the allegations to his employers and to the Solicitors Regulatory Authority.”
The second count related to five visits Ms Musharraf made to the home of Mr Whiston’s new partner.
Ms Musharraf’s defence was that she had acted as she did because Mr Whiston had taken advantage of his position – she was a vulnerable person given her lack of sexual experience and the absence of any friends or family in the UK to whom she could turn.
She was granted leave to appeal against conviction on the “relatively narrow” basis of whether it was wrong in law to leave to the jury the complaints made to Mr Whiston’s employer and regulator as possible acts of stalking.
The scheme of the Act consisted of four building blocks: harassment, stalking, causing serious distress and statutory defences.
On harassment, Davis LJ said: “We have no doubt that complaints made by [a defendant] to [a victim’s] employer and regulator of some kind of misconduct can amount to harassment so long as the complaints cause [the victim] distress.
“Whether true or untrue, complaints of that kind almost inevitably will cause the victim distress. We do not accept the submission that an act can only amount to harassment if it is unreasonable and that this is an element of the offence to be proved by the prosecution before consideration of any statutory defence.”
There was no simple definition of the term ‘stalking’ in the Act and the court said that, depending on the factual context, “we see no reason why that cannot encompass the sending of complaints to others about the person”.
Davis LJ explained: “The natural meaning of the term ‘stalking’ does not exclude such actions. The facts of this case provide a clear example of how they may amount to stalking i.e. when they represent a continuation and escalation of a pattern of behaviour…
“The jury were left to determine which acts were associated with stalking. That was the correct approach.”
The court also dismissed Ms Musharraf’s challenge to the directions the judge gave about the complaints.
When sentencing her, the judge found as a fact that the allegations were “false and malicious”, Davis LJ said. “That is a finding he was entitled to make having heard the evidence.”
Ms Musharraf also challenged the part of the restraining order preventing her from contacting the Government Legal Profession, Solicitors Regulation Authority, Bar Standards Board and London School of Economics.
She argued that the jury’s verdict did not necessarily mean they concluded her complaints of rape were false, a submission the Court of Appeal described as “unsustainable”.
“Therefore, the prohibition in that paragraph must be judged in the context of false and malicious allegations having been made against Mr Whiston. In that context some prohibition against contacting the named institutions was wholly reasonable and proportionate.”
The court only made a slight change so that Ms Musharraf could respond to any correspondence from the named organisations, provided that any such response was not copied or forwarded to any third party save for her lawyers.