High Court rejects appeal by couple jailed for harassing judge

Emails: Couple sent documents to judge’s personal address

The High Court has rejected an appeal by a couple jailed for harassing the family judge who heard their “long and contentious litigation” over an adoption.

Lord Justice Simon said Gary Hilson and Tracy McCarthy intended to show Her Honour Judge Carol Atkinson “that they had extensive knowledge about parts of her life which were separate from her work as a judge”.

He continued: “Their conduct was designed to harass and intimidate her in relation to her public duty to the prejudice of the proper administration of justice.”

Hilson v McCarthy [2019] EWHC 1110 (Admin) – dating from April but only just published – was an appeal against a 16-week jail sentence imposed by the Crown Court in Warwick after Mr Hilson and Ms McCarthy had been found guilty of harassment.

The couple were domestic partners who have been involved in what Simon LJ described as “long and contentious litigation in the family courts” before HHJ Atkinson, the designated family judge for East London and a deputy High Court judge.

They were convicted on the basis of four incidents of harassment, and at the trial, the judge – who gave evidence from behind a screen – said she installed a panic button and CCTV in her home as a result of them.

The couple sent documents relating to their case to her personal email address the day before a hearing in September 2017, and using her married name, which was different to her name as a judge.

They discovered her email address by looking back through four years of activity on the judge’s Twitter account, where they found a tweet in which she gave it to a friend.

Simon LJ said: “The judge explained in her evidence that this had been a mistake as she thought that she had been messaging the friend directly at the time.”

The Crown Court found that after two years of litigation, much of it in person, it would have been “absolutely clear” to the defendants that documents should be sent to the court email address.

The email did not contain any material capable of amounting to harassment, but Simon LJ rejected the argument on appeal that the mere sending of an email to a personal address could not amount to harassment.

“One cannot separate the act of sending the email from the intent, the effect and the overall context in which it occurred,” he said.

“The judge’s personal address was an element of her private life, quite separate from her public life as a judge.

“As the Crown Court found, the only possible reason for sending the email to her personal email address, which the appellants had gone to considerable trouble to find, was to let her know that they knew her married name and that they had her email address.

“In our view, seen in its proper context, this incident was plainly capable of amounting to conduct which could properly be regarded as an element in a course of conduct amounting to harassment.”

The couple also made comments to court staff that they knew the judge’s home address, and during the hearing mentioned where her daughter went to swimming lessons and that the judge’s husband took her there.

As they left court, the couple wished the judge a happy birthday for the specific date and later posted a birthday card to her home address that included more personal information.

The Crown Court said it was sure they were well aware that she would find this “alarming and distressing”, as she testified she did.

Simon LJ rejected the argument that once personal information about the judge was in the public domain through posts she made on social media in her private capacity, she lost “the right not to be harassed” by the misuse of it.

He said counsel for the pair had cited “no principle of law” which supported the proposition that mentioning publicly available information was incapable of amounting to harassment.

“That is because there is no such general principle. The context is all-important.

“To give one example, the contents of full electoral register can be made available to any member of the public who wishes to consult it, but it does not follow that to tell someone that they know where they live cannot in its proper context constitute conduct which may amount to harassment.

“Nor does the giving out of information necessarily involve an implicit consent for the use of the information for the purpose of harassment. People do not put information into the public domain so that it can be used against them in this way.”

Mrs Justice Farbey contributed to the judgment.

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