Defendants lose appeal over convictions for harassing Family Court judge

Two people who harassed a Family Court judge they had been parties to proceedings before have lost their appeal against being jailed for 16 weeks.

Simon LJ, who heard the case in the Administrative Court with Mrs Justice Farbey, said there had been no error of law by a Crown Court in the convictions of Gary Hilson and Tracy McCarthy.

The couple had been involved in lengthy litigation heard by HHJ Atkinson, the designated Family Court judge for east London.

They were charged with harassing the judge by sending an email to her private address using her married name, telling court staff that they knew the judge’s street address and stating in court that they knew the movement of the judge’s husband and daughter.

They also sent the judge a birthday card with a message that read: “Keep up the good work stealing for profit. Don't drink too much raspberry gin and stagger back to Sarf, London. Love Tony and Cheri. P.S. Send my regards to Christopher.”

A video was uploaded to Mr Hilson's Facebook account in which derogatory remarks were made about HHJ Atkinson. This was notified to court staff, who watched it and told the judge of its content.

The crown court ruled that apart from the video - which the two did not necessarily know the judge would see - the incidents amounted to harassment as they were all intended to show the judge that the couple had extensive knowledge of her life, and “amounted to a course of conduct which was unacceptable and oppressive such that it should and did sustain criminal liability”.

Mr Hinton and Ms McCarthy claimed that the use of the private email address and their comments in court were not capable of amounting to harassment.

Refusing their appeal in Hilson v McCarthy [2019] EWHC 1110 (Admin), Simon LJ said: “One cannot separate the act of sending the email from the intent, the effect and the overall context in which it occurred.

“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 comments in court were “intended to let the judge know that the appellants were aware of the domestic arrangements she made as part of her private life” and was “plainly capable of amounting to an element in a course of conduct amounting to harassment”, Simon LJ said.

“It was oppressive and objectionable and it went beyond conduct which was merely unattractive and unreasonable.”

Lord Justice Simon continued: "First, in examining the nature of the appellant's conduct, the Crown Court was entitled to take into account that it was directed against a judge performing an important public duty. The appellants had been parties to proceedings before the Judge for about two years. The proceedings had concerned the adoption of children and were in their nature sensitive. The appellants intended to show the judge that they had extensive knowledge about parts of her life which were separate from her work as a judge. Their conduct was designed to harass and intimidate her in relation to her public duty to the prejudice of the proper administration of justice. The Crown Court was undoubtedly entitled to conclude that the gravity of the misconduct was of an order that satisfied the Majrowski test.

"Second, although this case has focused on the public duty discharged by a judge, it might have been any other official carrying out a public duty, or indeed, any other citizen who is entitled to be protected from harassment by the operation of the criminal law."

He dismissed their appeal, finding no legal error by the Crown Court.

Mark Smulian