Blackstones Guide to the Protection from Harassment Act 1997
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CHAPTER ONE BACKGROUND TO THE ACT 1.1 The emergence of the tort of harassment It is remarkable how quickly the law of harassment has emerged. Even before the Act it was clear that harassment had become a primary tort and was no longer subsumed under the torts of nuisance, trespass, or trespass to the person. This development is all the more remarkable bearing in mind the dicta of Sir Peter Gibson J in Khorasandjian v Bush [1993] 3 All ER 669, CA who, although giving a minority judgment stated that `there is no tort of harassment' (p.683 at H). This statement echoed the 1992 Law Commission report which stated that it did not wish to create `something approaching a new tort of harassment or molestation` [Law Com no: 207 para 3.8] The reluctance of the Law Commission to support the creation of a new tort of harassment is borne out by the following:- `We do not think it is appropriate that this jurisdiction (the proposed Family Law non-molestation order) should be available to resolve issues such as disputes between neighbours, harassment of tenants by landlords or cases of sexual harassment in the workplace. Here there is no domestic or family relationship to justify special remedies or procedures and resort should properly be had to the remedies provided under property and employment law' (Law Com no: 207 para 3.14) 1.2 The Court of Appeal Decision in Burris v Azadani The tort of harassment finally emerged in Burris v Azadani [1995] 4 ALL ER 802, CA on 27 July 1995. The lead judgment is that of Sir Thomas Bingham MR (as he then was) his dicta being as follows:- (a) nor, in the light of ... (previous) ... authority, can the view be upheld that there is no tort of harassment';[1995] 4 ALL ER 809 at B (b) ordinarily the victim will be adequately protected by an injunction which restrains the tort which has been or is likely to be committed, whether trespass to the person or to land, interference with goods, harassment, intimidation or as the case may be [1995] 4 ALL ER 811. Six principles emerged from his judgment. These are fundamental to a consideration of both the new statutory tort of harassment and the criminal offence of harassment, and are set out in Appendix A. To a considerable extent they reveal the different way in which civil courts and criminal courts approach the problem of harassment. Civil courts are concerned primarily with the protection of the victim and are mainly concerned with the imposition of injunctive relief. Interlocutory injunctions can be ordered on the establishment of an arguable cause of action and will be imposed "where it appears to the court to be just and convenient" (s. 37(1) Supreme Court Act 1981). It is submitted that a Plaintiff applying for an interlocutory injunction need satisfy a relatively low evidential test (on the civil burden of proof namely on a balance of probabilities) although it is clear that the interests of justice are paramount. Civil courts have power to restrain what would otherwise be lawful behaviour. Civil relief is awarded by balancing the interests and obligations of the respective parties. Thus the civil courts will adopt a pragmatic and common sense approach to the issue of harassment. Such an approach may be neither legalistic nor founded on conventional causes of action. Criminal courts however, only have power to convict for behaviour which is unlawful. Whilst it may be the rights of the victim are relevant, they are primarily concerned with sentencing the convicted offender. Consequently, if the criminal burden of proof is not discharged a defendant might escape scot free in circumstances where a civil court would have imposed stringent injunctive terms. Consequently criminal law is "conviction or nothing". 1.3 The Development of "Offences of Harassment" by the Court of Appeal Criminal Division in the summer of 1996 Rapid developments in the criminal law relating to harassment took place in the summer of 1996. The decision in R v Burstow [1996] TLR 30 July established the doctrine of psychological assault. This enables a defendant to be convicted of assault even though he or she may not have applied direct physical force. Consequently these offences can take in campaigns of non-physical harassment provided such campaigns cause psychiatric or psychological harm and impair a victim's health accordingly. In R v Ireland [1996] TLR 22 May it was held that a threatening telephone call or series of calls can constitute assault. Such calls have to place their victims in immediate fear for their safety with resulting psychological or psychiatric injury. In R v Johnston [1996] TLR 14 May it was held that hundreds of obscene telephone calls to at least 13 different women in the south Cumbria area was conduct which constituted a public nuisance. The importance of these decisions in relation to the general law of harassment cannot be overstated. The classic harasser often conducts a campaign of "passive" harassment seeking to ensure that he or she does not commit an overt act which might constitute an offence. Many of the ingredients of harassment involve misuse of telephone calls. Consequently the extension of the doctrine of assault to such behaviour, combined with the doctrine of criminal public nuisance was significant although academically controversial. Many lawyers considered that the meaning of `assault' was being extended in a wholly artificial way. Since the Act does not affect the existing law, these cases are still good law and similar prosecutions can still be mounted under them. For this reason the cases are summarised in Appendix B. 1.4 Recent Developments in the general Criminal Law concerned with "offences of harassment" In addition to the doctrines of psychological assault, telephone assault and criminal public nuisance, three other offences dealing with `harassment type behaviour' are particularly significant namely intentional harassment, obscene letters and parcels and malicious telephone calls. (a) The offence of intentional harassment was created by s.154 Criminal Justice and Public Order Act 1994, and now forms s.4(A) Public Order Act 1986 (see Appendix C). In order to secure a conviction for intentional harassment, the prosecution has to prove subjective intention on the part of the defendant. This has caused numerous difficulties because many alleged harassers are able to establish that they did not intend to harass. For example some defendants infatuated with a particular person have argued that they are the victims of unrequited love and therefore not guilty of intentionally harassing. In his speech introducing the Protection from Harassment Bill to the House of Commons on 17 December 1996 Michael Howard said : `we have not defined harassment itself. Harassment as a concept has been interpreted regularly by the courts since 1986'. Some 100 prosecutions under s.4A were successful in 1995 Hansard 17 December 1996 784. Indeed the failure of this offence was an important contributing factor in the government's decision to bring in the Act. The principal difference in the Act is that intention does not have to be proved and instead harassment is considered from the point of view of the reasonable person. The offence of sending obscene letters or parcels was created by s.1(1) Malicious Communications Act 1988. As many harassers indulge in sending obscene letters or parcels containing offensive material this section is an important part of the prosecution armoury and may form an alternative charge to a charge of harassment under the Act. The Offence of making malicious telephone calls was created by s.43(1) Telecommunications Act 1984. Telephone calpls which do not constitute assault or criminal public nuisance may be malicious, thereby grounding a charge under this section. The offence was originally punishable only with a fine but the maximum penalty was raised to 6 months imprisonment by s.92 Criminal Justice and Public Order Act 1994. The ordinary offences of harassment cannot now be viewed independently of either the general common law or of the existing criminal law. The Act has been drafted in the light of recent developments in the criminal law most of which are set out in Appendix C. Lawyers considering the offences of harassment should also consider offences concerned with criminal damage and excessive noise. All the relevant statutory offences involving harassment or fear are set out in Appendix D. 1.5 High Profile Acquittals in 1996 There were four significant acquittals in 1996, and a consideration of these cases formed part of the debate in Parliament when the Bill was being considered. These acquittals reveal some of the weaknesses in the existing criminal law which the Act seeks to remedy. The acquittals are as follows:- (a) In January 1996 Bernard Quinn was found not guilty of behaviour likely to cause a breach of the peace when he attempted to breach a security cordon placed around the Princess Royal. The decision was made by a stipendiary magistrate at Liverpool who clearly took the view that peaceful attempts to breach a security cordon did not constitute an offence. It is significant that Quinn was not bound over to keep the peace despite the fact that he has a strong reputation for being an infatuated "stalker" of the Princess Royal to whom he has written hundreds of letters and in respect of whom he apparently indulges in sexual fantasies. (b) In March 1996, Dr Klaus Wagner was found not guilty of similar behaviour and again was not bound over. He is a compulsive "stalker" of both the Queen and Diana, Princess of Wales. On the occasion in question, he was holding a placard outside Buckingham Palace with the words "The Queen is the Devil". Video footage made it clear that the crowd around him acted peacefully and entirely ignored him. Consequently his behaviour, however distasteful, was not likely to cause a breach of the peace. On the contrary, it provoked no response whatsoever. Much time was spent in Parliament debating whether any changes in the law were needed and it was suggested that charges of breach of the peace and bind over orders were sufficient to deal with harassers. The acquittals of Quinn and Wagner make it clear that the law on breach of the peace was inadequate and even if binding over orders had been made breach of such an order is only punishable with a fine and therefore would not constitute any form of deterent to a determined stalker. (c) In March 1996 Wilson was found not guilty of intentional harassment by Horseferry Road Magistrates Court despite the fact that he had perpetrated a course of infatuated behaviour against Charlotte Sell for many years. (d) In September 1996 Chambers was found not guilty of psychological assault despite the fact that his campaign of harassment against Margaret Bent involved, on one occasion, threatening her with a knife. He had constantly "stalked" her. He telephoned her up to ten times a day. He had sat outside her house with a machete.He had registered his car in her name and ensured that she received a string of parking tickets, followed by summonses and writs by bailiffs threatening to seize her property if fines were unpaid. The Judge ruled that there was insufficient evidence to prove intention, on his part, to cause psychological harm. It is not clear why the Judge did not allow the case to proceed on the charge of `simple' GBH (s.20 Offences Against the Persons Act 1861) which does not require evidence of intent. The acquittal of Chambers reveals the deficiencies in the restraining orders provided by s.5 of the Act which can only take effect on conviction. It is the opinion of the authors that any civil court hearing these facts would have imposed stringent injunctive terms on Chambers ordering him not to have any further contact with Margaret Bent. A summary of these high profile acquittals is set out at Appendix B. 1.6 Problems with the existing civil and criminal Law The Act seeks to remedy the absence of a power of arrest at common law and the inability of criminal courts to order the equivalent of civil injunctions. Solutions to these defects are only offered in relation to harassment as defined and provided for by the Act. Consequently the existing problems must not be ignored because practitioners will be concerned with them when considering alternative criminal offences or alternative torts. It is the opinion of the authors that civil defendants who wish to avoid being charged with breaching civil orders may offer undertakings which are arguably not injunctions for the purposes of s.3(6) of the Act and therefore breach of them would not constitute a criminal offence. Alternatively defendants might offer injunctions under other torts whether nuisance, trespass to the person or trespass and thereby once again avoid the provisions of s.3(6). Similarly criminal practitioners may be concerned with avoiding the jurisdiction of the criminal courts to make restraining orders under the Act and may therefore seek to offer pleas to the alternative offences set out in Appendix C in respect of which restraining orders cannot be made. 1.7 The Significance of the Act The Government appears to have a low expectation of the significance of the Act. In its discussion paper it stated `... it is anticipated that approximately 200 extra criminal cases a year will arise in (the criminal) jurisdiction, resulting in additional costs to the Courts, the Crown Prosecution Service and Legal Aid of £216,000 per annum.....' We do not share the government's low expectations regarding the Act. In our view, thousands of people perpetrate harassment each year or consider that they are victims of harassment. It is probable therefore that the new offences of harassment will form the subject of many more criminal proceedings than the government contemplates. In his speech to the House of Lords on 24 January 1997, the Lord Chancellor stated that `.. there is a great deal to be said for building on civil sanction-type provisions ....' Hansard 24 January 1997 p. 941. This suggests that the government's intention is for the offence to be "civil led" i.e., victims will initally be expected to obtain civil injunctions under s.3 of the Act. The police and the Crown Prosecution Service would then only commence criminal proceedings if that injunction is breached under s. 3(6). The enforcement of civil injunctions by criminal proceedings may have jurisprudential difficulties if only in relation to the burden of proof. The civil burden of proof is on a "balance of probability" (more likely than not) and the criminal burden is "beyond all reasonable doubt". A person can presently be subjected to a civil injunction on a relatively low evidential test "in the interests of justice". He or she may not have committed any unlawful act. Yet breaching that injunction would be a criminal offence, even though otherwise no offence has been committed. This issue was raised by Mr Andrew Bennett MP in debate in the House of Commons on 17 December 1996. His remarks are pertinent and are quoted from [1996] Hansard 17 December 847 as follows: `I turn to the construction of clause 3, which begins with a civil remedy and builds a criminal offence on to that civil remedy. It is fairly unusual in this country for legislation to muddle criminal and civil court procedures, and we think that there are good reasons for keeping the two separate. The civil courts must balance the differing and conflicting interests of the two parties to the case. They have to decide between the two parties on the question of fairness. That is often extremely difficult, because the difference between the measure of proof on one side and the other may be fairly slim. The alternative approach of the criminal courts is that someone must be found guilty beyond all reasonable doubt. I am worried about the fact that the issue will first be dealt with by civil proceedings, and if someone is in breach of those proceedings, instead of ensuring that the matter is taken up by the court as a contempt of court, we are creating a criminal offence. If we make a breach of an action in a civil court a criminal offence, we must make it clear that the same tests should be applied to the civil proceedings as would be applied in the criminal court. The standard of proof in the civil court should not be weaker than that applied in the criminal court.` If, as he suggests the civil and criminal burdens of proof should be the same, in relation to harassment, then many of the principles in Burris v Azadani may not be applied by civil courts considering a statutory tort under the new Act. This could lead to a narrowing of the grounds both factual and evidential, upon which civil courts will granpt relief for harassment. It seems unfortunate that the Government should have muddied the waters in this way by mingling the civil and criminal law. The civil contempt procedure under the Act is further complicated by the absence of a power of arrest to minor domestic violence jurisdictions. What is proposed is that instead plaintiffs should make an ex parte application to the court for a warrant of arrest to be issued against the defendant. Both authors looking at s.3(6) from their respective civil and criminal experience consider that the provisions of s.3 will be impractical and civil practitioners may be well advised to deal with civil harassment cases in accordance with the normal civil procedures. 1.8 Progress of the Bill The Bill passed swiftly through the Houses of Parliament. It was first published on 6 December 1996, and it completed its second reading and the committee stages in the House of Commons in two days on 17 and 18 December 1996. It had its second reading in the House of Lords on 24 January 1997. Although technically the third reading took place on 19 March 1997, it was never formally reconsidered by the House of Commons because of the calling of the general election. The Act received Royal assent on 21 March. Under s.15 it shall be brought into force by statutory instruments published either by the Home Secretary or the Lord Chancellor. A timetable of the progress of the Bill is set out below:- The Protection from Harassment Act 1997 6 December 1996 Publication of Bill - First reading in the House of Commons 17 December 1996 Second reading in the House of Commons - Committee stage in Commons 18 December 1996 Completed committee stage in House of Commons 19 March 1997 Third reading in the House of Commons 21 March 1997 Royal Assent |