Blackstones Guide to the Protection from Harassment Act 1997
(Chapter 2 )

This file is copyright Neil Addison and Timothy Lawson-Cruttenden. It can be downloaded and reprinted for personal use but if reproduced in whole or in part the source must be acknowledged



CHAPTER TWO

CRIMINAL HARASSMENT (ss1 & 2)

2.1 Requirements of the Offence


When the Protection from Harassment Billl was introduced into Parliament its overt purpose was simply to deal with the highly publicised problem of stalking. The Act however is worded so as to cover a far wider range of behaviour. The offence of criminal Harassment created by s2 of the Act has the potential to become a widely used charge covering a large range of situations involving public disorder, conflict and dispute. Deciding what is and is not acceptable behaviour and whether particular incidents are trivial or significant lies at the heart of day to day policing and is also the essence of this Act. When it introduced the Act the Government estimated indicated that there would only be 200 extra prosecutions per year brought because of it. That could well be a gross underestimate.

2.2

The offence of criminal harassment is created by a combination of ss1 and 2
's1(1) A person must not pursue a course of conduct
(a) which amounts to harassment of another and
(b) which he knows or ought to know amounts to harassment of the other'
's2(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence'
Under s7(4) 'conduct' includes speech.

2.3

Criminal harassment is a summary only offence triable in the magistrates court and carrying a possible sentence of up to 6 months imprisonment and/or a fine not exceeding level 5 on the standard scale (£5000). Under s2(3) police officers are given the power to arrest without warrant anyone reasonably suspected of having committed the offence. In addition following conviction a magistrates court can make a restraining order breach of which carries a potential sentence of 5 years imprisonment. Restraining orders are considered in more detail in Chapter 5 but the possibility of a restraining order being made following conviction for the offence of criminal harassment gives this offence a significant potential . Low level, but repetitious, socially unacceptable behaviour could come to dealt with by the Courts far more severely than was possible before the Act. Whether that is desirable or not only time will tell.

2.4 Relevance of Civil Cases

Because the definition in s1 applies to both the offence of criminal harassment and the civil tort, cases involving the act in the civil courts will be as relevant as cases in the criminal courts in defining the offence of criminal harassment. There will of course still be the normal difference in the standard of proof between the civil and criminal courts with criminal harassment needing to be proved beyond reasonable doubt whilst the civil tort will only need to be proved on the balance of probabilities. However any decisions of the Court of Appeal (Civil Division) regarding the tort of harassment created by s3 of the Act will be binding on any criminal courts considering the offence of criminal harassment..

2.5 Elements of the offence


To obtain a conviction for criminal harassment the prosecution will need to prove beyond reasonable doubt the three specific elements of harassment laid out in s1(1). The accused must pursue a course of conduct, the course of conduct must amount to harassment of another person and the accused must know or ought to know that the course of conduct amounted to harassment.

2.6 Course of Conduct


Course of conduct is defined in s7(3) as meaning "conduct on at least two occasions" which makes criminal harassment an unusual charge. Normally criminal cases particularly in the magistrates courts deal with one incident but for the offence of criminal harassment to be proved the court will have to be satisfied that the conduct occurred on at least two occasions. Even though the course of conduct must involve two incidents there is no requirement that the iincidents have to be the same each time. For example a threat to steal property on a Monday followed by the breaking of a window on the Wednesday could constitute a course of conduct even though the conduct is different on each

2.7 Other Offences


Appendix C details a number of existing criminal offences involving behaviour which is harassing in one way or another but most criminal offences by their very nature cause harassment alarm or distress to the victim of the crime. Sinnce the offence of criminal harassment will involve conduct on at least two occasions problems will arise where the conduct complained of constitutes an identifiable criminal offence on each occasion. For example if A shouts obscenities at B one evening he commits an offence contrary to s5 Public Order Act 1986. If the behaviour is repeated the next evening then A has committed two offences contrary to s5 of the public order act and has also pursued a course of conduct contrary to s2 of the protection from harassment act. Theoretically therefore Ae could be charged with the two offences contrary to the public order act or with one offence of criminal harassment or with all three offences. There is no guidance in the Act as to which approach will be acceptable or preferred.

2.8

The problem however is not completely unique. A Burglar who goes to a house with burglary tools, breaks a window and burgles the house commits the separate offences of Going Equipped, Criminal Damage and Burglary but in practice will only be charged with the one offence of burglary which is considered to subsume the other offences. The same logic is likely to apply in cases of criminal harassment and therefore it is unlikely that the courts will permit offenders to be tried for both criminal harassment and also the separate offences which constitute the alleged course of conduct.

2.9 Choice between Harassment and other Charges

Where police have charged both criminal harassment and individual offences it is likely that the prosecution will be required to elect whether they wish to deal with individual incidents by separate charges or whether they wish to lump them together in one charge of criminal harassment. In many respect the one charge of criminal harassment would be the better choice because the victim will only have to give evidence once and if the defendant is convicted the court will be able to make a restraining order preventing future offending. However if the evidence is weak on one of the two alleged incidents then on a charge of criminal harassment the prosecution will face the danger that the defendant will have to be acquitted because only one of the two incidents can be proved. Prosecutors will need to make careful decisions as to which choice to make in these cases whilst defence lawyers will have to be equally careful to ensure that the prosecution are obliged to make a choice and are not permitted to have 'two bites of the cherry' by proceeding on both criminal harassment and separate charges.

2.10

Another possibility that Prosecutors may be attracted to would be to charge the first incident as a substantive offence and to charge criminal harassment after the second incident with the intention of having the trial for the first incident held before the trial for criminal harassment. That would then allow them in the criminal harassment trial to prove the first incident by producing a certificate of conviction under ss73 and 74 Police and Criminal Evidence Act 1984 and they would only have to call evidence to establish the facts of the second incident. Such an approach is however likely to be regarded by the courts as an abuse of process. In R v Forest of Dean Justices ex parte Farley [1990] RTR 288 the defendant was charged with drink driving and with dangerous driving. The prosecution wished to deal with the trial for drink driving first with the intention of then using the drink driving conviction as evidence in the dangerous driving trial. The Divisional Court decided that tactic amounted to an abuse and the prosecution should proceed with the more serious trial first.

2.11 Relevance of Previous Convictions

More difficult problems would arise if a defendant has already been convicted of an earlier offence before the second incident occurs. It is far from clear whether the earlier conviction could be used as evidence in a criminal harassment trial. On behalf of the defendant it could be argued that since the defendant been already been dealt with for the earlier offence allowing it to be used to prove criminal harassment would in effect mean the defendnat being punished twice for the same act The contrary argument is that to prohibit the evidence of the earlier offence would frustrate the intent of an act which was specifically passed in order to deal with behaviour on more than one occasion. One possible solution to this problem would be to allow the prosecution to put forward evidence of the facts of the earlier incident without the court being told that the defendant has already been convicted in relation to that earlier incident. That would permit the prosecution to establish the necessary course of conduct but would avoid the court being prejudiced by knowing that the defendant has a previous conviction.

2.12

If the Defendant was cautioned rather than charged on the earlier occasion then the situation is even more complicated. A caution is a written admission of guilt but unlike a conviction there is no statutory provision allowing a caution to be proved by production of a certificate. It is likely that in any such case the courts will not allow the prosecution to produce the caution as evidence of the first incident and will insist that both incidents be specifically proved

2.13 Time between Incidents

Merely because there have been two incidents involving the same defendant and the same victim that does not of itself necessarily prove that there has been a course of conduct. The distance in time between the two incidents is relevant. If a window is broken and another a few nights later that would undoubtedly be a course of conduct but what if the second window is broken six months or a year later?. Clearly the longer the length of time between incidents the smaller the chance that they will constitute a course of conduct but it can be argued that even if the incidents are separated by a year they can still constitute a course of conduct. For example an Anti Semite who shouts obscenities outside a Synagogue every Passover can clearly be said to be pursuing a course of conduct even though there is a period of a year between each incident.

2.14

At the other extreme if there is only a short period of time between the two incidents they could be regarded as a course of conduct or alternatively could be regarded as in reality just one incident. For example an argument might occure between two neighbours where neighbour A shouts and swears at neighbour B, leaves and then five minutes later returns and starts shouting and swearing at B again. If this is regarded as one continuing incident then it merely constitutes an offence contrary to s5 public order act 1986 and is only punishable with a fine. If however it is regarded as two incidents then it could constitute a course of conduct and so be punishable with up to 6 months imprisonment. The difference is therefore significant and defence lawyers in such a case would undoubtedly argue strongly that it should be regarded as one continuing incident..

2.15

In looking for guidance on deciding whether particular actions constitute a course of conduct the Courts may try to draw analogies with r9 Indictment Rules 1971. This deals with joinder of different charges in one indictment where the charges constitute 'part of a series of offences of the same or a similar character'. In Ludlow v Metropolitan Police Commissioner [1970] 2 WLR 521 the House of Lords decided that both the legal and factual characteristics of separate incidents was relevant in determining their similarity and that for separate offences to be described as a series there had to be some nexus between them ie 'some feature of similarity which in all the circumstances of the case enables the offences to be described as a series'. It is likely that courts will look for similar 'features of similarity' in deciding whether particular incidents constitute a course of conduct. .

2.16 Harassment of Another


Sections 1 & 2 collectively make it an offence to pursue a course of conduct which amounts to harassment of another. Under s7(2)
'7(2) References to harassing a person include alarming the person or causing the person distress'
harassment alarm and distress are not defined in the Act and so will need to be given their ordinary dictionary meanings but they are words used in ss4A and 5 Public Order Act 1986 and therefore cases involving those offences will be relevant in interpreting the Act.

2.17

Sections 4A and 5 of the public order act require harassment alarm or distress to be caused by the use of threatening, abusive or insulting words or behaviour or disorderly behaviour or by the display of any writing sign or other visible representation which is threatening abusive or insulting. Under the protection from harassment act there is no such requirement. This arises because of the fact that the initial impetus behind the act was to deal with stalkers who invariably had no intention of threatening abusing or insulting those they were stalking. Someone who stands every day outside a house with a notice saying 'I love you' or who sends red roses to a persons place of work every day is certainly not being threatening, abusive or insulting but could still be causing harassment alarm or distress..

2.18 Defining Harassment

In dealing with cases under ss4A and 5 of the public order act the courts have been reluctant to define with any precision precisely what behaviour can or cannot constitute harassment. In Lodge v Director of Public Prosecutions 1988 Times 26th October the Divisional Court held that whether someone, in that case a Police officer, had been caused harassment alarm or distress was a question of fact to be determined by the magistrates and unless the magistrates decision was totally perverse the High Court would not interfere. The lack of any precise definition or examples in the act combined with this laissez faire attitude on the part of the high court means that the offence of criminal harassment is potentially extremely wide ranging with regard to the situations in which it will apply

2.19

Parking a car every day outside a neighbours driveway as he is about to go to work could be harassment as could starting up a lawn mower every time neighbours go out to sunbathe. In Northern Ireland an orange band playing 'The Protestant Boys' outside a Catholic church every Sunday could constitute harassment as could standing with an Israeli flag outside a Mosque.

2.20

In Director of Public Prosecutions v Orum 1988 3AER 449 the Divisional Court held that it was possible, though unlikely, that individual Police officers could be harassed, alarmed or distressed by words used toward them though as the court stated in most cases 'words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save boredom'.

2.21

Almost any form of activity which annoys another person could technically be defined as Harassment. Shouting 'hello fatty' every time your neighbour comes in sight or 'here comes useless' every time a fellow employee enters the office are obvious examples but there are many possible acts which could have the effect of causing harassment.

2.22

Sexual harassment for example could include commenting on the length of a colleagues skirt or putting 'pinups', on a notice board. Racial harassment could be caused not just by overt racial insults but by having cartoons on the wall dealing with missionaries in cannibal pots. Often it is not the overt act itself which is harassing but the known, but unprovable, motives of the person involved. Complaints are likely to be met by the argument that the person complaining 'cannot take a joke'.

2.23

It is of course true that certain people are unusually sensitive and have a tendency to overreact to the normal irritations of day to day life. There is a danger therefore that the criminal courts could find themselves being asked to adjudicate on neighbour disputes where in reality one or both parties simply needs to grow up.

2.24 Alarm and Distress


The fact that under s7(2) harassment includes alarm and distress should not be overlooked. There are situations where persons could be alarmed or distressed without themselves being the direct target of the course of conduct

2.25

In Lodge v Director of Public Prosecutions [1988] Times 26th October for example the Divisional Court held that a police officer could feel alarm over the safety of another person, in that case a child. The same principle must logically apply to the Act. For example a man might be in the habit of regularly hanging around near a school giving sweets to the children or following them home. He would not be causing harassment to the children and even if he were nobody would want to call them as witnesses in a court. However his behaviour may cause alarm to the headmaster of the school, or to certain parents or the local community police officer. If he is asked to stop what he is doing and he continues then he has engaged in a course of conduct which has caused alarm and he can be charged with criminal harassment

2.26

If an animal rights protester distributed or displayed to the public particularly graphic and bloody pictures of animals killed in hunts or used in experiments then members of the public could be caused distress. If this distress was caused more than once then arguably the protester would be guilty of criminal harassment. It is likely that the courts will attempt to limit the scope of ss1 and 2 by insisting that the course of conduct must be directed towards a specified person or persons rather than being 'at large'. Such an interpretation would certainly be in line with the intentions of parliament when the act was passed

2.27 Defences to a Charge of Criminal Harassment


A specific purpose of the Act was to deal with what were perceived to be inadequacies in the existing law. The main problem was that almost all criminal offences required some evidence of intent on behalf of the alleged offender. The solution adopted in s1(2) of the Act was to consider harassment objectively in terms of what actually happened rather than subjectively in terms of what the offender intended

2.28

's1(2) For the purposes of this section the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other'

2.29

The idea of the 'reasonable man' (today the reasonable person) is an old one in English law but what exactly will be considered reasonable is almost impossible to predict with any certainty. What is considered 'reasonable' can differ from place to place and person to person. For example a football supporter who shouts obscenities at the referee during a premier league football match may be considered acceptable but similar remarks would be completely unacceptable if they were shouted at the referee during a primary school football competition. A car with a loud stereo system may be ignored on the M6 but cause immense annoyance in a quiet country village. Everything will depend on the place, the time and the people involved.

2.30

Under s1(3) it is a defence to a charge of criminal harassment for the accused to show
'(a) that it was pursued for the purpose of preventing or detecting crime
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable

2.31

It is noticeable that there is no defence of being engaged in a lawful occupation such as a journalist, a private detective or, incidentally, a lawyer cross examining a witness. It is likely that the main persons who will be protected by this particular defence will be police officers and bailiffs who will be carrying out their lawful duties. Anyone else will have to pprove that their actions were reasonable

2.32

When the government was undertaking its consultation process prior to the Bill being published fears were expressed that certain officials, such as MI5 agents engaged in intelligence activities could fall foul of any stalking law. For that reason s12 of the act provides that where a government minister certifies that any actions undertaken by a specified person related to
12(1) (a) national security
(b) the economic well being of the United Kingdom or
(c) the prevention or detection of serious crime
and were done on behalf of the crown
then the certificate is conclusive evidence that the act does not apply. In practice the government are not likely to want to publicise any incident where a certificate might be appropriate. Any criminal charges in such a case are more likely to be quietly dropped by the crown prosecution service and in cases involving a private prosecution the prosecution is likely to be taken over by the CPS and then discontinued

Types of Criminal Harassment

2.33 Stalkers

Despite the fact that stalking provided the impetus for the Act there is no definition of stalking contained within it. In the private members bill introduced in May 1996 by Janet Anderson MP stalking was defined as
'engaging in a course of conduct whereby a person
(a) follow, loiters near, watches or approaches another person
(b) telephones (which for the avoidance of doubt shall include telephoning a person but remaining silent during the call), contacts by other electronic means or otherwise contacts another person
(c) loiters near, watches, approaches or enters a place where another person lives works or repeatedly visits
(d) interferes with property which does not belong to him and is in the possession of another person
(e) leaves offensive, unwarranted or unsolicited material at a place where another person lives works or regularly visits
(f) gives offensive unwarranted or unsolicited material to another person'

Section s264 of the Canadian Criminal Code defines criminal harassment (stalking) as
'(a) repeatedly following from place to place the other person or anyone known to them
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them
(c) besetting or watching the dwelling house or place where the other person or anyone known to them resides works carries on business or happens to be or
(d) engaging in threatening conduct directed at the other person or any member of their family'

It is almost certain that any of the above types of behaviour would be regarded as criminal harassment under the act and certainly it was that type of persistent stalking behaviour that Parliament had in mind when the act was passed.

2.35 Effect on Journalists


Journalists and Press photographers could easily find themselves accused of criminal harassment since the nature of their work will often involving attempting to speak to or to take photographs of persons who do not desire their attentions. It is not uncommon for houses of people in the news to suddenly find that their home is in effect under siege by massed ranks of reporters and cameramen. Such behaviour can quite often cause harassment and even if the police and CPS decide not to press charges there is nothing in the act to prevent private prosecutions.

2.36

It is difficult to predict just how the courts will react when journalists and photographers appear before them charged with criminal harassment but it will certainly happen at some point. It is probable that in such cases the courts will adopt the legitimate interests test laid down by the Court of Appeal in the civil case of Burris v Azadani [1995] Times August 9th and will attempt to balance the legitimate public interest in a free press with the right of individuals not to be harassed.

2.37

An important element in making such a judgement may be whether the person allegedly being harassed has in some way brought the press interest on themselves. That has certainly been the approach adopted by the American courts in considering press freedom and the First Amendment to the United States Constitution. A government minister who is discovered to be having an affair may therefore be fair game for massed photographers but the relatives of someone who has been murdered will not. However what if the person being investigated is a suspected, but not proved, fraudster?. Investigative journalists such as Roger Cook often have to lie in wait for such people who have good reasons to be reluctant to be interviewed about their business activities. Robert Maxwell was notoriously quick to issue libel writs in order to prevent scrutiny of his activities and it could well be that other lesser fraudsters could be equally quick to take out private prosecutions for harassment in order to prevent journalistic investigation of their activities.

2.38 Protesters


It is possible that the act could be used to stifle lawful protests. Anti blood sports activists regularly attend fox hunts and attempt to disrupt them by blocking roads, blowing horns etc. Fox hunters could claim that these actions cause them Harassment and in a rural area Fox hunters are likely to have the support of the local police and magistrates. If convicted of criminal harassment the anti blood sports protesters could then be subjected to a restraining order banning them from going near another hunt. Any such attempt to use the act in this way would almost certainly be in breach of article 11 of the European Convention of Human Rights but is possible

2.39

Anti Roads protests are becoming more frequent and usually involve protesters attempting to prevent workmen cutting down trees, using earth moving equipment etc. This could be considered to be harassment of the workmen rendering the protesters liable to arrest and prosecution

2.40 Noise Harassment


Noise is increasingly being recognised as a social problem and can be prosecuted under the Environmental Protection Act 1990 however the procedures for prosecution are complex and slow. Noise is often a particular problem in neighbour disputes with music turned up loud or playing late into the night. Houses that have large numbers of dogs or dogs which howl or whine incessantly can cause immense mental distress as can neighbours who are incessantly engaged in noisy do it yourself house repairs or car repairs involving revving of engines.

2.41

Noise pollution is technically a local authority rather than a police responsibility but frequently the police become involved when the neighbour dispute gets out of hand. It is quite possible that the police will be tempted to lay charges of criminal harassment in such cases or neighbourhood groups may commence private prosecutions

2.42 Northern Ireland


When the protection from harassment bill was first introduced into Parliament it did not cover Northern Ireland but s13 was added to the bill during the committee stage and allows the act to be extended to Northern Ireland. This was abviously done on the basis stalking should be criminalised throughout the entire United Kingdom. What does not seem to have been considered however was the possibility that the definition of harassment in the Act could have particular significance in relation to the sectarian divide in Ulster.

2.43

Over the last few years the subject of Orange Lodge marches through predominantly Catholic areas has become an increasingly bitter issue in Northern Ireland politics with a particularly dangerous stand off between marchers and police in the town of Drumcree. It could be argued that marchers going annually through an area where they are not welcome are engaged in a course of conduct which they know or ought to know is causing harassment, alarm or distress to the inhabitants of that area. In those circumstances the police, or private individuals could bring charges of criminal harassment against several of the principal marchers and attempt to obtain restraining orders preventing them from marching through the neighbourhood again. It is doubtful whether any such approach would do anything to help the situation in Northern Ireland but it is a possibiility which cannot be ignored.