Blackstones Guide to the Protection from Harassment Act 1997
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BREACH OF AN HARASSMENT INJUNCTION
When stalking became a political and media issue in 1996, it quickly became apparent that one of the main perceived inadequacies in the law was, was the inability of the police to arrest stalkers who had breached civil court injunctions ordering them not to contact or go near their victim again. The civil courts were showing a willingness to grant injunctions prohibiting harassing or stalking behaviour but the obsessive mentality of many stalkers meant that they frequently breached such injunctions causing further stress and harm to their victims.
When the police were contacted by the victims of such stalking the officers involved felt understandably frustrated at their own inability to take any action to enforce the injunction, whilst the victims regarded the lack of police enforcement as in effect leaving them unprotected by the law so making the injunction meaningless. Breach of a civil court injunction is of course punishable with imprisonment as a contempt of court but police officers have no general power to arrest for breach of injunctions. The civil courts contempt procedure is somewhat complex and slow and victims who did not qualify for legal aid were having to bear the costs personally.
In the consultation process undertaken by the Home 0ffice prior to the act it became apparent that this problem had to be addressed. The simplest solution to the problem would have been to allow the civil courts to attach a power of arrest to harassment injunctions in the same way as a power of arrest can be attached to domestic violence injunctions granted under s3 of the Domestic Violence and Matrimonial Proceedings Act 1976. Adopting the same procedure for harassment injunctions would have been simple, straightforward and effective and it is difficult to understand why the government did not adopt this course of adopting the bizarre, unprecedented and probably unworkable idea of making breach of the civil court injunction a criminal offence.
6.4 The Criminal Offence
Under s.3(6) where
'the High Court or a County Court grants an injunction for the purpose mentioned in subsection 3(a), and
(b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,
he is guilty of an offence'.
The criminal offence created by s3(6) is an either way offence punishable in the magistrates court with up to 6 months imprisonment, and/or a £5000 fine, s3(9)(b), and punishable in the crown court with up to 5 years imprisonment and an unlimited fine, s3(9)(a). Because s3(6) is punishable with up to five years' imprisonment police officers have the power to arrest without warrant anyone they reasonably suspect of having committed the offence relying on their normal arrest powers under s.24(6) Police and Criminal Evidence Act 1984. The Police therefore have been given an indirect rather than a direct power to arrest for breach of a civil court non harassment injunctions
6.5 Problems with the Criminal Offence
This indirect approach is riddled with practical problems which were clearly not properly thought out when the legislation was drafted. It seems to have been assumed, in Parliament and by the Home 0ffice, that the police would arrest an offender for the criminal offence of breach of the injunction contrary to s3(6), and would then decide whether to charge the offender with the criminal offence or bring him before the civil courts to be dealt with under the normal contempt of court procedure. However the police have not been given the necessary powers for this to happen. If a police officer arrests a defendant under s3(6) then the defendant is being arrested solely for a criminal offence not for breach of an injunction and therefore has to be dealt with in accordance with criminal and not civil procedure. The only powers the police have are to charge the defendant with the criminal offence or release him unlike the situation under the Domestic Violence and Matrimonial Proceedings Act 1976 where the police are given the express power to arrest a defendant who breaches a non molestation injunction and then bring him before a judge. The only way in which a defendant can be arrested and brought before a civil court to be dealt with for breaching a non harassment injunction is if the victim goes back to court and obtains an arrest warrant under the procedure laid down in ss3(3)(a) to 3(5). The police have no power to initiate contempt proceedings which remain the responsibility of the person who obtained the injunction.
Under ss3(7) and 3(8) breach of an anti harassment injunction may be punished either by being dealt with as a criminal offence or, alternatively by being dealt with as a contempt of court. The two options are expressed so as to be mutually exclusive.
's3(7) where any person is convicted of an offence under subsection(6) in respect of any conduct that conduct is not punishable as a contempt of court
s3(8) a person cannot be convicted of an offence under subsection (3) in respect of any conduct which has been punished as a contempt of court'
Whilst the act makes it clear that a defendant convicted of the criminal offence of breaching the injunction cannot then be dealt with for civil contempt and a defendant dealt with for contempt cannot then be convicted of the criminal offence the position is unclear with regard to a defendant who has been charged with the criminal offence and is awaiting trial. During that time can they be dealt with for contempt, or are contempt proceedings held in abeyance pending the outcome of the criminal proceedings? What is the position if the victim wishes to proceed by way of the contempt procedure but the police and crown prosecution service wish to proceed with the criminal charge?. Also ( and probably more likely ) what is the position if the police have charged and the crown prosecution service consider that the breach of the injunction could best be dealt with by the contempt procedure, or the CPS discontinue the prosecution because they consider that there is insufficient evidence or that there is no public interest in proceeding?. Finally what is the position regarding a defendant who has been tried for the criminal offence and acquitted?
As the act is worded, it would seem that where a defendant is tried for the criminal offence and acquitted there is nothing to prevent them being proceeded against for contempt. This places a defendant in the unenviable position of being in double jeopardy, which flies in the face of general principles of fairness in legal proceedings and is arguably in breach of Article 4.1 of Protocol 7 of the European Convention of Human Rights. It is to be hoped that courts would regard any attempt to institute contempt proceedings following an unsuccessful criminal trial as an abuse of process but the possibility has not been expressly precluded in the act
It is uncertain what will be the attitude of the crown prosecution service and the judiciary will be towards prosecutions brought under s3(6). Unless the breach of the injunction is extremely serious crown prosecutors will probably take the view that there is no public interest in proceeding with a prosecution and that any breach should be dealt with as a contempt. Judges in the crown court are also likely to question why the prosecution are proceeding by way of criminal charge instead of the more straight forward contempt procedure. The only circumstances in which it is likely that criminal proceeding rather than contempt proceedings would be justified is likely to be where the circumstances of the harassment are so bizarre that it is clear that the offende_×
r needs psychiatric treatment or an order under the mental health act, neither of which can be ordered by a civil court dealing with contempt of court proceedings
There is a further problem created by the way s3(6) is worded. Under 3(3)(a) the criminal offence only occurs in situations where 'the High Court or a County Court grants an injunction'. It is common in civil proceedings for applications for injunctions to be disposed of by the defendant giving 'undertakings' to the court. Undertakings are a promise to the court and as such if the undertakings are broken, the defendant can be proceeded against for contempt of court. However a court accepting undertakings given by a defendant is not the same thing as a court granting an injunction. It is a basic of the criminal law that all criminal statutes are interpreted restrictively and that any ambiguities are interpreted in favour of the defendant Because the offence created by s3(6) is of an unprecedented nature this will further tend to favour a restricted and literal interpretation being given to the wording of the section. In the absence of any specific wording in the act to the contrary it seems almost certain that breach of undertakings will not be a criminal offence under s3(6) but will simply be a contempt of court and only punishable as such
In the case of Carpenter v Carpenter 1988 1 FLR 121 Bingham LJ (as he was then) held that under the Domestic Violence and Matrimonial Proceedings Act 1976, a power of arrest could not be attached to undertakings because the wording of the Act referred to `injunctions' and undertakings are not the same as injunctions.
It is a basic rule of criminal law that all criminal statutes are interpreted restrictively and that any ambiguities are interpreted in favour of the defendant Because the offence created by s3(6) is of an unprecedented nature this will further tend to favour a restricted and literal interpretation being given to the wording of the section. In the absence of any specific wording in the act to the contrary and applying the principles in Carpenter v Carpenter it seems certain that breach of undertakings will not be a criminal offence under s3(6) but will only be a contempt of court.
This puts the police in a difficult position. Individual officers could easily find themselves in situations where they are told that an harassment injunction has been granted, and they therefore arrest for the offence of breaching the injunction. If it subsequently transpires that no injunction has in fact been granted, then it is possible that the police may be liable to be sued for unlawful arrest. Under s.24(6) Police and Criminal Evidence Act 1984, a police officer may arrest anyone who he 'has reasonable grounds for suspecting' has committed an arrestable offence. However, on what basis does a police officer form 'reasonable grounds to suspect' that someone has breached an injunction? It is after all a unique power of arrest and therefore police officers who arrest solely on the basis of what they are told, could potentially be held not to have reasonable grounds for the arrest. In order for there to be reasonable grounds for an arrest the arresting officer would need to be shown the injunction so as to be satisfied that it exists and to consider its terms are. Alternatively the arresting officer would need to confirm with police records that there is such an injunction. In effect this would require non harassment injunctions to be registered with the police. The potential problems surrounding s3(6) will probably make the police reluctant to arrest for breach of non harassment injunctions and they may consider that it would be safer to tell the harassed person that they should return to court and institute contempt proceedings against their harasser which is the exact problem the act was supposed to solve!
This does not however mean that the police are completely powerless where an injunction is allegedly breached. Where a police officer is told that a particular person is harassing someone and is also informed that the person is subject to an injunction, then the police officer will have reasonable grounds to suspect that the particular person has committed an offence contrary to s.2 because there will be an alleged repetition of previous behaviour so constituting the necessary course of conduct required for an arrest under s2. Once back in the police station the police officer could then make full enquiries to determine whether an injunction actually exists, what its terms are and whether an offence under s3(6) has actually been committed. If a police officer was to arrest under s3(6) and it subsequently transpired that there was no injunction the arrest would not be made lawful merely because the police officer could have arrested under s2. In DPP v Maudling (Divisional Court 4th December 1996 unreported see Police Review 14th February 1997) it was decided that where a police officer made an unlawful arrest the fact that other valid arrest powers existed could not make the arrest lawful. If a police officer is assaulted while making an unlawful arrest the defendant will not be guilty of assaulting the police officer in the execution of his duty.
If despite these difficulties a prosecution is commenced under s3(6) then the prosecution will need to prove that an injunction was granted and its terms. This will be done by producing a sealed copy of in the case of a High Court Injunction (Order 38 r10(2), Rules of the Supreme Court 1965) or a certified copy in the case of a county court injunction (s12 County Courts Act 1984). The prosecution will have to establish that the defendant had 'no reasonable excuse' for breaching the injunction. If the defendant claims that he did have a reasonable excuse then in certain circumstances, particularly in a jury trial, that could involve going over the circumstances and the evidence given when the injunction was granted
There is one final problem arising from the wording of s3(3)(a) when it refers to 'an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment'. Using the word any could imply that s.3(6) is not restricted to injunctions granted under the Protection from Harassment Act, but could apply to any injunction which involves any form of protection from harassment. However s.3(3)(a) begins with the words 'in such proceedings' which is a clear reference to s3(1) and it is therefore likely that the courts will interpret s3(6) as only applying to injunctions which are clearly and unambiguously made under s.3(1).
The fact that the act makes breach of a non harassment injunction a criminal offence could have an unfortunate inhibiting effect on the willingness of the civil courts to make such injunctions. Civil court judges will undoubtedly be urged by defence lawyers only to grant these injunctions if satisfied about the allegations beyond reasonable doubt about the allegations made, rather than the normal civil tests of the balance of probabilities and the balance of convenience. It would be ironic if the effect of the act was actually to make it harder for harassed persons to obtain injunctions rather than easier.
0verall, s.3(6) is an unfortunately worded section and is based on the false philosophy that civil and criminal law can be muddled with impunity. Since the Act gives criminal courts the power to grant restraining orders following criminal conviction, there is little, if any, justification whatsoever for the provisions of s.3(6) and it is likely that in practice police officers and the crown prosecution service will consider it better to confine themselves to dealing with the 'normal' criminal offences under ss.2, 4 and 5, and leave the enforcement of civil injunctions to be dealt with by the civil rather than the criminal courts. What is impossible to predict is whether the victims of harassment may be tempted to use s3(6) as the basis for private prosecutions as an alternative to contempt proceedings
6.19 Civil Procedure: Arrest Warrant
In addition to creating a criminal offence of breach of an injunction granted issued under s.3, the Act creates a new procedure allowing the civil courts to issue an arrest warrant following such a breach.
6.20 Under s.3(3)(b) where the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant.
6.21 The application for such a warrant must be made to a High Court judge in the case of a High Court injunction, or to a judge or district judge in the event of a county court injunction. The application is made ex parte, and must ordinarily be supported by affidavit evidence, though the Act contemplates oral sworn evidence as the wording of s.5(a) states that `the application is substantiated on oath'. The injunction must restrain the defendant from pursuing any conduct which amounts to_×
harassment, and it is clear that the cause of action must be framed under the statutory tort of harassment provided for by s.3(1).
6.22 The Judge or district judge may order the issue of a warrant for the arrest of the Defendant if there are reasonable grounds for believing that `the defendant has done anything which he is prohibited from doing by the injunction' s.3(5)(b).
6.23 The Act does not specify the procedure for dealing with the defendant once he has been arrested and brought before the civil courts, but presumably the normal civil contempt procedure will be adopted. It is noteworthy that the Act does not confer upon a civil judge the power to attach a power of arrest to any injunction ordered under s.3(3) and therefore the procedure under s.3(3) is an ex post facto procedure which does nothing to deter a defendant from breaching the injunction in the first place. This means that illogically the civil policing of harassment injunctions will be different from that of policing of domestic violence injunctions and injunctions generally.
6.24 As already discussed above undertakings are not the same as injunctions even through both can be punished as a contempt. and therefore a warrant cannot be issued under s.3(3) if the defendant has given undertakings to avoid an injunction. Carpenter v Carpenter 1988 1FLR 121.
6.25 The Terms of the Injunction
The general law concerning the granting of injunctions is contained in s.37 Supreme Court Act 1981:-
`(1) the High Court may by order (whether interlocutory or final) grant an injunction ... in all cases where it appears to the court to be just and convenient to do so.
(2) any such order may be made either unconditionally or on such terms and conditions as the court thinks just'.
This section applies in the county court jurisdiction under s.38 County Courts Act 1984
6.26 Thus, in order to obtain an interlocutory injunction, the plaintiff must establish a good arguable case under the statutory tort of harassment s.3(1), and that it is `just and convenient' for the court to order such an injunction.
6.27 It is submitted that under s.37(1) the plaintiff has to satisfy a relatively low threshold, although it is clear that injunctions will only be awarded if the interests of justice are served.
6.28 When considering whether and upon what terms to order an injunction the court will apply the principle of legitimate interests, and the balance of interests test between the parties. The court will need to consider which interests or series of interests take priority and whether, in order to protect the legitimate interests of the plaintiff, it is necessary to restrict the interests of the alleged harasser.
6.29 An ordinary injunction under the statutory tort will probably include, inter alia, provision preventing the defendant from:-
(a) assaulting, molesting, harassing, threatening, pestering or otherwise interfering with the plaintiff;
(b) making any communication to the plaintiff whether in writing or orally, whether by telephone or otherwise howsoever save that the defendant may send written communication to the plaintiff's solicitors; and
(c) from coming or remaining within a certain distance of the plaintiff's home address or the plaintiff's place of work.
6.30 Clause (c) is normally referred to as the exclusion zone order, and the extent of the exclusion zone will depend upon the relevant geography and the relevant facts. A wider exclusion zone will normally be ordered in a country area, and a narrower one in a large built up area. The operation of an exclusion zone will be difficult if, for instance, the parties live in the same street, or have places of work in proximity to each other. If this is the case, the court may require an exclusion zone to be referenced to a scaled plan which would prohibit the defendant from coming within specified areas or even a particular street. A specimen particulars of claim limited to injunctive relief and a draft order are set out in Appendix E.
6.31 The Relevance of the Grounds Upon Which the Injunction was Made. It is clear that a civil defendant may be the subject of a civil injunction even though their actions may have been, prima facie, lawful. Indeed the working of s.3(1) enables the court to provide injunctive relief even when the defendant has not yet committed a wrongful act since the sub clause 'may be the victim' contemplates pre emptive injunctive relief to deter a potential harasser or even to protect a potential victim. However a course of conduct or threatened course of conduct would normally have to be proved because the injunctive relief is in respect of harassing behaviour prohibited in s.1.
6.32 A number of cardinal principles arise which are fundamental to the manner in which the civil courts award injunctive relief:-
(a) The need to protect a victim from an aggressor is paramount.
`Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim`.
(b) The civil courts will restrain lawful behaviour in order to protect a plaintiff's legitimate interests. `It would not seem to me to be a valid objection to the making of an ...(injunctive)... order that the conduct to be restrained is not in itself tortious or otherwise unlawful if such an order is reasonably regarded as necessary for the protection of a plaintiff's legitimate interest.'
6.33 This is not a new principle, but it is a principle which will become more widely used as the law of harassment develops. The quia timet injunction is an illustration of this. It was used in Khorasandjian v Bush  3 ALL ER 669. The following dicta is relevant ` ... the court is entitled to look at the defendant's conduct as a whole and restrain those aspects on a quia timet basis also of his campaign of harassment which cannot strictly be classified as threats .' Thus, prima facie, behaviour which falls short of threatening or harassing behaviour can be the subject of injunctive relief.
(c) The civil courts will adopt a balance of interests test in order to reconcile the respective interests of the victim and the aggressor. The interests of the aggressor `must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff'.
What is significant is that a defendant may be in the unhappy position of being charged with breaching a civil injunction which was imposed even though they had done nothing unlawful up to the point of imposition of the injunction.
(d) The Conduct of the Parties to the Injunction
An illustration of the kind of conduct which can breach an injunction, and typifies the classic harasser or stalker is Azadani of Burris v Azadani. He was ordered, by himself, his servants or agents, not to assault, molest, harass, threaten, pester or otherwise interfere with Mrs Burris and her infant children. He was prevented from communicating with her or her children whether in writing or by telephone save by written communication to her solicitors. He was prevented from coming or remaining within 250 yards of her home in South London.
6.34 At first instance, on 12 July 1995, he received a total of 84 days imprisonment for 8 findings of contempt which it is useful to set out as follows:-
(a) On 18 December 1994 his sister arrived at the plaintiff's home to have a discussion. (breach 1 - as she was clearly his agent).
(b) On 26 December 1984 one of the defendant's friends arrived at the plaintiff's address to deliver a cassette tape and Christmas cards from him (breach 2).
(c) In January 1995 he left a message on her telephone answering machine (breach 3).
(d) On 1 February 1995 he left a message on her telephone answering machine (breach 4).
(e) On 2 February 1995 he posted an envelope through her letter box (finding of trespass - breach 5).
(f) On 4 April 1995 he knocked at her front door. He placed a note through her letter box and left parcels for the plaintiff's children (finding of trespass - breach 6).
(g) On 6 July 1995 he cycled past the plaintiff's home (breach
(h) On 7 July 1995 he cycled past the plaintiff's house (breach
6.35 On review, the Court of Appeal reduced the term of imprisonment to 28 days and reimposed a suspended term of 56 days which had been activated by the first instance judge. The grounds for the reduction were the mitigating circumstances flowing from the fact that whilst he had breached the order and was therefore guilty of contempt, he had not directly aimed his behaviour at the plaintiff: the last two incidents were limited to bicycling past her house.
6.36 The contempt perpetrated by Azadani and the manner in which the Court of Appeal considered the original sentence of the trial judge should provide helpful guidance to the courts when dealing with for breach of an injunction issued under s.3(6).
6.37 The Past Course of Harassment
It has already been established that a defendant does not necessarily have to have committed a course of harassment to be the subject of an injunction. It is sufficient if a course of harassment has been threatened or is feared. An injunction can be ordered if it is considered that the plaintiff's legitimate interests are or might be infringed by the defendant's behaviour. Consequently, it is possible for a defendant to breach an injunction even though they have not yet committed an unlawful act other than the breach itself.
6.38 Breach of Undertaking
The procedures and possible penalities for breaching an undertaking are different to breaches of an injunction. Lawyers representing a plaintiff who claims that an undertaking has been breached as well will certainly seek to persuade the civil court to replace the undertaking with an injunction and not to make any findings for contempt. This may be difficult as it is not up to a party to withdraw contempt proceedings. Contempt proceedings are technically matters to be dealt with by the civil court. If, for any reason contempt proceedings are instituted and the court does make findings of contempt it may be that s.3(8) will not apply if the court (unusually) declines to punish the defendant for such contempt. The absence of punishment would possibly leave open the option of a criminal charge under s.3(6), though defence lawyers in such circumstances would undoubtedly argue that the defendant is being placed in double jeopardy. This may not prove to be such a difficult problem in practice, but there are undoubted pitfalls and both civil and criminal lawyers will need to be aware of any proceedings taking place in the other court.