SOMEONE TO WATCH OVER ME
(An article by Neil Addison, published in the Family Law Journal December 2001, © Neil Addison. The article may be downloaded for personal use but if quoted the source must be acknowledged. )
The Protection from Harassment Act 1997 came into force on the 16th June 1997. Four years on it is now possible to assess its importance and long term significance. When it was introduced the government estimated that there would be around 200 cases under it per year. The Home Office Report "Evaluation of the use and effectiveness of the Protection from Harassment Act 1997" shows that in 1999 there were 6652 prosecutions under the act and all the evidence indicates that these numbers will increase. The report also showed that a third of all cases involved ex partners. For these reasons an understanding of the Act is essential for Family Lawyers.
Is the Act just for Stalkers
As is well known the Act 1997 was introduced into Parliament principally to deal with the highly publicised problem of stalking. Indeed it is often referred to in the media as 'the Stalking Law' and there are still some judges and lawyers who believe that that is all it can be used for. However this point was dealt with in in the Divisional Court case of DPP v Selvanayagam June 9th (Times June 23 1999) when Collins J said
"Whatever may have been the purpose behind the Act its words are clear, and it can cover harassment of any sort"
Similarly in the Court of Appeal case of R v Hills December 4th 2000 (Times 20th December 2000) Lord Justice Otton said
"It is obvious therefore that the Act may be used to prosecute a range of persons apart from those commonly referred to as "Stalkers""
Some doubt was cast on this by the High Court case of Tuppen v Microsoft 14th July 2000 (Times 15th November 2000) where Douglas Brown J said that the use of the Act was restricted to cases involving Stalking, Neighbourhood anti-social behaviour and Racial Harassment. However this restrictive view of the Act was rejected in the case of Thomas v News Group Newspapers (Times July 25th 2001) where the Court of Appeal (The Master of the Rolls presiding) held that the publication of particular Newspaper Articles could constitute harassment under the Act. To date I have not come across a single case where an appellate court has held that a particular set of circumstances could not constitute harassment in law.
The relevance of criminal case law
The core of the Act is found in section one which defines behaviour that constitutes a 'course of conduct' of harassment and makes that course of conduct both a criminal offence and a civil Tort. Whilst this is not unique in the law ( Assault for example being both a crime and a tort) it is unusual in statute law. This means that criminal case law is of particular relevance in determining the boundaries of the Act. In that respect the criminal courts have accepted a wide ranging view of the limits of the Act and that wide ranging view has consequential "knock on" effects with regard to civil liability.
The criminal case law has also emphasised that the Act leaves Trial Courts with a great deal of discretion in deciding what is and is not harassment and whether particular incidents are trivial or significant. This is shown in particular by the cases of DPP v Ramsdale 12th Feb 2001 (Admin Court) and DPP v Pratt (Times 12th August 2001). In Ramsdale the Magistrates Court found 2 incidents of Harassment by an ex boyfriend to have been proved but considered that since one of them was not "significant" harassment the defendant was not guilty. In Pratt the defendant was convicted of harassment involving 2 incidents 3 months apart and involving him and his wife in their own home. In considering both cases the Administrative Court decided that the lower courts were entitled to reach the decisions they did as decisions of fact and that different decisions would have been equally valid. It is noticeable that both these cases involved typical "domestic" situations which could also have been dealt with by Family Law Act Injunctions
What amounts to a course of conduct ?
The core of the Act is set out in section 1 which says
1 (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.
(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.
Section 2 makes this behaviour a summary criminal offence and section 3 makes it a Tort. Under s7(3)
(3) A 'course of conduct' must involve conduct on at least two occasions.
Under section 7(2)
(2) References to harassing a person include alarming the person or causing the person distress.
There does not have to be any violence or even the threat of violence for harassment to occur
Arguments about "course of conduct" have occupied the majority of appeals under the Act and it is important to note that the Act does not say that conduct on 2 occasions is a course of conduct. Merely because there have been two incidents involving the same defendant and the same victim that does not necessarily prove that there has been a course of conduct. There must be some nexus between the incidents something that shows a continuity of purpose. This was accepted by the Divisional Court in the criminal case of DPP v Lau (Times 29th March 2000) where 2 incidents of harassment separated by over 3 months were held not to constitute a course of conduct. The court did however accept that it was a matter of fact and in certain situations even something that happened only once a year could still constitute a course of conduct if there was some commonality or link between the incidents. For example an insulting or upsetting message sent every year such as on an anniversary could constitute a course of conduct.
This whole subject is not as clear as one would wish. In R v Hills 4th December 2000 the Court of Appeal held that 2 assaults occurring in April and October were not a course of conduct whilst in DPP v Baron [2000]CO/1569/00 the Divisional Court held that letters written in October and March were a course of conduct. However in Hills the defendant and the victim had resumed cohabitation between April and October which, in effect, broke the continuity of the alleged course of conduct. In DPP v Pratt (Times August 22nd 2001) the Administrative Court held that two incidents, in effect rows, between a husband and wife in their own home and 3 months apart could constitute a course of conduct thought they did comment that "the case was close to the borderline".
Anecdotal evidence suggests that some District Judges are taking the concept of a course of conduct somewhat too seriously in respect to claims for Injunctions and are refusing to make Injunctions if there has been only one incident of harassment alleged in the claim. This is a misreading of the Act in particular section 3(1) which says
s3. - (1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
An Injunction can therefore be granted if there is merely an "apprehended breach". If there has only been one incident and another one is feared or if there is some reasonable evidence that a course of conduct may be embarked upon then an Injunction can be granted. The defendant does not have to wait until there have been two incidents before applying for an Injunction.
Anti-harassment Injunctions
The use of anti-harassment Injunctions is the most likely area in which Family lawyers will become involved with the Act. What is important to understand is that anti-harassment Injunctions are quite unique which means that in certain ways they are both more useful and less useful than Family Law Act injunctions. The unique aspect lies in section 3(6) which says that where
(a) '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'.
Should you ask for a power of arrest ?
I frequently come across applications for anti-harassment Injunctions which ask the court to "attach a power of arrest". That is wholly wrong and unnecessary. The criminal offence created by s3(6) is an either way criminal offence punishable in the Crown Court with up to 5 years imprisonment. That means that police officers have the power to arrest without warrant a person who they reasonably suspect of having breached the Injunction relying on their normal arrest powers under s.24(6) Police and Criminal Evidence Act 1984. Unlike Family Law Act Injunctions the power of arrest in a Protection from Harassment Act injunction is inherent within it and is not separately attached to it. Also the Police do not have to be present when the Injunction is breached in order to arrest.
However unlike the situation with Family Law Act Injunctions the Police are not enforcing the Injunction as an injunction. They are not arresting the offender in order to bring them before the civil court in order to be dealt with for contempt they are arresting him for a criminal offence for which they will be brought before the criminal rather than the civil courts. The only powers the police have are to charge the defendant with the criminal offence or release them and, once charged with the criminal offence they must either be bailed or put before a Magistrates Court
Also unlike the situation in Domestic Violence cases where it can be common for defendants to be appearing in the civil courts for breach of a non molestation Injunction and also in the criminal court charged with an assault breach of an anti-harassment Injunction can be dealt with either as a crime or a contempt but not both.
'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'
Cost Considerations
Where a client qualifies for legal aid there may be no particular advantage in applying for an anti-harassment Injunction rather than a Family Law Injunction. When a client does not qualify an anti-harassment Injunction is preferable since it puts the onus, and the costs, of enforcing the Injunction on the Police and CPS rather than the client. The disadvantage however is that the Solicitor for the aggrieved person is in not in control of the case. The police and the CPS are.
Proceedings for Contempt
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 CPS wish to proceed with the criminal charge?. Also what is the position of 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. It is likely 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.
If however the CPS or police simply decide not to proceed with a charge of breach of the Injunction then there is nothing to stop a claimant bringing contempt proceedings and it would be difficult to argue that that would be an abuse of process. A decision by the Police or CPS not to proceed with a prosecution is an administrative rather than a legal decision. Some Police and CPS officers seem to take the view unless the breach of the injunction is extremely serious there is no public interest in proceeding with a prosecution and that any breach should be dealt with as a contempt.
Using anti-harassment Injunctions against juveniles
One particularly useful aspect of anti-harassment Injunctions which seems not to have been recognised by many lawyers is that they can be obtained against juveniles. As is well known generally Injunctions cannot be obtained against Juveniles because Juveniles cannot be sent to prison and the only power civil courts have to punish breaches of Injunctions is to commit to prison or to fine. In the case of Wookey v Wookey [1991] 3 All ER 365, 3 WLR 135, 2 FLR 3191 the Court of Appeal confirmed that Injunctions should not normally be granted against juveniles but this was justified on pragmatic rather than legal grounds.
The Court in Wookey said that courts should not make Injunctions which they had no power to enforce and in the case of juveniles they had in effect no enforcement power. However the court did note that there was no actual legal reason why an Injunction could not be made against an juvenile provided there was some way of enforcing it. In some rare cases, for example, a juvenile might be in possession of a sizeable income and in that situation the court said an Injunction could be made because if the defendant could be fined if he breached the Injunction then a breach could be punished
It does seem therefore that there is no reason why a Protection from Harassment Act Injunction should not be made against a Juvenile over the age of ten. Breach of such an Injunction would be a criminal offence and therefore could be punished by a criminal prosecution in the Youth Court. Since the Injunction would be enforceable it could be made. This could be useful in situations such as that in H v H (The Times January 10 2001).
A claim for Damages
Finally it should not be forgotten that under s3(2) of the Act
damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
In situations where ex partners have been subjected to Harassment a claim for damages may be justified alongside a claim for an Injunction. In some situations it might well be that the threat of a civil claim for damages may be more effective and more frightening than the threat of a claim for an Injunction