Hatred and Harassment Offences

Question 1

Offences Involving Racial, Religious or Sexual Orientation Hatred

Answer 1

Offences involving racial, religious or sexual orientation hatred are dealt with by the Public Order Act 1986. This section provides a summary of these offences which are aimed at addressing incidents specifically motivated by racial hatred, religious hatred or hatred on the grounds of sexual orientation.

For the purposes of the offences contrary to ss. 18 to 23 of the 1986 Act, ‘racial hatred’ means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins (s. 17).

For the purposes of offences contrary to ss. 29B to 29G of the 1986 Act, ‘religious hatred’ means hatred against a group of persons defined by reference to religious belief or lack of religious belief (s. 29A).

Section 29AB of the 1986 Act defines ‘hatred on the grounds of sexual orientation’. The definition covers hatred against a group of persons defined by reference to their sexual orientation, be they heterosexual, homosexual or bi-sexual.

Question 2

Use of Words or Behaviour or Display of Written Material—Public Order Act 1986, s. 18

Answer 2

• Triable either way
• Seven years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Public Order Act 1986, s. 18 states:
(1)
A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—
(a)
he intends thereby to stir up racial hatred, or
(b)
having regard to all the circumstances racial hatred is likely to be stirred up thereby.
(2)
An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.

Question 3

Use of Words or Behaviour or Display of Written Material

Answer 3

This, and the other offences under ss. 19, 29B and 29C, may not be prosecuted without the consent of the Attorney-General (or Solicitor-General).

This offence does not apply to broadcasts in a programme (but see para. 2.8.3) and there are exemptions in the case of fair and accurate reports of parliamentary or court proceedings.

Question 4

Defence - The Public Order Act 1986, s. 18 states:

Answer 4

(4)
In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.

Question 5

Publishing or Distributing Written Material—Public Order Act 1986, s. 19

Answer 5

• Triable either way
• Seven years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Public Order Act 1986, s. 19 states:

(1)
	A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—
	(a)
		he intends thereby to stir up racial hatred, or
	(b)
		having regard to all the circumstances racial hatred is likely to be stirred up thereby.
(2)
	. . .
(3)
	References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.

Question 6

Defence - The Public Order Act 1986, s. 19 states:

Answer 6

(2)
In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

Question 7

Use of Words or Behaviour or Display of Written Material—Public Order Act 1986, s. 29B

Answer 7

• Triable either way
• Not exceeding seven years’ imprisonment and/or a fine on indictment
• Not exceeding six months’ imprisonment and/or a fine summarily

The Public Order Act 1986, s. 29B states:
(1)
A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred or hatred on the grounds of sexual orientation.
(2)
An offence under this section is committed in a public or private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.

Question 8

Use of Words or Behaviour or Display of Written Material

Answer 8

The defences available to the offence under s. 18 apply to this particular section (no reason to believe the words or behaviour, etc., would be heard or seen outside the dwelling (s. 29B(4)), or where used solely for the purpose of being included in a programming service (s. 29B(5)).

Section 29J of the Act provides that the offences of stirring up religious hatred are not intended to limit or restrict discussion, criticism or expressions of antipathy, dislike, ridicule or insult or abuse of particular religions or belief systems or lack of religion or of the beliefs and practices of those who hold such beliefs or to apply to persons newly converted to a religious faith, evangelism or the seeking to convert people to a particular belief or to cease holding a belief.

In relation to the sexual orientation element of these offences the relevant act (namely, words, behaviour, written material or recordings or programme) must be threatening, and the offender must intend thereby to stir up hatred on the grounds of sexual orientation.

Question 9

Publishing or Distributing Written Material—Public Order Act 1986, s. 29C

Answer 9

• Triable either way
• Not exceeding seven years’ imprisonment and/or a fine on indictment
• Not exceeding six months’ imprisonment and/or a fine summarily

The Public Order Act 1986, s. 29C states:

(1)
	A person who publishes or distributes written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred or hatred on the grounds of sexual orientation.
(2)
	References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.

Question 10

Publishing or Distributing Written Material

Answer 10

The offences under ss. 29B and 29C differ from the offences of stirring up racial hatred in part 3 of the 1986 Act, in two respects. First, the offences apply only to ‘threatening’ words or behaviour, rather than ‘threatening, abusive or insulting’ words or behaviour. Secondly, the offences apply only to words or behaviour if the accused ‘intends’ to stir up religious hatred or hatred on grounds of sexual orientation, rather than if hatred is either intentional or ‘likely’ to be stirred up.

Question 11

Harassment and Stalking

Answer 11

There is a significant amount of material to examine in relation to the offences associated with harassment and stalking under the Protection from Harassment Act 1997. To aid understanding, the offences have been broken down into their component parts and follow the below order:

• Harassment contrary to ss. 1 and 2 of the Act (see para. 2.8.4). This section includes the law in relation to injunctions and restraining orders
• Putting people in fear of violence contrary to s. 4 of the Act (see para. 2.8.5)
• Stalking contrary to s. 2A of the Act and stalking involving fear of violence etc. contrary to s. 4A of the Act (see para. 2.8.6).

Question 12

Harassment—Protection from Harassment Act 1997, ss. 1 and 2

Answer 12

• Triable summarily
• Six months’ imprisonment and/or a fine

The Protection from Harassment Act 1997, ss. 1 and 2 state:
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.
(1A)
A person must not pursue a course of conduct—
(a)
which involves harassment of two or more persons, and
(b)
which he knows or ought to know involves harassment of those persons, and
(c)
by which he intends to persuade any person (whether or not one of those mentioned above)—
(i)
not to do something that he is entitled or required to do, or
(ii)
to do something that he is not under any obligation to do.
…
2.—(1)
A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.

Question 13

Racially or Religiously Aggravated Harassment—Crime and Disorder Act 1998, s. 32(1)(a)

Answer 13

• Triable either way
• Two years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

Question 14

‘Person’ and Companies

Answer 14

‘Person’ here does not include companies or corporate bodies and therefore they cannot be the victim of harassment or apply for injunctions under this part of the legislation. However, an individual employee or a clearly defined group of individuals could be such a victim (DPP v Dziurzynski [2002] EWHC 1380 (Admin)) and as such they can apply for injunctions (Daiichi UK Ltd v (1) Stop Huntingdon Cruelty, and (2) Animal Liberation Front [2003] EWHC 2337 (QB)). For injunctions relating to companies, see para. 2.8.4.10.

In Majrowski v Guy’s and St Thomas’ NHS Trust [2005] EWCA Civ 251, the Court of Appeal held that a company could be a ‘person’ capable of harassing ‘another’ within the meaning of the Act. This ruling could therefore have implications in relation to the self-employed, customers and suppliers of businesses and members of the public in general. Where it can be shown that the conduct was carried out in the course of employment the employer could be held to be vicariously liable for that conduct.

Question 15

The ‘course of conduct’ by a person is defined under s. 7 of the Act which states:

Answer 15

(3)
A ‘course of conduct’ must involve—
(a)
in the case of conduct in relation to a single person (see s. 1(1)), conduct on at least two occasions in relation to that person, or
(b)
in the case of conduct in relation to two or more persons (see s. 1(1A)), conduct on at least one occasion in relation to each of those persons.
(3A)
A person’s conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another—
(a)
to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and
(b)
to be conduct in relation to which the other’s knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.
(4)
‘Conduct’ includes speech.
(5)
References to a person, in the context of the harassment of a person, are references to a person who is an individual.

Question 16

‘Course of Conduct’

Answer 16

The definition of a ‘course of conduct’ in s. 7 is an inclusive but not exhaustive list.

It appears that doing something remotely which has the desired effect on the victim, such as deliberately making a dog bark at someone, could form part of a ‘course of conduct’ for the purposes of an offence under the 1997 Act (R (On the Application of Taffurelli) v DPP [2004] EWHC 2791 (Admin)). However, simply failing to stop a dog barking is a different matter and one that the Divisional Court in Taffurelli did not resolve.

Question 17

‘Harassment’

Answer 17

‘Harassment’ includes alarming the person or causing him/her distress (s. 7(2) of the 1997 Act). The inclusion of harm and distress is significant as it has been held that a person, in this case a police officer, can be alarmed for the safety of another (Lodge v DPP [1989] COD 179). Although the words used in s. 7 are ‘alarm and distress’, the Divisional Court has held that they should be taken disjunctively and not conjunctively, that is, the court need only be satisfied that the behaviour involved one or the other; alarm or distress (DPP v Ramsdale [2001] EWHC Admin 106).

Question 18

The s. 1(1A) Offence

Answer 18

The s. 1(1A) offence was introduced specifically to protect employees working for certain companies from harassment by animal rights protestors. Because of the courts’ strict interpretation of the elements of the s. 1 offence (as discussed above) it was unclear how far such employees could be protected by this provision when they had not previously been harassed individually even where fellow employees had been. Section 1(1A) makes it an offence for a person to pursue a course of conduct involving the harassment of two or more people on separate occasions which the defendant knows or ought to know involves harassment. The purpose of such harassment is to persuade any person (not necessarily one of the people being harassed) not to do something he/she is entitled to do (such as going to work) or to do something he/she is not under any obligation to do (such as releasing animals or passing on confidential information).

The sort of behaviour envisaged by the offence would be the making of threats and intimidation which forces an individual or individuals to stop doing lawful business with another company or with another person. The subsection is not intended to outlaw peaceful protesting or lobbying. For instance, a person simply distributing leaflets outside a shop would not commit this offence unless they threatened or intimidated the people to whom they were handing their leaflets and that person felt harassed, alarmed or distressed. There w

Question 19

Examples of ‘course of conduct’ in relation to s. 1(1A) are provided in Home Office Circular 34/2005 and include:

Answer 19

• Where an animal rights extremist sends a threatening letter on one occasion to an individual who works for a company and the same extremist sends a threatening email on another occasion to another individual who works for the same company, and his intention is to persuade the individuals that they should not work for that company because of the work that company does, or the contract that it has with other companies, he would commit an offence.
• Where an animal rights extremist sends a threatening letter on one occasion to an individual who works for company A and the same extremist sends a threatening email on another occasion to another individual who works for company B, and his intention is to persuade the individuals that they should not work for these companies because both companies supply company C, or he intends by his actions to persuade companies A and B not to supply company C, he would commit an offence. In both these examples, if the letters or emails were sent by separate extremists, yet it could be proved that they were acting together, they both would be guilty of an offence. Additionally, under the new s. 3A both an individual employee or a company can apply for an injunction (see para. 2.8.4.10).

Question 20

General Points

Answer 20

Not all courses of conduct will satisfy the offence of harassment. Lau v DPP [2000] 1 FLR 799 involved a battery (slapping across the face) against the complainant on one occasion, followed sometime later by a threat being made to the complainant’s boyfriend in her presence. The court held that the evidence of a ‘course of conduct’ by the defendant was insufficient to convict. It stated that regard should be had to the number of incidents and the relative times when they took place; the fewer the incidents and the further apart in time that they took place, the less likely it was that a court would find that harassment had taken place.

There are some incidents that do not amount to harassment. Where a defendant approached the victim to strike up conversations and had sent her a gift, this was insufficient to constitute harassment. However, such incidents could provide a background to later behaviour that included covertly filming the victim and rummaging through her rubbish (King v DPP [2001] ACD 7).

On occasions the courts have accepted that two instances of behaviour by the defendant several months apart will suffice. Where a defendant wrote two threatening letters to a member of the Benefits Agency staff, he was convicted of harassment even though there had been four and a half months’ interval between the two letters (Baron v CPS (2000) 13 June, unreported). The opposite course of conduct was found to amount to harassment where a defendant made several calls to the victim’s mobile phone in the space of five minutes. In this case several abusive and threatening messages were left on the victim’s voicemail facility and later replayed one after the other (Kelly v DPP [2002] EWHC 1428 (Admin)). The court held that it was enough that the victim was alarmed or distressed by the course of conduct as a whole rather than by each act making up the course of conduct. This is a different requirement from the more serious offence under s. 4 where the victim must be caused to fear violence on at least two occasions. In relation to that more serious offence, a magistrates’ court has been allowed to regard a defendant’s conduct on the second occasion as almost retrospectively affecting previous conduct on the first occasion.

There is no specific requirement that the activity making up the course of conduct be of the same nature. Therefore two distinctly different types of behaviour by the defendant (e.g. making a telephone call on one occasion and damaging the victim’s property on another) may suffice. In a case involving the racially or religiously aggravated offence, the aggravating element will need to be proved in relation to both instances of the defendant’s conduct.

Some behaviour will be sufficiently disturbing or alarming for two instances alone to suffice (e.g. the making of overt threats). Other behaviour, however, may not be sufficient to establish ‘harassment’ after only two occasions (e.g. the sending of flowers and gifts) and may require more than the bare statutory minimum of two occasions.

Although it may be helpful in terms of proving the occurrence of two or more acts amounting to ‘a course of conduct’, the practice in some police areas of issuing warnings and maintaining a register of the same (particularly in relation to their own officers) is not a specific requirement of the Act and may raise some issues of procedural fairness.

The repeated commission of other offences (say, public order offences or offences against property) involving the same victim may also amount to harassment. In such cases the advice of the CPS should be sought as to which charge(s) to prefer.

To recap the s. 1 offence, you must prove that:
* the ‘person’ pursued a ‘course of conduct’ and
* the ‘course of conduct’ amounted to ‘harassment’.

The final element required to prove the offence is that the defendant knew, or ought to have known, that his/her conduct amounted to harassment.

To avoid the practical difficulties of proving the subjective intention of the defendant, the offence focuses on an objective test.

Question 21

s. 1 of the 1997 Act states:

Answer 21

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

Question 22

What a Reasonable Person Would Think Amounts to Harassment

Answer 22

Section 1(2) requires the jury/court to consider whether the defendant ought to have known that his/her conduct amounted to or involved harassment by the objective test of what a ‘reasonable person’ would think. Section 1(3)(c) also imposes an objective test as to whether that conduct was reasonable in the judgment of the jury/court. As a result, the Court of Appeal has held that no characteristics of the defendant can be attached to the word ‘reasonable’ (R v Colohan [2001] EWCA Crim 1251).

Although the defendant’s mental illness may be relevant to sentence, the protective and preventive nature of the Act together with the objective nature of the tests above means that such illness does not provide a defence.

Question 23

Aiding and Abetting

Answer 23

If someone aids, abets, counsels or procures another to commit an offence under the 1997 Act, the conduct of the ‘primary’ defendant will be taken to be the conduct of the aider, abettor, counsellor or procurer of the offence. This does not prevent the primary defendant’s conduct from being relevant; what it does is to make the aider, abettor, etc. of the offence liable for the conduct which he/she has facilitated. The Act also makes provision for determining the knowledge and intention of aiders, abettors, etc. and although this is referred to as ‘collective harassment’, it overlaps with the concept of incomplete offences (see chapter 1.3) and the advice of the CPS should be sought in formulating appropriate charges.

Question 24

Defences

Answer 24

If the person concerned in the course of conduct can show that he/she did so:

• for the purpose of preventing or detecting crime, or
• under any enactment or rule of law to comply with a particular condition or requirement, or
• in circumstances whereby the course of conduct was reasonable,
  the offence under s. 1(1) and (1A) will not apply (s. 1(3)).

The burden of proving any of these features or circumstances lies with the defendant (on the balance of probabilities).
Examples might be police or DSS surveillance teams, or court officers serving summonses.

Whether a course of conduct is ‘reasonable’ will be a question of fact for a court to decide in the light of all the circumstances. The wording of s. 1(2) suggests that such a test is an objective one (i.e. as a reasonable bystander) and not one based upon the particular belief or perception of the defendant, otherwise the main effect of the 1997 Act would be considerably diluted.

Keynote

In KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB) a police officer obtained from a female interviewee, over the course of several visits to her home, detailed explicit information about her sexual conduct. The interviewee was the mother of a complainant who had been allegedly raped and assaulted. The court held that the information obtained was not for the purpose of preventing or detecting crime under s. 1(3)(a) but to satisfy the officer’s lewd interest.

Question 25

Injunctions and Restraining Orders

Answer 25

The courts have two significant sources of power available to them to deal with harassment under the 1997 Act. These are injunctions and restraining orders. Injunctions are issued in the ordinary way of any civil injunction whereas restraining orders follow a conviction for an offence under ss. 2 or 4 (see para 2.8.5) of the Act.

Question 26

Injunctions

Answer 26

Under ss. 3 and 3A of the Protection from Harassment Act 1997, the High Court or a county court may issue an injunction in respect of civil proceedings brought in respect of an actual or apprehended breach of s. 1(1) and (1A). The effect of this is that a defendant may be made the subject of an injunction even though his/her behaviour has not amounted to an offence under the 1997 Act.

The person who is the victim of the offence under s. 1(1A) or any person at whom the persuasion is aimed, may apply for an injunction. Therefore, where people who work for a life science or fur company are being harassed in order to persuade them not to work for that company, or in order to persuade the company not to supply another company, either the employees themselves or the company in question could apply for an injunction.

Anyone arrested under a warrant issued under s. 3(3)(b) may be dealt with by the court at the time of his/her appearance. Alternatively, the court may adjourn the proceedings and release the defendant, dealing with him/her within 14 days of his/her arrest provided the defendant is given not less than two days’ notice of the adjourned hearing (Rules of the Supreme Court (Amendment) 1998 (SI 1998/1898) and the County Court (Amendment) Rules 1998 (SI 1998/1899)).

In a case involving an injunction restraining the actions of an anti-vivisection group, the Divisional Court held that the 1997 Act was not a means of preventing individuals from exercising their right to protest over issues of public interest. Such an extension of the law had clearly not been Parliament’s intention and the courts would resist any attempts to interpret the Act widely (Huntingdon Life Sciences Ltd v Curtin (1997) The Times, 11 December).

The application for an injunction is essentially a private matter being pursued by an individual. The point at which the matter becomes of concern to policing is where the injunction is breached without reasonable excuse. The civil standard of proof (balance of probabilities) will apply to injunction applications (Hipgrave v Jones [2004] EWHC 2901 (QB)).

In harassment cases the High Court can grant a provisional injunction under s. 37(1) of the Senior Courts Act 1981. This injunction can restrain conduct which is not in itself tortious or unlawful but is reasonably necessary to protect the legitimate interests of others. This includes the power to impose an exclusion zone when granting a non-molestation injunction (Burris v Azadani [1995] 1 WLR 1372). However in Hall v Save Newchurch Guinea Pigs (Campaign) [2005] EWHC 372 (QB), the court held that a 200 km2 exclusion zone was not reasonably necessary for the protection of the protected person’s rights.

Question 27

Section 3 also states:

Answer 27

(3)
Where—
(a)
in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
(b)
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.

Question 28

Section 3A states:

Answer 28

(1)
This section applies where there is an actual or apprehended breach of section 1(1A) by any person (‘the relevant person’).
(2)
In such a case—
(a)
any person who is or may be a victim of the course of conduct in question, or
(b)
any person who is or may be a person falling within section 1(1A)(c),
may apply to the High Court or the county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.
(3)
Sections 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a).

Question 29

Breach of Injunction—Protection from Harassment Act 1997, s. 3(6)

Answer 29

• Triable either way
• Five years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Protection from Harassment Act 1997, s. 3 states:
(6)
Where—
(a)
the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and
(b)
without reasonable …
he
is guilty of an offence.

Question 30

Breach of Injunction

Answer 30

Civil injunctions generally will only involve the police where a power of an arrest has been attached (e.g. under s. 3(3) above). In these cases the role of the police will be to bring the defendant before the court in order that he/she can explain his/her behaviour. There is therefore no investigative or prosecuting function on the part of the officers. Section 3(6), however, creates a specific offence of breaching the terms of an injunction.

If a defendant breaches an injunction and commits the offence under s. 3(6), he/she will be dealt with in the way of any other prisoner brought into police detention and will face a prison sentence of five years.

Question 31

Civil Claims for Harassment

Answer 31

Under s. 3(1) conduct or apprehended conduct falling within s. 1(1) and (1A) may be the subject of a civil claim by the victim/intended victim. This creates a ‘statutory tort’ of harassment in addition to the criminal offence.

Question 32

The Protection from Harassment Act 1997, s. 5 states:

Answer 32

(2)
The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which—
(a)
amounts to harassment, or
(b)
will cause a fear of violence,
prohibit the defendant from doing anything described in the order.

Question 33

Restraining Orders

Answer 33

Section 5A of the Act enables the courts in England and Wales to impose a restraining order, when sentencing for any offence, for the purpose of protecting a person from conduct which amounts to harassment or will cause a fear of violence (see para. 2.8.5) by the defendant. The court will be able to make a restraining order on acquittal for any offence where it considers it necessary to protect a person from harassment. Any person mentioned in the restraining order has the right to make a representation if an application is made to vary or discharge the restraining order (equivalent powers are available in respect of Northern Ireland).

Keynote

Unlike the injunction under s. 3(3), restraining orders can be made in a criminal court.

The order may be made for the protection of the victim or anyone else mentioned and it may run for a specified period or until a further order. Any order must identify by name the parties it is intended to protect (R v Mann (2000) 97(14) LSG 41).

In a case arising out of protests against fur retailers, the Divisional Court held that restraining orders under the 1997 Act did not generally breach the right to freedom of speech and association as protected by Articles 10 and 11 of the European Convention on Human Rights (Silverton v Gravett (2001) LTL 31 October).

The prosecutor, the defendant or anyone else mentioned in the order may apply to the court that made it to have the order varied or discharged (s. 5(4)). The courts have the power to vary an order made for a specified period of time so as to extend the expiry date of the order (DPP v Hall [2005] EWHC 2612 (Admin)). In R v Debnath [2005] EWCA Crim 3472 an order prohibiting an offender from publishing information indefinitely was held to be lawful and not in breach of Article 10 (Freedom of Expression) of the European Convention on Human Rights.

An example of how restraining orders can operate can be seen in R v Evans (Dorothy) [2004] EWCA 3102. In that case the appellant had been convicted of harassing her neighbours and a restraining order under s. 5(5) had been made by the court. Among other things, the order prohibited the appellant from ‘using abusive words or actions’ towards her neighbours. Some time into the life of the order, the neighbour called a plumber out to their house and he parked his van in the street. It was alleged that the appellant then moved her own car, which was also parked in the street, into such a position that it effectively blocked the plumber’s van. The appellant was convicted of the offence of breaching the order and appealed, partly on the basis that her conduct could not properly be said to have amounted to ‘abusive action’. The Court of Appeal held that such matters should be approached in the same way as specific legislation which outlaws abusive conduct, and that a jury was entitled to conclude that, as she had been motivated by spite, the appellant’s actions could be ‘abusive’ for this purpose.

Question 34

Breach of Restraining Order—Protection from Harassment Act 1997, s. 5(5)

Answer 34

• Triable either way
• Five years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Protection from Harassment Act 1997, s. 5 states:
(5)
If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

Question 35

Breach of Restraining Order

Answer 35

The above offence is one of strict liability and therefore whether the defendant believed that the order was no longer in force is only relevant to the extent that he/she may have a reasonable excuse (Barber v CPS [2004] EWHC 2605 (Admin)). The prosecution needs simply to prove the existence and terms of the order (which it can do by an admission from the defendant in interview) and the doing of anything prohibited by it. Once that is done the offence is complete.

In the case of R v Evans (Dorothy) [2004] EWCA Crim 3102, the Court of Appeal held that harassment takes many forms and therefore the courts need to be able to prohibit conduct in fairly wide terms (e.g. in the wording of the order). It is, however, unclear just how far the defendant’s subjective understanding of the terms of the order will be relevant. If a defendant honestly believed that his/her conduct did not breach the terms of the order, this would certainly be relevant when considering whether or not he/she had a ‘reasonable excuse’.

Substituting or failing to include a charge under ss. 2 or 4 removes the court’s powers to make a restraining order which may be the main remedy sought by a victim. In any cases of doubt the guidance of the CPS should be sought.

Question 36

Putting People in Fear of Violence—Protection from Harassment Act 1997, s. 4

Answer 36

• Triable either way
• 10 years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Protection from Harassment Act 1997, s. 4 states:
(1)
A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.

Question 37

Putting People in Fear of Violence

Answer 37

The defendant’s course of conduct must cause the victim to fear that violence will (rather than might) be used against him or her (rather than someone else) so:

• showing that the conduct caused the victim to be seriously frightened of what might happen in the future is not enough (R v Henley [2000] Crim LR 582);
• causing a person to fear, on at least two occasions, that violence would be used against a member of their family is not enough (Mohammed Ali Caurti v DPP [2001] EWHC Admin 867).

The defendant must know, or ought to know that their conduct will cause the other person to fear violence. This may be shown by any previous conversations or communications between the defendant and the victim, together with the victim’s response to the defendant’s earlier behaviour (e.g. running away, calling the police, etc.).

The fear of violence being used against the victim must be present on both occasions. If it is present on one occasion but not the other, the offence under s. 2 above may be appropriate. This is not necessarily as straightforward as it may seem. What if the defendant’s conduct on the first occasion (e.g. a threat to burn the victim’s house down) did not cause the victim undue concern, but a second threat some time later to do the same thing did put the victim in fear of violence, partly because this was the second time the threat had been made? These were the circumstances in R (On the Application of A) v DPP [2004] EWHC 2454 (Admin), where the defendant argued that the victim had only been put in fear of violence by his threats to burn her house down on the second occasion and that therefore the offence had not been made out. The Divisional Court disagreed and held that the magistrates were entitled to find as a matter of fact that the two incidents had put the victim in fear of violence, notwithstanding her admission that, on the first occasion, she had not been too concerned.

Unlike some of the other racially or religiously aggravated offences, provisions are specifically made for alternative verdicts in relation to harassment (s. 32(6) of the Crime and Disorder Act 1998). Where the racially or religiously aggravated form of the offence is charged, the aggravating element of the defendant’s conduct must be shown in relation to both instances.

As with the s. 2 offence, a single instance of behaviour may be enough to support a charge for another offence.
This offence is not one of intent but one which is subject to a test of reasonableness against the standard of an ordinary person in possession of the same information as the defendant.

For the powers of a court to issue a restraining order in relation to this offence, see para. 2.8.4.13.

The Protection from Harassment Act 1997, s. 4 goes on to state:
(2)
For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.

Question 38

The Protection from Harassment Act 1997, s. 4 states:

Answer 38

(3)
It is a defence for a person charged with an offence under this section to show that—
(a)
his course of conduct was pursued for the purpose of preventing or detecting crime,
(b)
his course of conduct 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)
the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another’s property.

Question 39

Defence

Answer 39

There is a slight difference in the wording of the defence when compared with that under s. 1(3) above. There, the defendant may show that his/her conduct was reasonable in the particular circumstances. In relation to the offence under s. 4, the defendant must show that his/her conduct was reasonable for the protection of him/herself, another person or his/her own/another’s property. These are the only grounds on which the defendant may argue reasonableness in answer to a charge under s. 4. He/she could not therefore argue, say, that the pursuit of the course of conduct was ‘reasonable’ in order to enforce a debt or to communicate with the victim.

In addition, s. 12 allows for the Secretary of State to certify that the conduct was carried out by a ‘specified person’ on a ‘specified occasion’ related to:

• national security,
• the economic well-being of the United Kingdom, or
• the prevention or detection of serious crime,
  on behalf of the Crown. If such a certification is made, the conduct of the specified person will not be an offence under the 1997 Act.

Question 40

The Stalking Offences

Answer 40

The Protection of Freedoms Act 2012 created the specific offence of ‘stalking’ and inserted the below offences into the Protection from Harassment Act 1997.

Question 41

Stalking—Protection from Harassment Act 1997, s. 2A

Answer 41

• Triable summarily
• Six months’ imprisonment and/or a fine

The Protection from Harassment Act 1997, s. 2A states:
(1)
A person is guilty of an offence if—
(a)
the person pursues a course of conduct in breach of s. 1(1), and
(b)
the course of conduct amounts to stalking.

Question 42

For the purposes of the offence under s. 2A (and also the following offence under s. 4A below), a course of conduct amounts to stalking of another person if:

Answer 42

• it amounts to harassment of that person (under s. 7(2) of the Protection from Harassment Act 1997, references to harassing a person include alarming the person or causing the person distress);
• the acts or omissions involved are ones associated with stalking; and
• the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.

Question 43

What is ‘Stalking’?

Answer 43

Section 2A(3) lists examples of behaviours associated with stalking. The list is not exhaustive but gives an indication of the types of behaviour that may be displayed in a stalking offence.

The listed behaviours are:
* following a person;
* contacting, or attempting to contact, a person by any means;
* publishing any statement or other material (i) relating or purporting to relate to a person, or (ii) purporting to originate from a person;
* monitoring the use by a person of the internet, email or any other form of electronic communication;
* loitering in any place (whether public or private);
* interfering with any property in the possession of a person;
* watching or spying on a person.

Section 2A does not include a specific defence for stalking. However, because an offence of stalking can only be established where an offence of harassment has occurred, a person charged with an offence under s. 2A could rely on the defence to harassment under s. 1(3) (see para. 2.8.4.8).

Under s. 2B of the Act the police have a power of entry in relation to the s. 2A stalking offence. A constable can apply to a justice of the peace, who may issue a warrant authorising entry and search of premises providing there are reasonable grounds to believe the conditions in s. 2B are met. A constable may seize and retain anything for which a search was authorised, and may use reasonable force, if necessary, in the exercise of any power conferred by s. 2B.

Question 44

Stalking Involving Fear of Violence or Serious Alarm or Distress—Protection from Harassment Act 1997, s. 4A

Answer 44

• Triable either way
• 10 years’ imprisonment and/or an unlimited fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Protection from Harassment Act 1997, s. 4A states:
(1)
A person (‘A’) whose course of conduct—
(a)
amounts to stalking, and
(b)
either—
(i)
causes another (‘B’) to fear, on at least two occasions, that violence will be used against B, or
(ii)
causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities,
is guilty of an offence if A knows or ought to know that A’s conduct will cause B so to fear on each of those occasions or (as the case may be) will cause such alarm or distress.

Question 45

Stalking Involving Fear of Violence or Serious Alarm or Distress

Answer 45

For the purposes of s. 4A(1)(b)(i) a person (A) ought to know that A’s course of conduct will cause another (B) to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.

The second arm of the offence prohibits a course of conduct which causes ‘serious alarm or distress’ which has a ‘substantial adverse effect on the day-to-day activities of the victim’. It is designed to recognise the serious impact that stalking may have on victims, even where an explicit fear of violence is not created by each incident of stalking behaviour.

The phrase ‘substantial adverse effect on the usual day-to-day activities’ is not defined in s. 4A, and thus its construction will be a matter for the courts via judicial interpretation. However, the Home Office considers that evidence of a substantial adverse effect caused by the stalker may include:

• victims changing their routes to work, work patterns or employment;
• victims arranging for friends or family to pick up children from school (to avoid contact with the stalker);
• victims putting in place additional security measures in their home;
• victims moving home;
• physical or mental ill-health;
• victims’ deterioration in performance at work due to stress;
• victims stopping or changing the way they socialise.

Although some victims try to continue their existing routines in defiance of a stalker, they may still be able to evidence substantial impact on their usual day-to-day activities, depending on the individual case.

For the purposes of s. 4A(1)(b)(ii), A ought to know that A’s course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.

Under s. 4A(4), there is a defence to the offence of stalking involving fear of violence or serious alarm or distress which is a mirror image of the defence to the offence under s.4 (see para. 2.8.5.1).

Question 46

Police Direction to Prevent Intimidation or Harassment

Answer 46

In response to a number of campaigns against individuals believed to be involved in animal experiments, the Criminal Justice and Police Act 2001 gives the police specific powers to prevent the intimidation or harassment of people in their own or others’ homes. Situations envisaged by the legislation typically arise where protestors gather outside a house where a particular individual is believed to be. Under such circumstances s. 42 provides the most senior ranking police officer at the scene with discretionary powers to give directions to people in the vicinity.

The power arises where:

• the person is outside (or in the vicinity of) any premises that are used by any individual as his/her dwelling, and
• the constable believes, on reasonable grounds, that the person is there for the purpose of representing or persuading the resident (or anyone else)
• that he/she should not do something he/she is entitled or required to do, or
• that he/she should do something that he/she is under no obligation to do, and
• the constable also believes, on reasonable grounds, that the person’s presence amounts to, or is likely to result in, the harassment of the resident or is likely to cause alarm or distress to the resident.

Although the premises involved may be in use by any ‘individual’ (e.g. not a company) and the purpose may be to persuade that or any other ‘individual’, the officer must believe that the ultimate effect will be harassment, alarm or distress of the resident. The requirement for reasonable grounds means that their existence or otherwise will be judged objectively and not simply from the personal standpoint of the officer using the power. Nevertheless, the officer is given a great deal of individual discretion in using this power.

A direction given under s. 42 requires the person(s) to do all such things as the officer specifies as being necessary to prevent the harassment, alarm or distress of the resident, including:

• a requirement to leave the vicinity of the premises in question, and
• a requirement to leave that vicinity and not to return to it within such period as the constable may specify, not being longer than three months,
  and (in either case) the requirement to leave the vicinity may be to do so immediately or after a specified period of time (s. 42(4)).

The direction may be given orally and, where appropriate, may be given to a group of people together (s. 42(3)). There is no requirement that the officer giving the direction be in uniform.

The power under s. 42 cannot be used to direct someone to refrain from conduct made lawful under s. 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (Peaceful picketing).

Question 47

Knowingly Contravening a s. 42 Direction—Criminal Justice and Police Act 2001, s. 42(7)

Answer 47

• Triable summarily
• Three months’ imprisonment and/or a fine

The Criminal Justice and Police Act 2001, s. 42 states:
(7)
Any person who knowingly fails to comply with a requirement in a direction given to him under this section (other than a requirement under subsection (4)(b)) shall be guilty of an offence.

Question 48

Knowingly Contravening a s. 42 Direction

Answer 48

You will need to show that the person acted ‘knowingly’ in failing to comply with a requirement in a direction and that it was ‘given to them’. Generally the best proof of this will be to show that the person had received the direction (and the detail of its extent) personally and that he/she understood it. Therefore, although the section allows for directions to be given to groups, there may be practical benefits in giving personal directions where circumstances allow.

The reference to s. 42(4)(b) means a requirement to leave that vicinity and not to return to it within such period as the constable may specify, not being for a period longer than three months.

Question 49

Unlawfully Returning to Vicinity—Criminal Justice and Police Act 2001, s. 42(7A)

Answer 49

• Triable summarily
• Imprisonment for a term not exceeding six months and/or a fine

The Criminal Justice and Police Act 2001, s. 42 states:
(7A)
Any person to whom a constable has given a direction including a requirement under subsection (4)(b) commits an offence if he—
(a)
returns to the vicinity of the premises in question within the period specified in the direction beginning with the date on which the direction is given; and
(b)
does so for the purpose described in subsection (1)(b).

Question 50

Unlawfully Returning to Vicinity

Answer 50

The offence is committed where a person who is subject to a direction to leave the vicinity, returns within a period of up to three months (the precise length of time will be specified by the police officer) for the ‘purposes’ described at s. 42A(1)(b) (see para. 2.8.7.2)—representing to or persuading a person not to do something he/she is entitled to do, or to do something he/she is not obliged to do.

Question 51

Harassment of a Person in their Home—Criminal Justice and Police Act 2001, s. 42A

Answer 51

• Triable summarily
• Imprisonment for a term not exceeding six months and/or a fine

The Criminal Justice and Police Act 2001, s. 42A states:
(1)
A person commits an offence if—
(a)
that person is present outside or in the vicinity of any premises that are used by any individual (‘the resident’) as his dwelling;
(b)
that person is present there for the purpose (by his presence or otherwise) of representing to the resident or another individual (whether or not one who uses the premises as his dwelling), or of persuading the resident or such another individual—
(i)
that he should not do something that he is entitled or required to do; or
(ii)
that he should do something that he is not under any obligation to do;
(c)
that person—
(i)
intends his presence to amount to the harassment of, or to cause alarm or distress to, the resident; or
(ii)
knows or ought to know that his presence is likely to result in the harassment of, or to cause alarm or distress to, the resident; and
(d)
the presence of that person—
(i)
amounts to the harassment of, or causes alarm or distress to, any person falling within subsection (2); or
(ii)
is likely to result in the harassment of, or to cause alarm or distress to, any such person.
(2)
A person falls within this subsection if he is—
(a)
the resident,
(b)
a person in the resident’s dwelling, or
(c)
a person in another dwelling in the vicinity of the resident’s dwelling.

Question 52

Harassment of a Person in their Home

Answer 52

This offence has a number of elements, each of which must be proved if a successful prosecution is to be brought.

The ingredients include:

• Place—the defendant must be shown to have been in the relevant place (outside or in the vicinity of a ‘dwelling’). ‘Dwelling’ means any structure or part of a structure occupied as a person’s home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied (s. 42A(7)).
• Purpose—the defendant’s purpose in being there must be to represent to, or persuade the resident/another individual that he/she should not do something he/she is entitled/required to do or that he/she should do something that he/she is not under any obligation to do.
• Intention/knowledge—you must prove that the defendant intended his/her presence to amount to harassment of, or to cause alarm or distress to, the resident or that he/she knew/ought to have known that his/her presence was likely to have that result.
• Consequences—you must show that the defendant’s presence amounted to/was likely to result in the harassment of, or causing alarm or distress to, any resident, person in the resident’s dwelling, or person in another dwelling in the vicinity of the resident’s dwelling.

References in s. 42A(1)(c) and (d) to a person’s presence are references either to his/her presence alone or together with that of any other people who are also present (s. 42A(3)).

For the purposes of this section a person ought to know that his/her presence is likely to result in the harassment of, or to cause alarm or distress to, a resident if a reasonable person in possession of the same information would think that it was likely to have that effect (s. 42A(4)).