Hatred and Harassment Offences

Question 1

OFFENCES INVOLVING RACIAL RELIGIOUS OR SEXUAL ORIENTATION HATRED

Answer 1

• Use Of Words, Behaviour, Or Display Of Written Material - Section 18 Public Order Act 1986;
• Publishing Or Distributing Written Material - Section 19 Public Order Act 1986;
• Use Of Threatening Words, Behaviour Or Display Of Written Material - Section 29B Public Order Act 1986;
• Publishing Or Distributing Threatening Written Material - Section 29C Public Order Act 1986; and
• Hatred On The Grounds of Sexual Orientation - Section 74 Criminal Justice and Immigration Act 2008.

Question 2

Racial hatred

Answer 2

Definition Of Racial Hatred
Hatred against a group of persons defined by reference to
either:
* Colour;
* Race;
. Nationality
* Ethnic origins; or
* National origins.

Question 3

Religious hatred

Answer 3

Definition Of Religious Hatred
Hatred against a group of persons defined by reference
to their:
* Religious belief; or
* Lack of religious belief.

Question 4

Sexual orientation hatred

Answer 4

Definition Of Sexual Orientation
Hatred
Hatred against a group of persons defined by reference
to their sexual orientation, be they:
* Heterosexual;
* Homosexual; or
* Bi-sexual.

Question 5

Use Of Words,
Behaviour, Or Display
Of Written Material
Section 18 Public Order Act 1986

Answer 5

Prohibited Actions?
An offence will be committed by a person who either:
* Uses words or behaviour; or
* Displays any written material…

The Nature Of The Actions?
.that is either:
* Threatening;
* Abusive; or
* Insulting.

Purpose Or Effect Of The
Actions?
,provided the person either:
* Intends to stir up racial hatred; or
* Having regard to all the circumstances - racial hatred is
likely to be stirred up.

Where Can The Offence Be
Committed?
The offence can be committed in either:
* A public place; or
* A private place.

Dwelling Defence
2 steps

Step 1
Either:
* The words or behaviour are used; or
* The written material is displayed;
.by a person inside a dwelling…

step 2
-and they are not heard or seen - except by another
person who is either:
* In the same dwelling; or
* In another dwelling.

Authority To Prosecute
Attorney General
or
Solicitor General

Question 6

Publishing Or
Distributing Written
Material
Section 19 Public Order Act 1986

Answer 6

Prohibited Actions?
An offence will be committed by a person who either:
* Publishes; or
* Distributes;
written material to either:
* The public; or
* A section of the public.

The Nature Of The Written
Material?
.that is either:
* Threatening;
* Abusive; or
* Insulting.

Purpose Or Effect Of The
Actions?
.provided the person either:
* Intends to stir up racial hatred; or
* Having regard to all the circumstances - racial hatred is likely
to be stirred up.

Defence
A person will have a defence if they can prove that both
* They were not aware of the content of the material; and
* Did not suspect and had no reason to suspect that it was
either threatening, abusive, or insulting

Authority To Prosecute
Attorney General
or
Solicitor General

Question 7

Use Of Words
Behaviour Or Display
Of Written Material
Section 29B Public Order Act 1986

Answer 7

An offence will be committed by a person who - intending to stir
up either:
* Religious hatred; or
* Hatred on the grounds of sexual orientation
.either:
* Uses words or behaviour; or
* Displays any written material
.that is threatening.

Where Can The Offence Be
Committed?
The offence can be committed in either:
*A public place; or
* A private place.

Dwelling Defence
2 steps

Step 1
Either:
* The words or behaviour are used; or
* The written material is displayed;
.by a person inside a dwelling…

step 2
-and they are not heard or seen - except by another
person who is either:
* In the same dwelling; or
* In another dwelling.

Authority To Prosecute
Attorney General
or
Solicitor General

Question 8

Publishing Or
Distributing Written
Material
Section 29C Public Order Act 1986

Answer 8

The Nature Of The Intent?
An offence will be committed by a person who -
intending to stir up either:
* Religious hatred; or
* Hatred on the grounds of sexual orientation.

2 Prohibited Actions?
.either:
* Publishes; or
* Distributes
.written material..

Directed Towards?
.to either:
* The public; or
* A section of the public
.that is threatening.

Authority To Prosecute
Attorney General
or
Solicitor General

Question 9

Hatred On The Grounds
of Sexual Orientation
Section 74 Criminal Justice and Immigration Act 2008

Answer 9

Section 74 Criminal Justice and Immigration Act 2008
extends the offences of hatred
to cover hatred against people
on the grounds of sexual orientation.

Question 10

HARASSMENT & STALKING OFFENCES

Answer 10

• Harassment - Section 1(1) & 1A Protection From Harassment Act 1997;
• Harassment Amounting To Stalking - Section 2A Protection From Harassment Act 1997;
• Putting People In Fear Of Violence - Section 4 Protection From Harassment Act 1997; and
• Stalking Involving Fear Of Violence Or Serious Alarm Or Distress - Section 4A Protection From Harassment Act 1997.

Question 11

HARASSMENT

2 OFFENCES

Answer 11

There are 2 harassment offences:
* Section 1(1) Protection From Harassment Act 1997; and
* Section 1A Protection From Harassment Act 1997.

Question 12

Offence 1 -
Harassment
Section 1(1) Protection From Harassment Act 1997

Answer 12

A person will commit an offence if they:
Pursue a course of conduct (on at least 2 occasions);
That amounts to harassment of another - (i.e. causing a person
alarm or distress):
Which they either:
* Know - (subjective awareness); or
* Ought to have known - (objective test);
would amount to harassment of the other.

Question 13

Offence 2

Answer 13

A person will commit an offence if they pursue a course of
conduct which:
* Involves harassment of 2 or more persons; and
* They either know or ought to know involves the harassment of
those persons;
* By which they intend to persuade any person either:
* Not to do something that they are entitled to do; or
* To do something that they are under no obligation to do.

What Amounts To An Act Of
Harassment?
Harassment includes either:
* Alarming a person; or
* Causing the person distress.

Is The Result Of The Person Being
Either Alarmed Or Distressed
Required?
No
It is simply a matter of the offender
pursuing a course of conduct
which would lead to this consequence.

Course Of Conduct - Section 1(1)
PHA 1997 Offence
Conduct
on at least 2 occasions
in relation to
that person.

Course Of Conduct - Section
I(IA) PHA 1997 Offence
Conduct
on at least one occasion
in relation to
each of those persons.

Need The Individual Acts Of
Harassment Be Of The Same Nature
To Amount To A Course Of Conduct?
No
For example - a course of conduct could involve sending
alarming letters and damaging property.

Can The Course Of Conduct Be
Directed To More Than One
Victim In Each Instance?
Yes
R v Williams [1998] 64 JOCL 299

Is It Possible For Acts Of
Harassment To Be Passed On Via
A 3rd Party?
Yes
R v Kellet [2001] AllER (D) 124

Can A Company Be The Victim Of
Harassment?
No

Can The Employees Of A
Company Be The Victim Of
Harassment?
DPP v Dziurzynski (20021 166 JP 545

Can A Company Commit The
Offence Of Harassment?
Yes
Majrowski v Guy’s and St. Thomas’s NHS Trust [2005] QB 848

Racially And Religiously
Aggravated Harassment
The aggravating feature
must be proved in relation to
each instance
of the course of conduct.

Question 14

3 Defences
Section 1(3) PHA 1997

Answer 14

Defence 1
The course of conduct was carried out for the purpose
of either:
* Preventing crime; or
* Detecting crime.

Defence 2
The course of conduct
was carried out under a
rule of law.

Defence 3
The course of conduct
was reasonable.
This is a question of fact
applying an
objective reasonable person test.

Question 15

Harassment Amounting
To Stalking
Section 2A Protection From Harassment Act 1997
3 steps

Answer 15

Step 1
A person
pursues a course of conduct
amounting to harassment
- under section 1(1) PHA 1997.

step 2
The acts or omissions
of the course of conduct
are carried out
via stalking activities.
i.e. the harassing occurs via stalking.

step 3
The defendant either:
* Knew; or
* Ought to have known
…that their conduct amounted to harassment.

Question 16

Examples Of
Stalking Activities
Section 2A(3) Protection From Harassment Act 1997

Answer 16

Examples
* Watching a person
* Following a person.
* Loitenng
* Interfenng With a person’s property.
* Monitoring a person’s electronic communication-
* Publishing materjal that relates or purports to relate to a person.

Question 17

3 Defences
Same as those applicable to the basic
harassment offence

Answer 17

Defence 1
The course of conduct was carried out for the purpose
of either:
* Preventing crime; or
* Detecting crime.

Defence 2
The course of conduct
was carried out under a
rule of law.

Defence 3
The course of conduct
was reasonable.
This is a question of fact
— applying an
objective reasonable person test.

Question 18

Police Power Of
Entry For The
Stalking Offences

Answer 18

Who Can Apply To The Magistrates
For A Warrant For Search & Entry?
A constable.

Ground For Issuing A Warrant?
There are reasonable grounds to believe a stalking offence has been
made out.

Scope Of The Powers Under The
Warrant?
The constable may use force to:
* Execute the warrant to enter and search; and
* Seize and retain any relevant material.

Racially And Religiously
Aggravated Stalking
The aggravating feature
must be proved in relation to
each instance
of the course of conduct

Question 19

Putting People
In Fear Of
Violence
Section 4 PHA 1997

Answer 19

Actus Reus
* Cause another to fear;
* On at least 2 occasions;
* That violence will be used
against them.

Mens Rea
* Either:
* Knows; or
Subjectively aware
* Ought to know;
Objective
test
* That their course of conduct:
* Will cause them fear;
* On each occasion.

Course Of Conduct?
Cause a person to fear
on at least g instances
that violence will be used
against them.

Result Of Fear Required?
Yes
On each occasion.

To Whom Must The Fear Of
Violence Relate?
Victim (yes)
3rd Party (no)
Mohammed Ati Caurti v DPP

Threats Of Future Action?
The violence can be in the
future as long as the fear
of it is in the present
tense —
i.e. - at the time of the
threat.

Mens Rea?
It is irrelevant whether the
accused was subjectively
aware that their conduct caused
fear.

Reasonable man test

Question 20

Defences

Answer 20

Defences?

Course of conduct was carried out either

Defence 1

For the purpose of either preventing crime or detecting crime

Defence 2

Under a rule of law

Defence 3

The conduct was reasonable for the protection of either themselves, another or property

Certification has been provided by the Secretary of State that a specified person, on a specified occasion; who was acting on behalf of the crown acted in relation to either.

Activity 1

National security

Activity 2

The economic well being of the UK

Activity

Prevention of detection of serious crime

Question 21

Stalking Involving Fear
Of Violence Or Serious
Alarm Or Distress
Section 4A Protection From Harassment Act 1997

Answer 21

Definition
An offence will be committed by a person
if they carry out a course of conduct
amounting to stalking
— which has either of 2 effects.

Effect 1
Causes another person
to fear,
on at least 2 occasions,
that violence will be used
against them.

Effect 2
Causes another person
serious alarm or distress
that has a substantial adverse effect
on their day to day activities
(i.e. they have to alter their behaviour to avoid the stalker
or their wellbeing is affected by the stalking)

.provided the stalker — either:
* Knew - (subjectively aware); or
* Ought to have known - (objective reasonable person
test).

.that their conduct will have caused the victim on
each occasion the result of either:
* Fear; or
* Suffering alarm or distress.

Racially And Religiously Aggravated
Offence Of Stalking Involving Fear Of
Violence Or Serious Alarm Or
Distress
The aggravating feature
must be proved in relation to
each instance
of the course of conduct.

Question 22

COURT POWERS TO COUNTER HARASSMENT

Answer 22

2 POWERS
Courts have the power to impose:
POWER 1 – INJUNCTIONS
Applications made to civil courts – applied for prior to conviction for harassment.
POWER 2 - RESTRAINING ORDERS
Imposed by criminal courts - following conviction for an offence of either:
* Harassment; or
* Putting people in fear of violence.

Question 23

Injunctions
Section 3 & 3A Protection From Harassment Act 1997

Answer 23

Where Can The Application Be
Lodged?
An application can be lodged for an injunction at
either:
* High Court; or
* County Court.

Who Can Lodge The Application?
The victim of either:
* An actual breach; or
* An apprehended breach
.0f either:
* Harassment; or
* Harassment by stalking.

Section 1 & 2A PHA 1997
Applicants
The application will be lodged by person who
is or may be
the victim
of the
course of conduct.

Section IA PHA 1997 Applicants
The application will be lodged by either:
* The person who is or may be the victim of the course of
conduct;
* The person who the perpetrator intends to persuade not do
something that they are entitled or required to do; or
* The person who the perpetrator intends to persuade to do
something they are not obliged to do.

The Standard Of Proof?
The applicant will have to establish
the grounds
for the application on the
balance of probabilities.

Question 24

Application For A
Warrant For Arrest In
The Event Of The
Breach Of An
Injunction
Section 3 Protection From Harassment Act 1997

Answer 24

Basis Of An Application For A
Warrant For Arrest By The Plaintiff?
2 steps

Step 1
An injunction has been granted
- for the purpose of restraining the defendant
from pursuing a course of conduct
which amounts to harassment.

step 2
The plaintiff considers that the defendant has
done anything
which they are prohibited from doing
by the injunction.

Who Can Issue The Power Of
Arrest?
Either a:
* Judge; or
* District Judge
.to whom an application is made.

Grounds For Issuing A Power Of
Arrest?
Both:
* The application is substantiated on oath; and
* They have reasonable grounds for believing that the
defendant has done anything which he is prohibited
from doing by the injunction.

Consequences Of A Warrant For
Arrest Being Granted?
This is the point at which the police get involved
— up until this juncture the matter will have been
exclusively of a civil nature.
The role of the police will be
to bring the defendant before the court
for the alleged breach to be considered.

Question 25

When Will The Person Arrested
Under Warrant Be Deal With By The
Civil Court?
2 options

Answer 25

Option 1
The person arrested under warrant will be:
* Brought before the court; and
* Dealt with at the time of their appearance.

Option 2
The court may adjourn proceedings
and
release the defendant
to deal with them thereafter
within 14 days of their arrest.
If so the defendant must be given at least 2 days’ notice
of the adjourned hearing.

Question 26

Breach Of An
Injunction
Section 3(6) Protection From Harassment Act 1997
2 steps

Answer 26

Step 1
The
High Court or County Court
has granted
an injunction.

step 2
The defendant has,
without reasonable excuse,
done anything
which they are prohibited from doing
by the injunction.

Question 27

RESTRAINING ORDERS

Answer 27

Post Conviction Power Of Criminal
Courts To Impose A Restraining
Order
A criminal court either:
* Sentencing;
* Otherwise dealing
with a person convicted Of an offence Of either:
* Harassment; or
* Putting people in fear of violence..

Scope Of The Court’s Powers?
.will have the power to impose both:
* A sentence for the offence; and
* A restraining order.

Who Can Be Protected By The Restraining
Order?
Either:
* The victim(s) of an offence of either:
* Harassment; or
* Putting people in fear of violence
* Any other person specified in the order.

What Are They Protected From?
.from conduct which either:
* Amounts to harassment; or
* Will cause fear of violence.

Duration Of The Order?
The court may prohibit the person convicted - from doing
anything specified in the order for either:
* A specified period; or
* Until further order.

Who Can Apply To Vary Or
Discharge A Restraining Order?
The application can be made to the criminal court that initially
imposed the order — by either:
* The prosecutor;
* The defendant; or
* Any other person mentioned in the order.

Can A Restraining Order Be Made Or
Extended For An Indefinite Period?
Yes
R v Debnath (2005) EWCA Crim 3472

Question 28

Breach Of A
Restraining Order
Section 5(5) Protection From Harassment Act 1997
3 step test

Answer 28

Step 1
A restraining order
was in force
upon the defendant.

step 2
The defendant has
done anything
which they are prohibited from doing
by the terms of the
restraining order.

Step 3
The defendant
did not have
a reasonable excuse
for breaching the terms
of the
restraining order.

Will The Defendants Subjective
Belief Be Relevant In
Determining Whether They Have
A Reasonable Excuse?
Yes

Question 29

RESTRAINING ORDERS WHERE THE PERSON HAS BEEN ACQUITTED AT COURT

Answer 29

Section 12 of the DVCVA 2004 introduced section 5A into the PHA 1997, which allows the court to make a restraining order after acquitting a defendant of any offence if the court considers it necessary to do so to protect a person from harassment from the defendant.
Unlike restraining orders on conviction, there is no power to protect a person from fear of violence that falls short of harassment where the defendant has been acquitted.
Section 5A was introduced to deal with those cases where there is clear evidence that the victim needs protection, but there is insufficient evidence to convict on the particular charges before the court.
It is still open to the victim to seek a non-molestation order or injunction from a civil court. However, this more proactive approach on the part of the courts using section 5A is seen as not only avoiding delay and increased costs to the legal aid budget, but also providing a more seamless process of providing protection to victims.
Section 5A only applies where there has been an acquittal. It does not apply where proceedings have been withdrawn or discontinued - this is a very important legal point.
An “acquittal” under section 5A of the PHA 1997 means any occasion when proceedings are dismissed following the hearing of evidence at trial. This interpretation of the word would also include the situation when the prosecution offers no evidence with regard to the substantive charge: R (O) v Stratford Youth Court [2004] EWHC 1553 (Admin).
The effect of section 17 of the Criminal Justice Act 1967 is that where a prosecutor offers no evidence against a defendant who has pleaded not guilty to an indictable offence in the Crown Court, the court may order that a verdict of not guilty is recorded, and this has the same effect as if the defendant had been tried and acquitted.
On a summary trial, where a charge is dismissed following the prosecution’s decision to offer no evidence, this would be regarded as an acquittal for the purposes of the doctrine of “autrefois acquit”.
Applying this logic to section 5A (1), it is arguable that the reference to a court before which the defendant is acquitted of an offence should be read to include a court before which the prosecution offered no evidence and a charge was dismissed. Although the point has not been specifically argued before the appellate courts, a line of authorities has begun to emerge in which implicit approval has been given to the practice of imposing a restraining order following the offering of new evidence by the prosecution.

Question 30

Police Directions To
Prevent Intimidation
Outside Dwellings
Section 42 Criminal Justice & Police Act 2001

Answer 30

Who Can Make A Direction?
The
most senior ranking police officer
at the scene.

Who The Direction Can Be
Directed Towards?
Persons present
in the vicinity
of an occupied dwelling (NB not business premises)
posing specific risks
to the resident or other persons.

Grounds For Making A Direction?
The constable believes, on reasonable grounds
(objective test) - that the persons are in the vicinity of
the dwelling for the purpose of either:
* Representing to; or
* Persuading…

.either:
* The resident; or
* Anybody else…

.to either:
* Not do something that they are entitled or required
to do; or
* Do something that they are not under an obligation
to do.

.and the constable also believes, on reasonable
grounds (objective test) - that the person’s presence
either:
* Amounts to harassment of the resident;
* Is likely to result in harassment of the resident; or
* Is likely to cause alarm or distress to the resident.

Terms Of The Direction
The officer (who need not be in uniform) - can orally
direct either:
* An individual person; or
* Groups of persons
.in the vicinity of the residential premises.

.to do anything that they deem necessary to prevent
the resident from suffering either:
. Harassment;
* Alarm; or
* Distress…

which may include:
* A direction to leave the vicinity of the premises either:
* Immediately; or
* Within a specified period.
* Not to return to the vicinity of the premises for a
period specified by the constable — for up to 3
months.

Question 31

Knowingly
Contravening A
Direction
Section 42(7) Criminal Justice & Police Act 2001
4 steps

Answer 31

Step 1
The person
had been
given a direction.

step 2
The person
has received
the direction.
NB — make sure any group direction has been received
by the individual in breach.

Step 3
The person
understood
the direction.

Step 4
The person
knowingly
failed to comply
with the
terms of the direction.

Question 32

Unlawfully Returning
To The Vicinity
Section 42(7A) Criminal Justice & Police Act 2001
2 steps

Answer 32

Step 1
An offence will be committed by a person who is subject to a
direction - to:
* Leave; and
* Not to return for a specified period
..if they return to vicinity of the premises - within the
specified period…

step 2
.and do so for the purpose of either:
* Representing to; or
* Persuading
.either:
* The resident; or
* Anybody else (who need reside at the dwelling)..

.to either:
* Not do something that they are entitled or required to do; or
* Do something that they are not under an obligation to do.

Question 33

Harassment Of A
Person In Their Home
Section 42(A) Criminal Justice & Police Act 2001
4 steps

Answer 33

Step 1 - Location
The person (offender) is present either:
* Outside; or
* In the vicinity
Of dwelling premises.

Step 2 - Purpose
The person (offender) is present for the purpose of either:
* Representing to; or
* Persuading
.either:
* The resident; or
* Anybody else - (who need reside at the dwelling)..

.to either:
* Not do something that they are entitled or required to do; or
* Do something that they are not under an obligation to do.

Step 3 - Mens Rea
The person (offender) either:
* Intends their presence to amount to causing; or
* Either:
* Knows; or
* Ought to know
.that their presence is likely to result in.

.either:
* Harassment;
* Alarm; or
* Distress
.to the resident.

Step 4 — The Consequence
The presence of the offender in the vicinity either:
* Amounts to or causes; or
* Is likely to result in..
.either:
* Harassment;
* Alarm; or
* Distress…

.to either:
* The resident;
* A person located in the resident’s dwelling; or
* A person located in another dwelling in the vicinity of the
resident’s dwelling.