Stalking and Harassment

Question 1

A “course of conduct” is defined as

Answer 1

behaviour that occurs on two or more occasions, it can be targeted at one or more than one person.

This means that you cannot harass somebody as a “one off” event.

There is a further definition which states that if A and B decide to work together to harass C, then they only need to do it on one occasion each, so long as they know that their behaviour is likely to be alarming or distressing. This is because C will have been harassed on two or more occasions.

Question 2

What are the sections 1-5 of the Protection from Harassment Act 1997?

Answer 2

Harassment without violence (s 2)

Stalking (s 2a)

Civil remedies (s 3)

Putting people in fear of violence (s 4)

Stalking involving fear of violence or serious alarm or distress (s 4A)

Breaching a restraining order (s 5)

Question 3

What must the behaviour be to be seen as committing an offence against the Protection from Harassment Act 1997?

Answer 3

Must be oppressive, unreasonable and unacceptable, such as that displayed during an act of stalking, and be of the sort that a reasonable person would find harassing.

The perpetrator must know or ought to know this their actions are likely to have this effect.

Question 4

Can both people and companies/ corporate bodies be ‘harassed’?

Answer 4

(s 7(5))

No - only a person can be harassed.

Question 5

Under s 1(1) of the Protection from Harassment Act 1997, a person must not do what?

Answer 5

Pursue a ‘course of conduct’ which amounts to harassment of one (or more) persons, which the perpetrator knows or ought to know amounts to harassment.

It has to happen on more than one occasion.

Question 6

Under s 1(1) of the Protection from Harassment Act 1997, a ‘course of conduct’ exists when conduct is directed towards:

Answer 6

An individual on at least two occasions.

Two or more people, and on at least one occasion in relation to each of those persons (s 7(3)(b))

Question 7

Under s 1(1) of the Protection from Harassment Act 1997, a ‘course of conduct’ includes:

Answer 7

Speech, letters and emails so evidence will need to be gathered from a wide range of sources such as diary entries, emails, letters, photographs and interviews with witnesses.

Question 8

Section 2 of the Protection from Harassment Act 1997 –
Harassment without Violence

What does s 2(1) of the Protection from Harassment Act 1997 state?

Penalty?

Answer 8

A course of conduct;

Which amounts to harassment of another (can be one or more persons); and

Which the defendant knows, or ought to know amounts to harassment of another.

It is a summary-only offence, punishable by a maximum of 6 months’ imprisonment.

Question 9

Section 2 of the Protection from Harassment Act 1997 –
Harassment without Violence

Once initiated, does a person continue to pursue a course of conduct even when he/she does not personally harass the victim?

Answer 9

Yes - if they aid, abet, counsel or procure another who carries it out instead.

A person who’s starts a course of conduct is seen as continuing it even when the latter acts are carried out by someone else arranged by the suspect.

Question 10

Three defences are available to the section 2 offence:

Answer 10

That the course of conduct was pursued for the purpose of preventing or detecting crime

That it was pursued under any rule of law

That the pursuit of the course of conduct was reasonable

Question 11

Where are the offences of stalking covered?

Answer 11

s 2A of the Protection from Harassment Act 1997

Question 12

Section 2A of the Protection from Harassment Act 1997 –
Stalking

The elements of the section 2A offence are:

A person’s course of conduct amounts to stalking of another person if—

Answer 12

A person is guilty of an offence if—

• The person pursues a course of conduct in breach of section 1(1), and
• The course of conduct amounts to stalking.

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 13

Where are the penalties of section 2A offence stalking?

Answer 13

Triable summarily and the penalty is 6 months imprisonment and/ or a fine.

Question 14

If distress is caused on only one occasion does this constitute a course of conduct?

Answer 14

No - it may instead be the subject of a claim in civil proceedings under s 3(1) of the Protection from Harassment Act 1997.

Question 15

What offence is described in s 4 of the Protection from Harassment Act 1997?

Answer 15

Putting people in fear of violence, this includes sending insulting or abusive letters or emails.

The conduct must be targeted at an individual and be calculated to cause fear of violence. It must also be oppressive and unreasonable.

Question 16

Section 4 of the Protection from Harassment Act 1997 –
Putting people in fear of violence

The elements of the section 4 offence are:

Answer 16

A course of conduct;

• which causes another to fear that violence will be used against him; and
• which the defendant knows or ought to know will cause another to fear that violence will be used against him; and
• if a reasonable person in possession of the same information would think that the course of conduct would cause the other so to fear on that occasion.

Question 17

Section 4 of the Protection from Harassment Act 1997 –
Putting people in fear of violence

What defences are available to the section 4 offence:

Answer 17

• The course of conduct was pursued for the purpose of preventing or detecting crime;
• The 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
• Pursuit of the course of conduct was reasonable for the protection of him or herself or another or for the protection of her, his or another’s property.

Question 18

Under section 5 of the Harassment Act, a court can do what?

Answer 18

Place a restraining order of an indeterminate length on a person convicted or acquitted to protect a person from harassment.

Question 19

Under section 42 (1) of the Criminal Justice and Police Act 2001, a police officer can do what?

Answer 19

Give a direction, orally or in writing, to a person or group to leave the area for a specified period not exceeding three months in order to prevent them causing harassment alarm or distress to persons.

Question 20

Where are the penalties of section 4 offence?

Answer 20

Triable either way, penalty fine or 6 month imprisonment (summarily) or 10 years (indictment).

Question 21

What offence is described in Section 4A(1) of the Protection from Harassment Act 1997?

Answer 21

Stalking involving fear of violence or serious alarm or distress

Question 22

Section 4A of the Protection from Harassment Act 1997 –
Stalking involving fear of violence or serious alarm or distress

The elements of the section 4A offence are:

Answer 22

A course of conduct;

Which amounts to stalking; and

Which causes another to fear, on at least two occasions, that violence will be used against him or her; or
causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities (s 4A(1)(b)(ii))

Question 23

Section 4A(1) Stalking involving fear of violence or serious alarm or distress

There are two ways of committing this offence:

Answer 23

First, a course of conduct that amounts to stalking and causes the victim to fear, on at least two occasions, that violence will be used against them (not just possibility of).

Second, 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.

This limb recognises the overall emotional and psychological harm that stalking may cause to victims, even where an explicit fear of violence is not created by each incident of stalking behaviour.

Suspect must know (or ought to know) that his/her acts will have these effect on victim.

Question 24

The phrase “substantial adverse effect on … usual day-to-day activities” is not defined in section 4A and thus its construction will be a matter for the courts.

However, the guidelines issued by the Home Office suggest that evidence of a substantial adverse effect may include the following:

Answer 24

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

Question 25

Where are the penalties of section 4A offence?

Answer 25

Triable either way, penalty fine or 12 month imprisonment (summarily) or 10 years (indictment).

Question 26

A court can make a restraining order under what act?

Answer 26

s 5 of the Protection from Harassment Act 1997 against a person who has been convicted (s 5(1)) or acquitted (s 5A) of any offence, to protect a person from harassment.

Question 27

What does a restraining order…restrain.

Answer 27

• Not (either alone or by means of agents) to directly or indirectly contact, harass, alarm, or distress the victim (and others).
• Not to knowingly approach within the boundary of any premises where the victim and others as appropriate reside, work or frequent;
• Not to telephone, fax, communicate by letter, text, electronic mail or internet with the victim and others as appropriate, or to send or solicit any correspondence whatsoever;
• Not to display any material relating to the victim on social networking sites including YouTube, Facebook and Twitter;
• Not to retain, record or research by any means, private, confidential or personal facts, or information relating to the victim and others as appropriate; or
• Not to use a different name or to change names without immediately notifying the court and/or the police.

Question 28

Other acts that consist harassment include:

Answer 28

Assisting or planning the course of conduct with another will also amount to the offence, even if the assisting party does not actually carry out the act themselves.

‘Collective’ harassment which is directed at members of a group, e.g. residents of a neighbourhood, groups of a specific identity including ethnicity or sexuality or people with disabilities.

Harassment of an individual can occur when a person is harassing others connected with that individual, e.g. family, friends, employees, knowing this behaviour will affect their victim. This is known as ‘stalking by proxy’.

Question 29

Any Harassment or Stalking offence can also be racially or religiously aggravated and is punishable by…

Answer 29

up to two years imprisonment. It comes under the discretion of the Magistrates Court whether to escalate to the Crown Court, as it falls under ‘Either Way’ offences.

Question 30

Harassment with Fear of Violence

This is the more serious form of the offence in which the victim must believe that they are going to be subjected to violence as part of the “course of conduct” being pursued by the suspect. It is contrary to s4 Protection from Harassment Act 1997.

The offence is essentially the same as that under s2, but there are three key differences:

Answer 30

the victim must believe that the violence will happen

the victim must fear the violence personally

the fear of violence cannot be conveyed by a third party

Question 31

SMITH appears in the Crown Court accused of an offence of ‘Putting People in Fear of Violence’ Contrary to s4 of the Protection from Harassment Act 1997 however the jury find him not guilty of this offence. Could the court still find SMITH guilty of harassment contrary to section 2 of the Protection from Harassment Act as an alternative, even if he has not been charged with this offence?

Answer 31

Yes. S4(5) of the Protection from Harassment Act 1997 states: “If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2 or 2A”

Question 32

DEMPSEY and MAKEPEACE are boyfriend and girlfriend however an argument takes place during which, DEMPSEY slaps MAKEPEACE across the face. The relationship ends. Four months later, MAKEPEACE is in a new relationship when DEMPSEY turns up and threatens violence against MAKEPEACE’S new boyfriend. Could the 2 incidents amount to a course of conduct toward an offence contrary to s2 of the Protection from Harassment Act 1997?

Answer 32

No.

For a course of conduct there only needs to be a minimum of two incidents however the fewer incidents and the further apart they are spread makes it less likely to constitute a course of conduct.

For an offence under s2 of the Protection from Harassment Act 1997, the courts are looking for a pattern of behaviour where the offender has embarked upon a sequence of events which harasses another.

In any case, the first incident happened whilst they were still in a relationship, so it could not be shown that this was done to the girlfriend and the second was directed toward the new boyfriend.

Question 33

BURNSIDE is the ex-husband of ACKLAND. BURNSIDE is in court charged with an offence of stalking, contrary to s4a of the Protection form Harassment Act 1997. However, on the day of the trial, ACKLAND attends court and tells the prosecutor she is too fearful to give evidence and if compelled, she will only speak favourably of BURNSIDE so as not to make him angry. The prosecutor decides to offer no evidence as it is deemed there is no realistic prospect of conviction and the case is discontinued. Could the court still make a restraining order to protect ACKLAND from BURNSIDE?

Answer 33

Yes.

S5A of the Protection from Harassment Act 1997 states: “A court before which a person (‘the defendant’) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.”

An ‘acquittal’ under section 5A of the PHA 1997 means any occasion when proceedings are dismissed following the hearing of evidence at trial.

Question 34

You are speaking to BROWLOW who tells you that one of his patients, CONWAY, will not stop bothering him; he has been receiving emails to his work email address from an unknown sender containing random words and a gift (a stuffed cat) has been sent to his home address. BROWNLOW tells you that CONWAY has been following him in his car and has also seen him loitering outside his home at night. BROWNLOW lives 80 miles from CONWAY. He has also been receiving “friend requests” to his Facebook account from unknown users and CONWAY repeatedly books appointments at the surgery, specifically asking to see DR. BROWNLOW. The behaviour started shortly after CONWAY made a complaint about BROWNLOW that he had not listened to him properly during a consultation 5 months ago. BROWNLOW is at his wits end and feels scared to leave his home. He has changed his routes to and from work and has had to take time off work due to suffering anxiety. With regards to crime recording, what would be the most appropriate action to take?

Answer 34

Record a crime contrary to s4a of the Protection from Harassment Act 1997.

There are clear indications that CONWAY is fixated / obsessed with BROWNLOW which suggests an offence contrary to either 2a or 4a has been committed.

CONWAY is investing a disproportionate amount of time, effort and resources in pursuit of BROWNLOW. He lives 80 miles away and is following him. Whilst some of the alleged incidents have not yet been attributed to CONWAY, there are reasonable lines of enquiry to pursue.

The alleged behaviour is having a substantial adverse effect on BROWNLOW’S day to day activities therefore it would be appropriate to identify this case as stalking and record a crime contrary to s4a of the Protection from Harassment Act 1997.

Question 35

Section 3 of the Protection from Harassment Act 1997 –
Civil remedies

What is a civil remedy?

Answer 35

A civil remedy refers to the remedy that a party has to pay to the victim of a wrong he commits.

If distress is caused on only one occasion it may instead be the subject of such a claim.

Could result in a court order to pay money and/or an injunction (a court order to impose sanctions on the offender).

Question 36

Section 3 of the Protection from Harassment Act 1997 –
Civil remedies

Penalties for breaching civil remedies?

Answer 36

Penalty: If an injunction is breached, the offence committed is triable either way, penalty fine or 6 month imprisonment (summarily) 5 years indictment.

Question 37

What else may be given out to offences of harassment when it is caused on only one occasion?

Answer 37

‘First Incidence Harassment Warning’?

This is an official written warning issued by the police which informs the perpetrator that any further incidents may form part of a course of conduct = prosecution for harassment offences.

Question 38

Section 4 of the Protection from Harassment Act 1997 –
Putting people in fear of violence

Penalty

Answer 38

Summarily: max 6 months imprisonment or a fine, or both.

Indictment: max 10 years imprisonment or a fine, or both.

Question 39

Section 5 of the Protection from Harassment Act 1997 –
Breaching a restraining order

What is it?

Answer 39

A court sentencing a person convicted of an offence may (as well as sentencing him or dealing with him in any other way) may also make an order for the purpose of protecting the victim/s conduct which –
Amounts to harassment, or
Will cause a fear of violence

Prohibit the defendant from doing anything described in the order.

Question 40

Section 5 of the Protection from Harassment Act 1997 –
Breaching a restraining order

Penalty of Breach:

Answer 40

Triable either way, penalty fine or 6 month imprisonment (summarily) or 5 years (indictment).

Question 41

FETIGAN has written threatening letters to each of four of his neighbours. PC IRELAND has been sent to speak to the neighbours who contacted the police to complain about FETIGAN’s behaviour. Each neighbour has received one threatening letter and although none of the letters include threats of violence, all of the neighbours are upset by the contents. PC IRELAND is considering whether sending the letters to the neighbours amounts to a ‘course of conduct’ for the purposes of an offence of harassment (under s. 1(1) of the Protection from Harassment Act 1997).

Would FETIGAN’s behaviour amount to such a ‘course of conduct’?

Answer 41

Yes, each of the letters sent to the four neighbours amounts to a ‘course of conduct’.