Harassment Act 1997

The protection from Harassment Act 1997 was put in place to try to ensure that persons could operate free from serious harassment by others.

It has been, in my view, one of the most systematically misused pieces of legislation on the statute books. If you would care to have a look at Hansard, the record of Parliamentary debates you would see that the Act was specifically designed to be a safeguard against stalkers, malicious co-workers and perpetrators of domestic violence.

Unfortunately in recent years it has descended into a battleground involving petty disputes between individuals, things such as neighbourhood disputes that have got out of hand or as a means of pursuing a vendetta against someone. Often it is the person who complains to the police longest and loudest who manages to get this prosecution launched in circumstances where no criminal prosecution should reasonably be launched.

Mostly prosecutions are often brought under section 2 of the Protection from Harassment Act 1997 which states:

(1)   A person who pursues a course of conduct in breach of section 1 is guilty of an offence […]

Section 1 in turn provides:

(1) A person must not pursue a course of conduct—

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

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

A prosecutor therefore had to prove each of the following elements of the offence:

(a)   a course of conduct

(b)   which amounted to harassment of another; and

(c)    the defendant knew or ought to have known that this conduct amounted to harassment of another.

In relation to proving a “course of conduct”, section 7 of the Act provides a definition as “in the case of conduct in relation to a single person … conduct on at least two occasions in relation to that person.” There must therefore be two acts identified which constitute the course of conduct. Further, these should be particularised in the information laid or indictment: (C v. CPS [2008] EWHC 148 (Admin).

In Pratt v. DPP [2001] The Court recommended that the prosecution should be cautious about using the offence of harassment where complaint is made of only a small number of incidents. This recommendation appears to have gone largely ignored.

The authorities make it clear that the course of conduct must amount to harassment. In R v. Curtis [2010] EWCA Crim 123, the Court of Appeal considered an appeal against conviction in the case of a section 4 harassment conviction. In that case, the course of conduct was alleged to consist of a series of six incidents, over the course of nine months during a volatile relationship where there had been aggression on both sides.

The Court of Appeal allowed the appeal as the judge’s summing up had concentrated on whether there had been a course of conduct without reference to whether such a course of conduct amounted to harassment. In finding that the judge had not directed the jury that is was necessary for the Crown to establish that the course of conduct amounted to harassment, the Court cited with approval Lord Nicholls in Majrowski v. Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224:

Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the 'close connection' test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.

The offence proscribed by section 2 is not meant to capture irritations, even those that cause a measure of upset. Nor is an ‘unreasonable’ course of conduct with nothing else capable of making out the section 2 offence. The conduct needs to be “oppressive and unacceptable” such as it should attract “criminal liability.”

Despite this the offence of harassment is one which is easy to bring but difficult to defend against. It is not uncommon for a defendant to find that the legal system has been manipulated by someone with a grudge against them so that they find themselves subject to charges in the criminal courts.

If this has happened to you or you find yourself accused of harassment you will need specialist legal advice at an early stage. Get in touch with Quentin to see how my knowledge and experience in this area could assist you.