Provisions
Section 1
This section prohibits a person from pursuing "a course of conduct" which "amounts to harassment of another" and which "he knows or ought to know amounts to harassment of the other". A person is taken to know that conduct is harassment if "a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other". The Protection of Freedoms Act 2012 inserted the offence ofSubsection 1(1A)
Subsection 1(1A) was inserted by section 125(2)(a) of the Serious Organised Crime and Police Act 2005. It prohibits a person from pursuing a course of conduct "which involves harassment of two or more persons" with the intention of persuading any person (not necessarily one of the persons harassed) to do or refrain from doing something they are lawfully entitled to do or not do. According to Baroness Scotland of Ashall, promoting the Bill in the House of Lords, this provision and the associated provisions of section 3A were intended to strengthen "the protection afforded to the bioscience industry, and those who work in it" including by "making it an offence to protest outside a person's home in a way that causes harassment, alarm or distress to the residents of that home."Section 2
This section creates the offence of harassment, which is to pursue "a course of conduct" in breach of section 1 of the Act. It is a summary offence. A person guilty of this offence is liable on conviction to imprisonment for a term not exceeding six months, or a to fine not exceeding level 5 on the standard scale, or to both. Section 2(3) was repealed by section 107 of, and Schedule 8 to, the Police Reform Act 2002.Section 2A
The Protection from Harassment Act 1997 did not originally define "stalking" or formally proscribe it. This section creates a specific offence of stalking. It followed a commitment given by the Prime Minister, David Cameron, on 8 March 2012 ( International Women's Day) to remedy perceived deficiencies in the Act. The offence created by this section is a summary offence and a person guilty of it is liable on conviction to imprisonment for a term not exceeding 51 weeks, or to a fine not exceeding level 5 on the standard scale, or to both. This section was inserted by section 111(1) of the Protection of Freedoms Act 2012.Section 2B
This section, which confers, on justices of the peace, a power to issue a search warrant to allow constables to enter and search premises for evidence of offences under section 2A, was inserted by section 112 of the Protection of Freedoms Act 2012.Section 3
This section provides for a claim in civil proceedings (creating a statutorySection 3A
This section provides similar injunction provisions to those in section 3, but in this case applying to the offence created by section 1(1A). However, in addition to it allowing the person who is the victim or who may be the victim of the conduct in question to seek an injunction, it also gives a similar right to someone whose behaviour the harassment is intended to influence. Section 3A was inserted by section 125(5) of the Serious Organised Crime and Police Act 2005.Section 4
This section creates the offence of "putting people in fear of violence" where a person "causes another to fear, on at least two occasions, that violence will be used against him" provided "he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions". There are a number of defences. These include showing that the course of conduct is pursued for the "purpose of preventing or detecting crime" or "reasonable for the protection of himself or another or for the protection of his or another’s property." In 2001, David Ormerod said that this section "could have been drafted more clearly all round". Offences under section 4 are triable either way. A person guilty of an offence under section 4 is liable, on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.Section 4A
This section creates the offence of stalking involving fear of violence or serious alarm or distress. This requires there to be a person A whose "course of conduct ... amounts to stalking" and a person B who is affected by the course of conduct. The course of conduct must either cause B "to fear, on at least two occasions, that violence will be used against B" or causes B "serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities". Offences under section 4A are triable either way. A person guilty of an offence under section 4A is liable, on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the statutory maximum, or to both. This section was inserted by section 111(2) of the Protection of Freedoms Act 2012. The stalking element is defined as include acts like monitoring a person online, contacting a person, loitering in a public or private place, interfering with property or spying/watching a person.Section 5
This section gives a court dealing with a person convicted of an offence under sections 2 (harassment) or 4 (putting in fear of violence) of the Act the power to make a restraining order for the purpose of protecting "the victim of the offence" or "any other person mentioned in the order". Offences under section 5 are triable either way. A person guilty of an offence under section 5 is liable, on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both. This section has effect in relation to a person convicted of an offence under section 32 of the Crime and Disorder Act 1998 as if the reference in subsection (1) of this section to an offence under section 2 or 4 included a reference to an offence under the said section 32. Section 5(3A) was inserted by section 12(2) of the Domestic Violence, Crime and Victims Act 2004. Section 5(4A) was inserted by section 12(3) of the Domestic Violence, Crime and Victims Act 2004. Section 5(7) was inserted by section 12(4) of the Domestic Violence, Crime and Victims Act 2004.Section 5A
This section provides for a court to impose a restraining order on someone who has been ''acquitted'' of an offence, if the court considers it necessary "to protect a person from harassment by the defendant". This section was inserted by section 12(5) of the Domestic Violence, Crime and Victims Act 2004.Section 7
This is the interpretation section. "Harassing" is defined (non-exclusively) as including "alarming" or "causing distress". Section 7(3) was substituted by section 125(7)(a) of the Serious Organised Crime and Police Act 2005. It now provides that a "course of conduct" requires either conduct on at least two occasions in relation to one person, or, where the harassment is alleged against two or more occasions, conduct in relation to at least one occasion in relation to each person. Section 7(3A) was inserted by section 44(1) of the Criminal Justice and Police Act 2001. Section 7(5) was inserted by section 125(7)(b) of the Serious Organised Crime and Police Act 2005.Section 8
Section 8 creates a civil action for harassment applying in Scotland only (sections 1-7 apply only in England and Wales).Section 8A
This section was inserted by section 1(2) of the Domestic Abuse (Scotland) Act 2011 (asp 13).Section 15
The Protection from Harassment Act 1997 (Commencement) (No. 1) Order 1997 (SI 1997/1418) (C 52) was made under section 15(1). The following orders were made under section 15(2): *The Protection from Harassment Act 1997 (Commencement) (No. 2) Order 1997 (SI 1997/1498) (C 58) *The Protection from Harassment Act 1997 (Commencement No. 3) Order 1998 (SI 1998/1902) (C 42)Racially or religiously aggravated harassment
Section 32 of the Crime and Disorder Act 1998 now provides that where a person commits an offence under section 2 or 4 of the Protection from Harassment Act which is "racially or religiously aggravated" within the meaning of section 28 of the Crime and Disorder Act 1998 (as amended by the Anti-terrorism, Crime and Security Act 2001) he is guilty of an offence triable either way. A person convicted on indictment of an offence falling within section 32(1)(a) of the 1998 Act (the racially or religiously aggravated version of the offence under section 2 of the Protection from Harassment Act 1997) is liable to imprisonment for a term not exceeding two years or to a fine, or to both. A person convicted of indictment of an offence falling within section 32(1)(b) of the 1998 Act (the racially or religiously aggravated version of the offence under section 4 of the Protection from Harassment Act 1997) is liable toDefinition
In England and Wales, the Act now creates offences of harassment, stalking, putting people in fear of violence, stalking involving fear of violence or serious alarm or distress, breach of injunction and breach of restraining order. Someone who believes they are the victim of harassment falling within section 1 of the Act may (either instead of or in addition to a criminal prosecution) elect to pursue a civil remedy for damages for anxiety or for financial loss arising from harassment: section 3(2). Section 3 creates a statutory tort based on the same acts as the criminal offence. An example of this tort in action appears in ''Green v DB Group Services (UK) Ltd'' 006EWHC 1898 QB (1 August 2006).http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2006/1898.html Green v DB Group Services which was a case of severe and prolonged workplace bullying resulting in serious illness of the claimant. If a claimant elects to pursue the section 3 civil law remedy, the standard of proof which needs to be shown is the common law standard of proof on "the balance of probabilities" (more likely than not) rather than the standard forCourse of conduct
Section 7(3) of the Act provides that a course of conduct must involve conduct on at least two occasions. (Originally these occasions needed to involve the same person, but the Act was amended by the Serious Organised Crime and Police Act 2005 so that "pursuing a course of conduct" could mean approaching two people just once.) In Wainwright v. Home Office (2003), Lord Hoffmann said "The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident." The Act contains no definition of "course of conduct" beyond the provisions of sections 7(3) and (4). Case law has established that "merely because there are two incidents between the same parties, this will not inevitably give rise to a course of conduct" and "the requirement of a nexus between the incidents appears an eminently sensible way in which to limit the potentially immense reach of the offence of harassment." In 2003, David Ormerod said that the "course of conduct" element defies definition.''Mens rea''
Constructive knowledge or actual knowledge is an element of the offences under sections 2, 2A, 4 and 4A; that is, the prosecution has to show that the defendant "knows or ought to know" that the course of conduct complained of has the prescribed effects on the person at whom it is directed. The test of "ought to know" is based on what "a reasonable person in possession of the same information" would think about the course of conduct in question. Section 4(2) "has an unusual type of ''mens rea'' with objective and subjective components." The justification for the imposition of liability based on constructive knowledge is the difficulty which might exist of proving ''mens rea'' on the part of "stalkers" who often suffer from mental or personality disorders.Employers' liability
Employers have vicarious liability for harassment by their employees under section 3 of the Protection from Harassment Act 1997 (see '' Majrowski v Guy's and St Thomas' NHS Trust''). For employees this may provide an easier route to compensation than claims based on discrimination legislation or personal injury claims for stress at work, as the elements of harassment are likely to be easier to prove, the statutory defence is not available to the employer, and it may be easier to establish a claim for compensation. Also as the claim can be made in either the High Court or the County Court costs may be recoverable by the successful party, subject to relevant court rules and limits. The Small claims track in theNumber of prosecutions
The Bill for this Act said that it was expected to result in about two hundred prosecutions a year. In 1998, there were nearly six ''thousand'' prosecutions. A written question, raised by a Member of Parliament in 2008 and relating to prosecutions under section 2 from the date of the Act to 2006, showed the numbers of persons proceeded against under section 2 remained fairly steady during the period (5,540 in 1999 of whom 2,753 were found guilty, 5,446 in 2006 of whom 3,768 were found guilty). A 2011 written question requesting information about prosecutions under section 2 during the period 2006-2009 showed 5,006 persons proceeded against during 2006-7 of whom 3,543 were found guilty, 4,940 proceeded against during 2007-8 of whom 3,650 were found guilty and 4,865 proceeded against during 2008-9 of whom 3,892 were found guilty.Northern Ireland
The Protection from Harassment (Northern Ireland) Order 1997 (SI 1997/1180) (NI 9) was made under paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 (as modified by section 13 of this Act) only for purposes corresponding to those of sections 1 to 7 and 12 of this Act.Scotland
In Scotland the Act works differently. Civil remedies include damages, interdict and non-harassment orders backed by powers of arrest. Any person who is in breach of a non-harassment order made under section 8 is guilty of an offence and liable, on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both, and, on summary conviction, to imprisonment for a period not exceeding six months, or to a fine not exceeding the statutory maximum, or to both. A breach of a non-harassment order is not otherwise punishable. Some Scots lawyers are of the view that there was no need for this Act to extend to Scotland because the law of Scotland already dealt satisfactorily with harassment and contained no relevant lacuna corresponding to any which existed in English law.History
The Act resulted from the efforts of Evonne Leonora Von Heussen. A stalking victim herself, she launched the National Association for Victims of Stalking and Harassment (NASH) in 1993, when her then teen-age daughter was stalked by a dangerous character who was known to carry a knife. After Von Heussen found that she could get no help from the police, lawyers, or her local Member of Parliament she began researching anti-stalking laws in other countries. She opened a help line on which she eventually took tens of thousands of calls. She pursued each call with each victim's MP, and attracted a large amount of media attention. After several years of effort she persuaded theCriticism
At the time of the Act's passing, some legal commentators were critical of it. Andrew Simester, a professor of law at King's College, London, believed it to be "unimpressive" and "hasty", and the result of political agitation; he contended that it "might well violate Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms".Simester, A P; Sullivan, G R. Criminal Law Theory and Doctrine. Hart. 2000. Page 395. Similarly,Praise
In February 2012, Elfyn Llwyd MP, chairing an Independent Parliamentary Inquiry into reform of stalking law, said the Act was a "landmark piece of legislation". The Act "is an effective weapon in the armoury of the victim of nuisance creditors." It is "a versatile and wide-ranging statute" and "one of the most flexible pieces of legislation of recent years." This Act was initially "doing its job quite happily".Clive Coleman. "How a stalkers' law is now being used to catch 'bullies'". In "Law". Page 2. Insert in ""Prevention of harassment" notices
Following the passage of the Act, police forces started to issue "prevention of harassment" notices, also known as "Police Information Notices" (PINs), to people against whom claims of harassment had been made. They are believed to have been created by police forces as a way of preventing people accused of harassment from claiming ignorance that their alleged behavior was undesired and thus avoiding successful prosecution under the Act due to lack of ''See also
* Employment discrimination law in the United Kingdom * Harassment in the United Kingdom *References
;General *Finch, Emily. The Criminalisation of Stalking. Cavendish. London. 2001. *Lawson-Cruttenden, Timothy; Addison, Neil. Blackstone's Guide to the Protection from Harassment Act 1997. Blackstone Press Limited. 1997. *Liberali, Benedetta. Il reato di atti persecutori. Profili costituzionali, applicativi e comparati. FrancoAngeli, Milano. 2012.Further reading
*Philip JohnstonExternal links
*