Saturday, 30 June 2012

Protection from Harassment Act 1997

The Protection from Harassment Act 1997 (PHA) attempted to remedy this gap in the law. The PHA makes it a criminal offence to pursue a course of conduct which amounts to harassment of a person. A court may issue a restraining order against someone found guilty of such an offence. Amendments to the PHA introduced by the Domestic Violence, Crimes and Victims Act 2004 will also give courts the power to issue a restraining order in certain circumstances against a defendant acquitted of a charge of harassment. However, at the time of writing this amendment particular has not yet come into force.

In addition to the criminal offence, the PHA also creates a civil statutory tort of harassment, which enables a person to obtain a civil court injunction to stop harassment occurring and to claim damages where appropriate.

This is a very important piece of legislation which can potentially provide protection in neighbourhood disputes, cases of racial harassment, bullying at work, confrontation with the media or stalking, as well as hate mail and persistent unwanted telephone calls. The PHA can also potentially apply in cases of domestic abuse.

There are defences to a charge of harassment set out in the PHA. In particular, conduct will not be harassment if it was pursued for the purpose of preventing or detecting crime; or it was pursued under any enactment or rule of law; or that in the particular circumstances the pursuit of the course of conduct was reasonable.

There is no complete definition of harassment in the PHA and so it will be a matter for assessment based on the facts in each case, though the PHA does make it clear that harassment includes causing alarm or distress. It is important to note that there must be a ‘course of conduct’ in order to bring a claim. This means that there must be at least two incidents representing harassment - more than one telephone call - and the person who is carrying out the harassment must know or ought to know that it would amount to harassment. Although two incidents can be enough, the fewer the incidents, and the further apart in time they are, the less likely a court will be to find that there has been a ‘course of conduct’.

The PHA can be relied upon not only against living people who harass, but also against companies. For example, it has been established that a publication of a series of newspaper articles by a newspaper can constitute a course of conduct amounting to harassment. Only individuals can be victims of harassment, and a person cannot be guilty of harassing a company or organisation. However, harassment of employees, directors or shareholdres of a company is an offence, so in practice the PHA can and has been used to protect corporations.

In 2001, the PHA was amended by the Criminal Justice and Police Act 2001 to make it clear that the PHA protects an individual from collective harassment by two or more people . This amendment remedied a potential loophole where two or more people each carried out only one act of harassment.

In 2005, the Serious Organised Crime and Police Act 2005 (SOCPA) created two new harassment-related offences. The first was introduced by SOCPA into the PHA : this is the offence of harassing 2 or more people either to deter them from engaging in lawful activities, or to persuade them to do something they are not obliged to do. There is concern that this provision will have a chilling effect on free speech and the right to peaceful protest, as it is easier now for companies and other organisations to use the PHA to protect themselves from protesters, as a single act of protest that targets one company may involve the harassment of several employees, and so breach this section. However, the defence of reasonableness also applies in this section, so persons exercising the right to peaceful protest can argue that their conduct is reasonable and therefore not harassment.

The second new offence was added by SOCPA to the Criminal Justice and Police Act 2001 : this is the offence of harassment of a person in his or her home by someone outside it or in its vicinity. To commit this offence, the perpetrator must be where he or she is for the purpose of telling or persuading a resident of the home that he or she should not do something which they are entitled or required to do, or that he or she should do something which they are not obliged to do. The perpetrator must also have the relevant intention or degree of knowledge that his presence would cause the resident harassment or alarm of distress. However, the perpetrator need not actually cause anyone harassment or alarm of distress, provided it is likely to occur; and the likely victim of such harassment or alarm or distress need not be the resident of the home, but may be anyone in any home in the vicinity.

These new offences were both designed to curb the activities of certain political and other protesters and pressure groups, particularly people who were considered to be “animal rights extremists” . However, the wording of the legislation is not limited to any particular class of defendant, and will cover any cases which satisfy the criteria for the relevant offence, including any arising in the context of neighbourhood or domestic disputes. It has also been used against peaceful protesters who want to protest against a particular organisation, but where the police considered that their actions may cause harassment to persons who lived in the vicinity, even though those persons were not the target of the protesters. This law can therefore potentially impact on the right of peaceful protest (see right of peaceful protest). A particularly worrying feature of this law is that there is not defence of reasonableness, so a person will not be able to say that their actions should not be harassment because they were reasonable.

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