Protection from Harassment Act 1997

In England and Wales, the Act now creates offences of harassment,[22] stalking,[23] putting people in fear of violence,[24] stalking involving fear of violence or serious alarm or distress,[25] breach of injunction[26] and breach of restraining order.[27]

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 [2006] EWHC 1898 QB (1 August 2006).[28] 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 for criminal law which is proof beyond reasonable doubt.

The editor of “Archbold” notes the Act does not attempt to define “harassment”.[29] In Thomas v News Group Newspapers and Another (2001), Lord Philips MR said: “‘Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.”[30]

Section 7(2) of the Act provides that, for the purpose of the interpretation of sections 1 to 5A, references to harassing a person include alarming the person or causing the person distress.[31]

Section 5 of the Act gives the court in criminal cases a power to grant restraining orders and section 5A, introduced by the Domestic Violence, Crime and Victims Act 2004, extends this power to cases where the defendant was acquitted, if the court “considers it necessary to do so to protect a person from harassment by the defendant.”.[32] The power to grant restraining orders was characterised as “the most important aspect of the Act” by practitioners interviewed in a Home Office research study (2000) into the effectiveness of the Act.[33] The power to grant restraining orders is separate from and additional to the ability of claimants to seek injunctions in civil actions brought under section 3 of the Act. However, in each case the penalties for breach of a restraining order or an injunction are similar: on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.[34]

The summary offences of harassment “cast the net too wide”.[35] The offence created by section 2 is “broad and ill-defined”.[36] Its scope is “quite enormous”.[37] It might well violate Articles 10and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (in addition to Article 7 mentioned below).[38]

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