Protection from Harassment Act 1997

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The Protection from Harassment Act 1997 (c 40) is an Act of the Parliament of the United Kingdom which, among other things, criminalises and creates a right to protection from stalking and persistent bullying in the workplace.[citation needed] It is "controversial".[1]

Contents

[edit] Provisions

[edit] Section 4

This section "could have been drafted more clearly all round". It is not clear why section 4(3)(c) requires the "pursuit of the course of conduct", that is to say, the whole course of conduct, to be reasonable, instead of requiring only that one incident be reasonable.[2]

[edit] Criticism

This Act is "unimpressive",[3] "unsatisfactory",[4] has "inadequacies"[5] and has been called "a breach of human rights".[6] A "better solution" is said to be needed.[3]

[edit] Drafting

The drafting of this Act is "deficient".[7] It is so bad that it might well violate Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms.[8] The Act is "deplorably vague".[9]

[edit] Penalties and mens rea

It is "unfortunate" that a maximum penalty of imprisonment for a term of five years has been applied to offences that can be committed through mere negligence.[10]

[edit] Definition

The Act defines harassment in section 1(1) as a "course of conduct" amounting to harassment and provides by section 7(3) that a course of conduct must involve conduct on at least two occasions. (Originally these occasions needed to involve the same person, but in 2005 the Act was amended by the Serious Organised Crime and Police Act so that "pursuing a course of conduct" could mean approaching two people just once.[11]) If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: section 3(2). The use of civil law means that the standards of evidence are substantially lower than for criminal law, for example permitting hearsay.[11] 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.[citation needed]

The editor of "Archbold" says that this Act does not attempt to define "harassment".[12] 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.

The effect of section 7(2) is that harassment includes causing the victim alarm or distress.[13]

A person guilty of an offence under section 2 is liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.[14] There are also a variety of civil remedies that can be used including awarding of damages, and restraining orders backed by the power of arrest.[citation needed]

Commentators such as George Monbiot have voiced the concern that the amended Act effectively "allows the police to ban any campaign they please", and that it has been used to prosecute peaceful protestors.[11]

The summary offences of harassment "cast the net too wide".[15] The offence created by section 2 is "broad and ill-defined".[16] Its scope is "quite enormous".[17] It might well violate Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (in addition to Article 7 mentioned above).[18] The "course of conduct" element defies definition.[5] The Act contains no definition of "course of conduct" beyond the provisions of sections 7(3) and (4).[19]

See also Green v DB Group Services (UK) Ltd [2006] EWHC 1898, [2006] IRLR 764, QB (1 August 2006).[20]

[edit] 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[21]). 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 the County Court costs are recoverable and legal aid is available.

[edit] Baseless complaints

Some magistrates have complained that the creation of an offence of harassment might lead to baseless accusations being made by complainants who are paranoid or vindictive. There is a problem with complainants who read more into other people's behaviour than is warranted. Police officers refer to this as "paranoid woman syndrome".[22]

[edit] Number of prosecutions

The Bill for this Act said that it was expected to result in about two hundred prosecutions a year.[23] In 1998, there were nearly six thousand prosecutions.[24]

[edit] Scotland

In Scotland the Act works slightly differently:

[edit] 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 the Home Office under Prime Minister John Major to take the issue on as a matter of government policy. She wrote the first draft of the Act and worked closely with ministers and senior civil servants in the Home Office and the Lord Chancellor's Department as the final version took shape. She advised ministers from her seat in the Under Gallery, on the floor of the House of Commons, during the Second Reading Debate. After Royal Assent she worked with Home Office and Lord Chancellor's Department in training judges, lawyers, other court personnel, police and voluntary organizations in the use of the Act. She received the MBE in the Queen's Birthday Honours List (1997) for her efforts. She also worked as a consultant on a number of court cases involving stalking and harassment.[citation needed]

The passing of this Act was "hasty".[25] There was an "unseemly rush" to get the Bill for this Act through all of its stages in Parliament.[26] This was the result of political agitation.[27]

[edit] See also

[edit] References

  • 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.
  1. ^ Infield, Paul; Platford, Graham. The Law of Harassment and Stalking. Butterwoths. London, Edinburgh, Dublin. 2000. p. x.
  2. ^ Ormerod, D C. "Commentary" to R v DPP [2001] Crim LR 396 at 398
  3. ^ a b Simester, A P; Sullivan, G R. Criminal Law Theory and Doctrine. Hart. 2000. Page 395.
  4. ^ Ormerod, D C. "Commentary" to DPP v Dunn [2001] Crim LR 130 at 131
  5. ^ a b Ormerod, D C. "Commentary" to Kelly v DPP [2003] Crim LR 45 at 46
  6. ^ Infield, Paul; Platford, Graham. The Law of Harassment and Stalking. Butterworths. London, Edinburgh, Dublin. 2000. p. x.
  7. ^ Ormerod, D C. "Commentary" to R v Hills [2001] Crim LR 318 at 319
  8. ^ Simester, A P; Sullivan, G R; Criminal Law Theory and Doctrine. First Edition. Hart. 2000. p 394
  9. ^ Glazebrook, P R. Blackstone's Statutes on Criminal Law. Tenth Edition. Blackstone Press Limited. 2000. ISBN 1-84174-087-X. Pages xiii and xiv.
  10. ^ Ashworth, A. Principles of Criminal Law. Sixth Edition. Oxford University Press. 2009. ISBN 978-0-19-954197-3. p 315.
  11. ^ a b c George Monbiot, The Guardian, 5 February 2009, Why protesters are now stalkers
  12. ^ Archbold Criminal Pleading, Evidence and Practice. 2009. Para 19-277A at p 1986
  13. ^ Herring, Jonathan. Criminal Law: Text, Cases, and Materials. OUP. 2004. p 342.
  14. ^ The Protection from Harassment Act 1997, section 2(2)
  15. ^ Baker, Dennis J; Williams, Glanville. Textbook of Criminal Law. Third Edition. Sweet & Maxwell. ISBN 978-041-404613-9. 2012. Para 9-071 at p 285.
  16. ^ Ormerod, D C. "Commentary" to R v Colahan [2001] Crim LR 845 at 846
  17. ^ Simester, A P; Sullivan, G R. Criminal Law Theory and Doctrine. First Edition. Hart. 2000. p 394
  18. ^ Simester and Sullivan. Criminal Law Theory and Doctrine. Second Edition. p 398
  19. ^ Ormerod, D C. "Commentary" to Lau v DPP [2000] Crim LR 580 at 581
  20. ^ BAILII
  21. ^ [2006] UKHL 34, [2006] ICR 1199
  22. ^ Harris, Jessica. Home Office Research Study 203: An Evaluation of the Use and Effectiveness of the Protection from Harassment Act 1997. Research, Development and Statistics Directorate, Home Office. 2000. ISBN 1 84082 499 9 Page 42.
  23. ^ Explanatory Memorandum to the Protection from Harassment Bill.
  24. ^ Ormerod, D C. "Commentary" to R v Colohan [2001] Crim LR 845 at 846
  25. ^ Simester, A P; Sullivan, G R; Criminal Law Theory and Doctrine. First Edition. Hart. 2000. p 395.
  26. ^ Ormerod, David. Smith and Hogan's Criminal Law. Twelfth Edition. Oxford University Press. 2008. ISBN 978-0-19-920258-4. Page 653.
  27. ^ Simester, A P; Sullivan, G R. Criminal Law Theory and Doctrine. First Edition. Hart. 2000. p 395.

[edit] External links

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