Talk:Protection from Harassment Act 1997

From Wikipedia, the free encyclopedia
Jump to: navigation, search

Merge?[edit]

I suggest this should merge with Protection from Harassment Act 1997 article78.146.79.150 (talk) 10:37, 31 December 2010 (UTC)

"this" presumably refers to Harassment in the United Kingdom. Not sure if a merge is a good idea - probably not much in it either way. Rd232 talk 12:48, 31 December 2010 (UTC)

History[edit]

The first paragraph of the section on history looks more like a biography. It also seems to be at least partly sourced to the husband of the person in question. James500 (talk) 17:34, 24 March 2013 (UTC)

Neutrality[edit]

Whilst not an expert on the politics or law of the United Kingdom, a quick read of this article would suggest to me that it is patently biased in favour of those who oppose the law. The article appears to be written with the intent to criticise the law rather than to inform as to what it is and what its implications are. If the criticial viewpoint is to be written about, then it is probably also fair to mention what supporters of the law think and what the lawmakers' intentions were in passing the act. It is of course possible that the public is massively opposed to the law, but this article seems to be written rather unilatterally. Mww113 (talk) 22:41, 7 July 2013 (UTC)

If you can find reliable sources that say complimentary things about this Act, by all means feel free to add a praise section. That said, it is perfectly possible to inform people about criticism, and the criticism is coming from reliable sources, principally textbooks and journals written by academic lawyers and government command papers. I will try to dig up some praise if I have time but that might not happen before the end of August. James500 (talk) 15:12, 8 July 2013 (UTC)

For the avoidance of doubt, the article does not say that the public are massively opposed to the Act as I have not looked at opinion polls. The general public are not a reliable source. And reliable (ie academic) sources don't need to have their opinions vouched for by an opinion poll. They may in fact be more trustworthy because they are experts who actually know what they are talking about. James500 (talk) 15:33, 8 July 2013 (UTC)

The document linked at footnote 23 to the article is a Home Office commissioned study of the operation of the Act which was carried out in 2000 and which is largely positive. The paragraph about Baseless Claims does not seem to be fairly based on the material appearing at p.42 of the study, which suggests that baseless claims are no more prevalent in relation to harassment cases than other crimes where the victim is likely to know the perpetrator and that existing measures for dealing with them are adequate. Not including any of the material from the source which states that on the whole practitioners see the Act as working well unbalances the article. Legionseagle (talk) 16:27, 12 September 2013 (UTC)

My recollection is that what I wrote is in the source, even if it doesn't contain everything the (rather lengthy) source says. As regards the largely positive nature of that report, has it occurred to you that the Home Office might have a political agenda? I included what I did on the assumption that they have no reason to criticise themselves. I suspect that some editors in my position might refuse to cite that report at all, because it is from Home Office. If you feel that the article could be expanded, why don't you just do it? If you want to add information to the article, I am not going to stop you. Go ahead. James500 (talk) 03:44, 13 September 2013 (UTC)

I thoroughly agree with the above users that the article seems to violate Wikipedia's Neutral Point of View policy - if other agree I'll try to rewrite the article over the next few weeks so it adheres to Wikipedia guidelines, although I'm afraid I'm no legal expert and if anyone has more experience in that area please chime in. Kilburn London (talk) 09:51, 13 September 2013 (UTC)

I'd recommend including in a revised article the amendment to the Act by s.111 of the Protection of Freedoms Act 2012 to include the addition of two specific stalking offences; s.2A Offence of Stalking and s.4A Stalking involving fear of violence or serious alarm or distress. These came into effect on 25 November 2012. It's not just their omission makes the article misleadingly incomplete, the various Government consultations leading up to the introduction of the stalking offence systematically examined some of the contentions which appear in the current article eg "Unexpected results. This Act has had unexpected results.[11]" and "The summary offences of harassment "cast the net too wide".[17]" and essentially refute them. By leaving out the amendments to the Act which created a specific stalking offence I believe it reinforces the perception that the Act was originally intended as a limited "stalking" bill which got hijacked. Legionseagle (talk) 10:36, 13 September 2013 (UTC)

Please do rewrite, Kilburn London. Yes, it's possible that the Home Office had an agenda, but by ignoring everything they say in their own favor and including only something based on "but to be fair, our critics claim....", James500 has not eliminated bias, he has introduced bias, perhaps because he too has an agenda. If the source is too biased to be valid, don't draw from it at all.Vicki Rosenzweig (talk) 14:53, 13 September 2013 (UTC)

Please assume good faith (WP:AGF). The incomplete nature of this article is due to my habbit of not finishing what I start, the fact that I have to start somewhere, and the fact that I cannot access my sources at the moment. I added the praise section to this article. None of you did that. The truth of the matter is that much of the criticism mentioned in this article does not accord with my opinions.

I was not aware of any further consultations. Are we not suppossed to give greater weight to commercially published textbooks than government command papers? (On grounds that they are more clearly independent). On the other hand, if someone, such as the Home Office, publishes a mea culpa, it is probably true.

I don't see how you could "essentially refute", as oppossed to disagree with, an assertion that an offence is too broad or too narrow, as that is a subjective expression of political opinion that depends on how much power you want the State to have. A political anarchist would probably reject the whole criminal law (in favour of self help), never mind this one Act. The article from The Times about unexpected results does quote Michael Howard, the Home Secretary who introduced the Bill for this Act and who presumably knows what he (if not the other MPs) intended, and looked to me to be genuine. James500 (talk) 15:53, 13 September 2013 (UTC)

Articles in the Times are not guides to interpretation of statute law of the UK. Especially not ones published nine years after the Act in question received Royal Assent! Anyway, the Act concerned has had 41 changes made to it, the key ones being under Domestic Violence, Crime and Victims Act 2004, Serious Organised Crime and Police Act 2005 and Protection of Freedoms Act 2012. If you compare those to the dates of the textbooks and articles cited by you, you'll note that the latter are mostly significantly outdated. Legionseagle (talk) 16:32, 13 September 2013 (UTC)

If you can afford to buy the latest edition of every textbook, please do so, but bear in mind that some of us can't, and that old books are of historical interest.

I appreciate that the "intention of Parliament" has a special meaning in the context of statutory interpretation, but the passage about unexpected results is concerned with histiography, and I'm sorry if that wasn't made clear.

As regards the age of these sources, the comment from Blackstone's Statutes is also in the 2004 edition, at p xxv, which is the most recent I have with me.James500 (talk) 16:44, 13 September 2013 (UTC)

I do not think that NPOV requires an obviously incomplete article (and this one is still more a less a stub) to be perfectly balanced at every stage of its expansion. I think that would place a crushing burden on editors who probably have very limited resources, time and patience. It is not apparent to me that the space devoted to criticism is excessive for what I would expect the final length of this article to be, and that is the test that I would apply to any article. I would not be prepared to endorse a test based on the present length or contents of an article because the deletionists would have a field day and it would become exceptionally difficult to expand any article in any way. James500 (talk) 19:24, 13 September 2013 (UTC)

I have added the amendments made by the Protection of Freedoms Act 2012 per the request above. But, in my opinion (1) all amendments should be included and (2) the fact that that these amendments were made does not in of itself prove what was intended in 1997 as oppossed to what was intended in 2012. James500 (talk) 23:02, 13 September 2013 (UTC)

I think that the complaint about the age of my sources looks at bit unfair when you consider that many of our articles are copied verbatim from sources that are more than one hundred years old. By the standards of Wikipedia, my sources are very recent. James500 (talk) 03:18, 14 September 2013 (UTC)

I think you've missed the point: a statute is not static, it is a living document open to change (including repeal in whole or in part) either through statutory amendment or by judicial interpretation - for example, to clarify what acts constitute either harassment or a course of conduct. Writers of legal textbooks therefore know they have to keep them constantly updated to reflect new developments, and comments they made about bits of the Act they found too broad or badly expressed in 2000 might now need to be revised if those bits had themselves changed. By sticking to the old textbook editions you're asserting a right to consider what was being said about the Act in 2000 and ignoring what's happened since. I also suggest that because you're drawing from a very limited number of texts (Ormerod and Glazebrook, predominantly) it's reflecting one viewpoint which a wider selection of sources might produce a wider range of viewpoints. Legionseagle (talk) 06:29, 14 September 2013 (UTC)
There never has been and never will be any rule that we must use the latest textbook edition because the cost would be prohibitive and Wikipedia is a work of history as well as law. You offer no evidence that more recent editions say anything different. The most that I could do would be to rephrase the material so that the author and date are given in the body of the text (eg "In 2009, Ashworth said ..."). I don't see how the amendments could be relevant to the comments cited as they just consist of additional offences and increased powers. I would hestitate to call the number of texts very limited and it is still more than you are offering. Simester and Sullivan, Infield and Platford, Baker, Ashworth, Archbold, Herring, Harris, Coleman and Monbiot are used as much or more than Glazebrook who is used exactly once. If you are so concerned about the number of sources, why don't you just add some, instead of asking me to do it for you. No one disputes that this article is incomplete. I simply did not have time to complete this article when I edited it a few months ago. But I don't understand why you expect me to do everything. James500 (talk) 08:00, 14 September 2013 (UTC)

My objection and that of others is not that the article is incomplete, but that it's biased. One sign of that bias is the preferred use of secondary sources, such as Times articles, to primary sources, such as Hansard, and the evidence of quote-mining from selected sources, such as the example I quoted from the Home Office research study. That's a 70+ page study examining in depth a significant sample of cases brought under the Act, with interviews with the magistrates, prosecutors and complainants and yet the only thing you use from it is the phrase "paranoid women syndrome". Legionseagle (talk) 08:35, 14 September 2013 (UTC)

Wikipedia's policies express a preference for the use of secondary sources. That might be a dubious approach, but the last time I checked it was policy. You are not offering any references to Hansard. Name the passages from Hansard that you like to see included and I will include them. I don't accept that your example is an example of quote mining (I have not said that baseless accusations of this offence are more frequent than those of other offences or that existing safegaurds are inadequate) and even if it was, you are in no position to insinuate that there is something wrong with the other quotes from sources that you have obviously never looked at. I have to choose something to include because I can't type out 70+ pages because I do not have time. Why not choose paranoid woman syndrome? What exactly is wrong with it? And, more importantly, why are you not attempting to improve this article? You have not made a single edit. WP:SOFIXIT. James500 (talk) 12:18, 14 September 2013 (UTC)

What's wrong with "paranoid women syndrome"? Well, the original source read as follows: "Some magistrates felt that criminalising harassment cases might lead to unfounded accusations from complainants who are mistaken about another’s behaviour or are even vindictive. Prosecutors accepted this point and agreed that they had to be on the lookout for what the police sometimes termed ‘paranoid woman syndrome’, where the putative victim read more into another’s behaviour than was perhaps warranted. However, if they thought that accusations were without foundation, they had scope under the Code for Crown Prosecutors to discontinue proceedings. Ultimately, they agreed that the difficulties in pursuing harassment cases were no greater than other kinds of case – such as domestic violence – where the parties are often well known to each other." You rendered it as "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"." If you can't see the problems with changing "felt" to "complained", "mistaken about another's behaviour or are even vindictive" to "paranoid or vindictive" and "sometimes termed" to "refer to" and then passing off the whole thing as derived from the original then I hope other people will. In any event, I've not made edits myself because Kilburn London indicated they were planning to do a rewrite, and I was awaiting that rewrite. Legionseagle (talk) 12:58, 14 September 2013 (UTC)

It did not occur to me that my original paraphrasal might be inaccurate, but perhaps that just means that I am illiterate. James500 (talk) 17:49, 14 September 2013 (UTC)
Legionseagle, if you'd like to jump in please do! You seem much more knowledgeable about the legal issues and context than I am, and I don't anticipate my getting to it before the end of the week anyway; I only mentioned it to see if there was editorial consensus for a rewrite which it appears there definitely is. Kilburn London (talk) 11:37, 15 September 2013 (UTC)

If you feel that the government publications contain material that should be added to this article, please just do so. What I said above about the reliability of possibly self-serving statements is advice, not a demand. But I can't add that stuff for you at the moment. James500 (talk) 03:40, 14 September 2013 (UTC)

The website of The Guardian has an A to Z of legislation which contains what is essentially an encyclopedia article on this Act: http://www.theguardian.com/commentisfree/libertycentral/2009/jun/01/liberty-central-protection-harassment . About half the article consists of a section headed "criticism" and there is no praise. If this Act has received more criticism than praise, you could argue that the article should give more space to criticism. James500 (talk) 18:21, 15 September 2013 (UTC)

The Guardian article is editorial opinion given in the context of the priorities of an avowedly campaigning newspaper with strong civil liberties concerns. There's no reason why they should have the same priorities as Wikipedia in reporting on the Act. Legionseagle (talk) 18:36, 15 September 2013 (UTC)

Fair enough. James500 (talk) 18:50, 15 September 2013 (UTC)

From a structural point of view I've been trying to put dry factual statements as to what each section says (together with some context where the section is an amendment) under the individual section headings with a view to putting discussion of controversy under the "Criticism" section, in an effort to make the whole article more balanced. However, you keep reinstating material which has either been removed for duplication or for structural reasons. Trying to edit simultaneously with me doing it is just creating a muddle.Legionseagle (talk) 20:12, 15 September 2013 (UTC)

In no case have I reinstated duplicated material. You have not moved anything to the criticism section. I am not obliged to wait for you to finish before editing. James500 (talk) 20:39, 15 September 2013 (UTC) If you are going to move passages from one section to another, please do so simultaneously so that people can follow what you are doing. It would help if you start to use edit summaries as well. James500 (talk) 21:42, 15 September 2013 (UTC)

Section 4[edit]

Could the user responsible for this edit please either explain what factual background and assumptions are missing or just add them to the article. James500 (talk) 23:36, 16 September 2013 (UTC)

Ormerod's expanded comments are dependent on two hypothetical questions: what if the court had found that a threat to kill the complainant's dogs was a threat of violence directed at the complainant, making it part of a course of conduct, but had then found that the complainant's threat to kill the dogs was reasonable; would this have required them to acquit the defendant on the basis of no course of conduct (because only one qualifying act) or would they have had to find him guilty (because the course of conduct as a whole was not reasonable)? It's a piece of speculation provoked by the facts of a specific case and either has to be expanded upon to make that clear or omitted altogether. Legionseagle (talk) 09:21, 17 September 2013 (UTC)

Seriousness[edit]

The article presently says that offences under sections 3, 4, 4A and 5 are "more serious" than those under sections 2 and 2A. The reasoning offered for this is that they have a higher maximum penalty and a different mode of trial. As regards the first limb of that argument, Smith and Hogan's Criminal Law says that statutory maxima can be inconsistent with each other (13th ed, p 41).

I am not sure if an ignorant person would know what "serious" means in this context. We do have an article called Seriousness which discusses, amongst other things, the seriousness of offences. "Seriousness" is used as a term of art, for example by the Criminal Justice Act 2003. James500 (talk) 01:50, 17 September 2013 (UTC)

At the time the Act was passed, the key difference between offences was between arrestable and non-arrestable offences, which had in turn replaced the older distinction between felonies and misdemeanours (still used in jurisdictions such as the US). Section 2 created a non-arrestable offence; the other offences, when created, were arrestable offences. I have difficulty believing that anyone can actually have trouble appreciating that arrestable offences were inherently more serious than non-arrestable offences, that felonies were inherently more serious than misdemeanours and that offences which imply a threat of violence are inherently more serious than those which do not. Legionseagle (talk) 09:30, 17 September 2013 (UTC)

To begin with, offences under section 2 were arrestable, not that I agree with your line of reasoning, which might not be compatible with WP:NOR. O Hood Phillips, for example, writing in 1960, describes the distinction between felony and misdemeanour as "illogical" saying that there are statutory misdemeanours which are "very serious" and "may be punishable as severely as felonies" (A First Book of English Law, p 211). James500 (talk) 11:22, 17 September 2013 (UTC)

Strictly within the confines of the Protection from Harassment Act 1997 the potential consequences of transgressing section 4 (etc) are more serious than the potential consequences of transgressing section 2, unless of course the extreme relative position you are adopting requires me to cite authority for the proposition that five years in prison has a more serious impact upon the life of the prisoner than six months. Legionseagle (talk) 13:35, 17 September 2013 (UTC)

The word "serious" is probably ambiguous. A person who didn't know any better might think that you were talking about the moral culpability of the offence, or the amount of harm done (cf section 143 of the Criminal Justice Act 2003). James500 (talk) 14:25, 17 September 2013 (UTC)

I think a reasonable person would understand what's meant by "serious" in context here. (Thanks for the edits so far, Legionseagle! They're very clear and comprehensive, and I'm glad someone with proper legal knowledge is tackling it.) Kilburn London (talk) 18:27, 17 September 2013 (UTC)

The fact that Parliament felt it necessary to enact a convoluted statutory definition of "seriousness", which is not obviously compatible with what is being said here, is strong evidence that it is not obvious what that expression means. James500 (talk) 00:26, 18 September 2013 (UTC)

The lead[edit]

The lead presently claims that the Act criminalizes and creates a right to protection from "stalking" and persistent bullying in the workplace. However (1998) 142 Solicitors Journal 604 argues that "stalking" is still prima facie lawful because the Stalking Bill 1996 did not pass. Although section 2A was inserted after that article was written, it does not expressly purport to criminalize all "stalking". It only purports to criminalize a course of conduct that amounts to "stalking" where that course of conduct is also pursued in breach of section 1(1). The implication seems to be that it might be possible to have "stalking" without a "course of conduct" and without a breach of section 1(1). On the other hand, there are passages in Hansard that suggest that "stalking" was already criminal before this Act was passed. In particular it was suggested that the offence of breach of the peace in Scotland was so broad that it included everything that could possibly amount to "stalking". I have no idea where "right to protection" has come from. The last time I checked, it was not possible to sue a constable for negligently failing to catch a criminal. Section 8(1) does refer to a right to be free from "stalking", but, apart from the fact that this only applies to Scotland, it is not obvious that it obligates any third party to step in (it might refer to a combination of self help and discretionary intervention). In any event, the use of the word "may" sections 8(5) and 11 indicates that relief is discretionary. "Persistent" is not obviously the same thing as a "course of conduct". IIRC, "persistent" has, in the context of soliciting, been construed as meaning twice, whereas it has been held that two incidents do not necessarily make a course of conduct. The case cited does not actually refer to the criminalization of, or a right to protection from, all workplace bullying in express words, so the whole passage is unreferenced. (The person who added that citation obviously did not understand how strict WP:NOR is). I am going to remove that passage from the lead. James500 (talk) 11:00, 23 May 2014 (UTC)

I have added a citation to current Home Office guidance as to the intention behind the Act to include stalking. It is clear both from that and from current CPS guidance on prosecuting stalking that behaviours which could, colloquially, be described as "stalking" may be prosecuted under a wide range of possible offences, depending in each case of the precise nature of the behaviours complained of. Accordingly, prior to the creation of a specific stalking offence by s. 2A, some acts of stalking could potentially have been prosecuted as assault or criminal damage, depending on how the stalker went about matters. Depending on the facts, the prosecution now has a choice which offences to pursue. With respect to duties of care to pursue criminals, such a duty clearly exists in the case of rape and other violent crime following the claim by Warboys victims against the Met: DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB). Breach of that duty is actionable in damages by the victim. The claim was based on the Human Rights Act which underpins all activities of crime enforcement and judicial action. "Rights to protection" likewise derive from the European Convention on Human Rights. Legionseagle (talk) 09:04, 15 June 2014 (UTC)