The Protection from Harassment Act 1997
The principal aim of the Act is to deal with stalking. However, the legislation will also provide an additional remedy for those subjected at work or outside work to racial or sexual harassment, or to harassment on grounds of sexual orientation or disability. The Act received Royal Assent on 21 March, and will be brought into force by Order after the General Election. Provision is made for corresponding provisions to be brought into force in Northern Ireland by Order in Council.
Introducing the Bill in the House of Lords, the Lord Chancellor explained: "The Government believe that it is right that provisions to deal with the menace of stalking and harassment should be available in both civil and criminal law. Criminal sanctions are necessary so that victims can call upon the police to investigate instances of harassment, particularly where the identity of the person causing the harassment is not known to the victim, and because the conduct itself is sufficiently reprehensible for society to express its disapproval by means of criminal penalties.
Criminal proceedings cannot always protect a victim from anticipated harm. The criminal law cannot provide protection for someone who might reasonably expect that they may be subject to harassment in the future. Nor does it provide protection where the case cannot be proved beyond reasonable doubt. In civil proceedings the court, if it is satisfied on the balance of probabilities that the defendant harassed the victims, should be able to order the defendant to compensate the victim for the distress and disturbance caused by the harassment. The civil court should also be able to grant an injunction preventing the carrying out of any specified activity which would amount to harassment."
Key sections of the Act are reproduced below.
Prohibition of harassment
1.-
(1)A person must not pursue a course of conduct -
(a)which amounts to harassment of another, and
(b)which he knows or ought to know amounts to harassment of the other.
(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3)Subsection (1) does not apply to a course of conduct if the person who pursued it shows -
(a)that it was pursued for the purpose of preventing or detecting crime,
(b)that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c)that in the particular circumstances the pursuit of the course of conduct was reasonable.
[. . .]
7.-
(1)This section applies for the interpretation of ss.1 to 5.
(2)References to harassing a person include alarming the person or causing the person distress.
(3)A "course of conduct" must involve conduct on at least two occasions.
(4)"Conduct" includes speech.
The Act does not define "harassment" as such. Instead, it prohibits the conduct by reference to the effect that it has on the victim. According to the Home Secretary, this definition was adopted specifically to widen the Act's scope from merely dealing with stalking to cover "conduct that causes racial harassment" and other "anti-social behaviour". There is nothing to suggest that sexual harassment, or harassment on other grounds such as sexual orientation or disability, is not covered by the prohibition.
Section 1 needs to be read with s.7, which provides that harassing a person includes a course of conduct "alarming the person or causing the person distress".
These provisions are noteworthy in that they do not require proof of the intention of the harasser. It thus goes much further than the amendment to the Public Order Act 1986 made by the Criminal Justice and Public Order Act 1994 (EOR 58), which made intentional harassment a criminal offence. That Act may be relevant, however, in so far as it includes a description of harassment as entailing "threatening, abusive or insulting words or behaviour, or disorderly behaviour" or the display of "any writing, sign or other visible representation which is threatening, abusive or insulting."
Under the 1997 Act, the test is whether the offender is committing actions that a reasonable person in the position of the offender would expect to give rise to harassment. Section 1 provides that a person who pursues a course of conduct (defined by s.7 as including at least two occasions) that he ought to have known would cause harassment will commit an offence. A person ought to know that his course of conduct would amount to harassment in circumstances in which a reasonable person, in possession of the same information, would think that the course of conduct would cause the person at whom it is directed the effects of harassment, such as alarm or distress. Whether the Act covers harassment which creates anxiety, but is not so severe as to cause "distress", will be for the courts to determine.
Section 1(3) provides a defence where the conduct was pursued for the prevention and detection of crime, or under an enactment or rule of law. There is also a defence of acting reasonably in the particular circumstances of the case, designed to deal with the activities of journalists, salespeople, religious activists, debt collectors and others carrying out legitimate activities.
Offence of harassment
2.-
(1)A person who pursues a course of conduct in breach of s.1 is guilty of an offence.
(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
Section 2 makes it a criminal offence for a person to pursue a course of conduct in breach of s.1. The maximum sentence for the criminal offence of harassment will be six months' imprisonment and/or a level 5 fine.
Civil remedy
3.-
(1)An actual or apprehended breach of s.1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2)On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
(3)Where -
(a)in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
(b)the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant.
(4)An application under subsection (3) may be made -
(a)where the injunction was granted by the High Court, to a judge of that court, and
(b)where the injunction was granted by a county court, to a judge or district judge of that or any other county court.
(5)The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if -
(a)the application is substantiated on oath, and
(b)the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.
(6)Where -
(a)the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and
(b)without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,
he is guilty of an offence.
(7)Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court.
(8)A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court.
(9)A person guilty of an offence under subsection (6) is liable -
(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
(b)on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
From the standpoint of discrimination law and equal opportunities, s.3 is the Act's key provision. It creates a civil tort of harassment. This will allow those subjected to harassment to bring proceedings in the ordinary courts against the harasser seeking damages for loss or injury suffered and, most importantly, an injunction to restrain future harassment. This remedy, of course, is not available from industrial tribunals.
In contrast also to tribunal proceedings under discrimination legislation, the claim under the Protection from Harassment Act would be brought against the harasser personally rather than against the employer. However, there is nothing to stop someone subjected to a campaign of harassment at work from bringing a claim against the employer under the relevant discrimination statute in the industrial tribunal, and at the same time seeking damages and/or an injunction under the new legislation in respect of the harasser personally.
How difficult will it be to prove a case under the 1997 Act? The burden will be the civil test of the balance of probabilities that the defendant harassed the victim, rather than the criminal standard of beyond reasonable doubt. Applicants will have to establish that they were subjected to more than one incident of conduct which caused them distress or alarm and which a reasonable person would regard as harassment. This can include verbal harassment (see s.7 above). Although the definition was subjected to some criticism in Parliament because it focuses on the state of mind of the perpetrator, we think this burden of proof should not be unduly difficult to discharge in respect of harassment at work.
This is particularly so because of the increasing emphasis on training employees as to what amounts to unacceptable harassment, fuelled by the codes of practice and by decisions such as Jones v Tower Boot Co (EOR 71) and the Bernard Manning case, Burton v De Vere Hotels (EOR 70). As a result, there is a broad consensus amongst equal opportunities specialists and discrimination specialists which should inform what "a reasonable person" would think amounted to harassment, and presumably some applicants under the Protection from Harassment Act will receive support from the statutory enforcement agencies in putting their case.
The civil courts are empowered by the Act to grant an injunction preventing the harasser from carrying out any specified activity which would amount to harassment. Breach of such an order would, if proved beyond reasonable doubt, be a criminal offence punishable by up to five years' imprisonment and/or an unlimited fine.
Like proceedings under discrimination legislation, the Act provides for tort damages for proven harassment, including compensation for the distress caused. Actions for damages under this section are subject to a six-year limitation period rather than the three-year period applicable to personal injury cases, or the three-month period for bringing industrial tribunal claims.
Putting people in fear of violence
4.-
(1)A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.
(3)It is a defence for a person charged with an offence under this section to show that -
(a)his course of conduct was pursued for the purpose of preventing or detecting crime,
(b)his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c)the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property.
(4)A person guilty of an offence under this section is liable -
(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
(b)on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
The Act also creates a more serious criminal offence of causing someone to fear violence. This offence applies in England and Wales (but not in Scotland where the existing common law is regarded as adequately covering acts that cause harassment). The maximum penalty for the offence is five years' imprisonment and/or an unlimited fine.
Restraining orders
5.-
(1)A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under s.2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.
(2)The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which -
(a)amounts to harassment, or
(b)will cause a fear of violence,
prohibit the defendant from doing anything described in the order.
(3)The order may have effect for a specified period or until further order.
(4)The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
(5)If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.
(6)A person guilty of an offence under this section is liable -
(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
(b)on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
Section 5 permits a criminal court, when it has convicted a person for an office under ss. 2 or 4, to make an order for the purpose of protecting the victim of the offence, or any other person mentioned in the order, prohibiting the person from carrying out further conduct which amounts to harassment or causes fear of violence. This provision, therefore, gives the criminal courts in these circumstances a sentencing power which is similar in its extent to a civil injunction.
Breaching such an order will itself be a criminal offence with a maximum penalty of five years' imprisonment and/or an unlimited fine.
