harassment and stalking

Harassment and Stalking

It only takes two relevant incidents for behaviour to be considered as harassment or stalking. 

Get the advice you need to protect yourself from a potentially damaging investigation or prosecution.

Overview

Harassment covers a wide range of alleged misdemeanours that individually would not necessarily attract criminal liability. Many of the examples of behaviour are relatively minor but when added together and multiplied can give rise to a criminal charge of harassment.  

 

In simple terms stalking is more serious than harassment.

From a victim point of view these are easy offence to report, because they are often domestic related and potentially serious the Police will give it priority and arrest or voluntarily interview a suspect under caution at the police station. The investigations often take months to conclude because of the many differently ways that the offence can be committed, especially where electronic evidence is potentially available, leaving the suspect in limbo indefinitely, often subject to strict bail conditions and ultimately a charge and a court case. 

Police investigations and Court hearings can have a dramatic impact on day to day living. Access to the family home and to children is often restricted and any caution or conviction can affect employment as it would remain on the police national computer and may be disclosed on a DBS check.

Loopholes to consider

Below I have outlined this area of law and defences.

 

Loopholes are legitimate lines of defence that take into account all the small areas of law.

Loophole defences that may be appropriate to harassment or stalking may include:

  1. Can it be proven that you actually took part in the conduct alleged?

  2. Do you have an alibi to prove you did not take part in the alleged behaviour?

  3. Can you demonstrates that the complainant is exaggerating the allegation? 

  4. Can you demonstrate that your actions were reasonable in all the circumstances?

  5. Can you demonstrate that the contact was not unwanted and the behaviour was reciprocated?

  6. Can you demonstrate that you were not told to stop or keep away from the person?

  7. Can you demonstrate you were not monitoring or following the other person?

  8. Can it be proven that there are two separate incidents of harassment or stalking?

  9. Are the incidents within time for a summary offence to be proceeded with? 

  10. Can you demonstrate that your actions were in the best interests of the other person?

  11. Do you have witnesses to help prove your account?

  12. Do you have other evidence to help prove your account? 

 

Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

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Harassment explained

In simple terms there are two types of harassment, basic and aggravated.

 

Basic harassment under Section 2 of the Protection from Harassment Act 1997 requires:

 

  • a course of conduct, which means at least two separate incidents; 

  • which amounts to harassment of another; and 

  • which the suspect knows, or ought to know amounts to harassment of another.

 

Aggravated harassment under Section 4 of the Protection from Harassment Act 1997 is an aggravated version of Harassment where the victim has been put in fear of violence.

 

The maximum prison sentence for basic harassment is 6 months and for aggravated harassment it is 10 years.  

 

Harassment is not specifically defined, it can include repeated attempts to impose unwanted communications and contact upon a victim in a manner that could be expected to cause distress or fear in any reasonable person.

 

A prosecution under section 2 or 4 requires proof of harassment. In addition, there must be evidence to prove the conduct was targeted at an individual, was calculated to alarm or cause him/her distress and was oppressive and unreasonable. For a conviction it is important to understand the importance of establishing conduct that is oppressive and unreasonable rather than incidents that are annoying or irritating.

 

What is a course of conduct?

A course of conduct is defined as being on at least two occasions. Acts might be some distance apart, and yet still constitute a course of conduct. Each case will fall to be determined on its own facts. If there are only two incidents and a long period between them, the less likely it is that they will be accepted by a court as amounting to a course of conduct. There is no specific requirement that the activity making up a course of conduct should be of the same nature. Therefore, different types of behaviour by a person such as making a telephone call on one occasion and damaging the victim's property on another may suffice.

 

In determining whether the suspect ought to know that the course of conduct amounts to harassment it is important to understand that it is irrelevant what the suspect thinks amounts to harassment, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

 

Examples of harassing behaviour

Behaviour by a suspect as part of a campaign of harassment could include:

 

  • frequent unwanted contact, for example, attending at the home or the workplace of the victim, telephone calls, text messages, emails or use of other mechanisms such as the internet and social networking sites;

  • driving past the victim's home or work;

  • following or watching the victim;

  • sending letters or unwanted 'gifts' or items to the victim;

  • arranging for others to deliver unwanted items to the victim;

  • damaging the victim's property;

  • boasting that they are aware of the location or address of other family members or children;

  • burglary or robbery of the victim's home, workplace, vehicle or other;

  • becoming further and further embedded within a victim's life, for example, by making contact with their friends and family;

  • threats of physical harm to the victim (including sexual violence and threats to kill).

 

Defences to harassment

Three defences are available to harassment:

  • that the course of conduct was pursued for the purpose of preventing or detecting crime; 

  • 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 

  • that in the particular circumstances the pursuit of the course of conduct was reasonable.

 

The last defence is the most commonly used, the reasonableness or not of a suspect’s behaviour is a matter to be determined by the court.

 

In all cases a restraining order can be imposed upon conviction or acquittal if the court considers it necessary to do so to protect a person from ongoing stalking or harassment from the defendant.

 

Harassment is never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

Stalking explained

Stalking is more serious than harassment. It is also split into two offences with a Section 2A and a Section 4A offence.

 

There is no strict legal definition of stalking, but it involves specific behaviour as opposed to harassment more generally. Examples of section 2A are following a person, watching or spying on them or forcing contact with the victim through any means, including social media. The effect of such behaviour is to curtail a victim's freedom, leaving them feeling that they constantly have to be careful. In many cases, the conduct might appear innocent, but when carried out repeatedly so as to amount to a course of conduct, it may then cause significant alarm, harassment or distress to the victim. The maximum prison sentence is 6 months and cases can only be heard in the magistrates court.

 

Section 4A is an aggravated version of stalking where the victim has been put in fear of violence or is caused serious alarm or distress The maximum prison sentence is 10 years and cases can be heard in the Magistrates or Crown Court.

 

In all cases a restraining order can be imposed upon conviction or acquittal if the court considers it necessary to do so to protect a person from ongoing stalking or harassment from the defendant.

Examples of stalking behaviour

The list is not an exhaustive one but gives an indication of the types of behaviour that may be displayed in a stalking offence. The listed behaviours are:

 

  • following a person,

  • contacting, or attempting to contact, a person by any means,

  • publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person,

  • monitoring the use by a person of the internet, email or any other form of electronic communication,

  • loitering in any place (whether public or private),

  • interfering with any property in the possession of a person,

  • watching or spying on a person.

 

Harassment that includes one or more of the above features is not automatically stalking. The course of conduct, assessed in the round, must fit the generally received interpretation of the word 'stalking'.

Defences to section 2A stalking

If the suspect is able to show that any of the defences to harassment apply, he or she cannot be guilty of stalking as without harassment there can be no conviction for stalking.

 

Three defences are available to harassment:

  • that the course of conduct was pursued for the purpose of preventing or detecting crime; 

  • 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 

  • that in the particular circumstances the pursuit of the course of conduct was reasonable.

 

The last defence is the most commonly used, the reasonableness or not of a suspect’s behaviour is a matter to be determined by the court.

 

Section 4A Stalking (Putting People in Fear of Violence) explained

The elements of the section 4 offence are:

  • a course of conduct;

  • which causes another to fear that violence will be used against him; and

  • which the defendant knows or ought to know will cause another to fear that violence will be used against him; and

  • the defendant ought to know that his course of conduct will cause another to fear that violence will be used against them if a reasonable person in possession of the same information would think that the course of conduct would cause the other so to fear on that occasion.

 

Section 4A Stalking (involving fear of violence or serious alarm or distress) explained

The elements of the section 4A offence are:

  • a course of conduct;

  • which amounts to stalking; and

  • which causes another to fear, on at least two occasions, that violence will be used against him or her; or

  • causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities

 

What is a course of conduct?

A course of conduct is defined as being on at least two occasions. Acts might be some distance apart, and yet still constitute a course of conduct. Each case will fall to be determined on its own facts.

 

There are two ways of committing a Section 4A offence:

  1. A course of conduct that amounts to stalking and causes the victim to fear, on at least two occasions, that violence will be used against them.

  2. A course of conduct which causes "serious alarm or distress" which has a substantial adverse effect on the day-to-day activities of the victim. This limb recognises the overall emotional and psychological harm that stalking may cause to victims, even where an explicit fear of violence is not created by each incident of stalking behaviour.

 

The phrase "substantial adverse effect on ... usual day-to-day activities" is not defined in section 4A and thus its construction will be a matter for the courts.

 

However, Home Office guidelines suggest that evidence of a substantial adverse effect may include the following:

 

  • the victim changing their routes to work, work patterns, or employment;

  • the victim arranging for friends or family to pick up children from school (to avoid contact with the stalker);

  • the victim putting in place additional security measures in their home;

  • the victim moving home;

  • physical or mental ill-health;

  • the deterioration in the victim's performance at work due to stress;

  • the victim stopping /or changing the way they socialise.

 

The crucial difference between the offence under section 4 Harassment and an offence under section 4A Stalking is that the latter introduces an additional element, namely that the defendant's offending behaviour causes a victim "serious alarm or distress that has a substantial adverse effect on their usual day-to-day activities".

 

It is the cumulative effect of the stalking which is important and it does not require any particular incident in the stalking to be especially alarming or serious.

 

In determining whether the suspect ought to know that the course of conduct amounts to stalking it is important to understand that it is irrelevant what the suspect thinks amounts to stalking, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to stalking of the other.

 

Defences to Section 4A Stalking

Section 4A includes the following statutory defences. It is for the defendant to show that:

  • the course of conduct was pursued for the purpose of preventing or detecting crime;

  • the 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

  • pursuit of the course of conduct was reasonable for the protection of him or herself or another or for the protection of her, his or another's property.

 

Types of Stalking and Stalkers

There may be different motivating factors which prompt the defendant's behaviour. These could include: revenge; retribution; loneliness; resentment; a desire for reconciliation; response to a perceived insult or humiliation; or a desire for control. The defendant may have a delusional belief that an individual is in love with them, and that sooner or later they will respond.

 

There are 5 classification for stalking:

 

  1. the Rejected Stalker commences stalking after the breakdown of an important relationship that was usually, but not always, sexually intimate in nature. In this group the stalking reflects a desire for reconciliation, revenge, or a fluctuating mixture of both;

  2. the Intimacy Seeker desires a relationship with someone who has engaged his or her affection and who, he or she is convinced, already does, or will, reciprocate that love despite obvious evidence to the contrary;

  3. the Incompetent Suitor also engages in stalking to establish a relationship. However, unlike the Intimacy Seeker, he or she is simply seeking a date or a sexual encounter;

  4. the Resentful Stalker sets out to frighten and distress the victim to exact revenge for an actual or supposed injury. Resentful are differentiated from Rejected Stalkers in that the cause of their resentment does not lie in rejection from an intimate relationship; and

  5. the Predatory Stalker engages in pursuit behaviour in order to obtain sexual gratification.

 

Stalking is serious and complicated. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

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​​​​© Richard Bayliss Freelance Solicitor 2021