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LEGAL ADVICE FOR ACTIVISTS

17. Harassment

Contents

17.1 Protection From Harassment Act 1997
17.2 Frequently Asked Questions
17.3 Anti-Social Behaviour Orders

17.1 Protection from Harassment Act 1997

Section 2 of the Protection from Harassment Act 1997 (‘the Act’) makes it an offence for a person to pursue a course of conduct which amounts to harassment of another, and which he knows, or ought to know, amounts to harassment of the other. Such a course of conduct need only amount to two separate acts, and, unlike under Section 5 of the Public Order Act 1986, there is no need to prove disorderly conduct or threatening behaviour.

Section 4 of the Act creates the more serious offence of pursuing a course of conduct causing a person to fear that violence will be used against them on at least two occasions.

Section 3 of the Act provides for a civil remedy, whereby an injunction can be obtained in the High Court prohibiting a course of conduct that causes harassment or distress.

17.2 Frequently Asked Questions

Wasn’t the Act introduced to prevent “stalking”?
Yes it was - the Act was introduced in the wake of well publicised “stalking” cases, and yet as soon as it was passed it was used extensively against animal rights activists and other protest groups.

Can the Act be used to protect companies from harassment?
Strictly speaking no, but the Act can be used to protect company employees under civil injunctions (see the next section on “Injunctions”) and is currently being used to protect Huntingdon Life Sciences’ employees from animal rights activists. Several of their customers have also succeeded in obtaining injunctions under the Act, and these are currently amongst the main tools being used by the police against anti-vivisection activists.

The courts have ruled that the Act can be used in criminal prosecutions to protect individuals who constitute a sufficiently close-knit group – for example a husband and wife – but not large groups of company employees. It follows that a criminal charge under the Act alleging harassment of employees of a company could not be successful unless a “course of conduct” was proved against at least one named employee.
The government has proposed to amend the law, to make it an offence to harass a group of employees – see section 26 on “New Legislation”.

What is a “course of conduct”?
This will depend on all the circumstances. In one case, three threatening phone calls within the space of five minutes were held to be a course of conduct. In another, two instances of harassment separated by a four month period were also deemed to constitute a course of conduct. The courts have ruled that the more time that has elapsed between the two acts, the less likely it is that a course of conduct will be established.

Can there be more than one victim?
Yes there can, so long as there is a sufficient nexus or bond between the victims – for example where they are husband and wife – so that a course of conduct harassing the one would also harass the other. The High Court has ruled that sections 2 and 4 could generally not be used where the victims were defined as “company employees”, and that their common employment was not sufficient to establish a “nexus” between them. However where a civil injunction is brought under Section 3 of the Act, the courts have ruled that it can be brought by one company employee on behalf of all the others. Breach of a civil injunction is a criminal offence.

Does there have to be an actual “victim”?
Yes there does. Unlike many offences under the Public Order Act 1986, there does need to be an actual victim to testify and this victim has to be named. This causes problems for the prosecution where the victim does not wish to testify for fear of being identified. In such a case, the Act cannot be used, and the prosecution may use other legislation such as the Public Order Act 1986.

What are “harassment warnings”?
Difficult question. During the course of several animal rights campaigns the police have issued many “harassment warnings”, which warn protestors with regard to their future conduct. Similar warnings have been issued by the police during the course of other protests around the country as well. There is no mention, however, of these warnings in the legislation itself.

We believe that the police issue these warnings, where there is insufficient evidence to bring charges under the Act, for example where a victim is unwilling to testify. They are relying on the warnings instead as a form of intimidation, in the hope that they will prevent activists from protesting in the future.

Another reason for these warnings is to aid any future prosecution. If you are charged, the prosecution will have to show that you knew or ought to have known that your conduct was causing harassment (s2) or fear of violence (s4). It will help their case if they can produce evidence – such as the issue of a police warning - showing that you must have known that your conduct was having this effect

The warnings have been used in particular where the suspect is thought to be engaging in home demos. Legislation designed to deal with home demos has been singularly ineffective, hence the use of the “harassment warning” in a rather desperate attempt to stop such demos from taking place.

What defences are available?
As with Sections 4A and 5 of the Public Order Act 1986, it is a defence to show that your conduct was reasonable, and the same arguments apply here as they do to those sections. In the context of a campaign, the police as well as the courts must counterbalance the human rights of the individual to protest against the rights of citizens to be free from harassment

Powers of Arrest and Punishment
Section 2 of the act is punishable by up to 6 months imprisonment or a fine and / or a restraining order preventing you from continuing the course of conduct. This is included in the schedule of “arrestable offence” in Section 24 PACE

Section 4 of the Act is punishable summarily by up to six months imprisonment or by up to five years imprisonment on indictment. It is therefore an arrestable offence.

In addition the courts may order as part of sentence a restraining order against you preventing you from committing further acts of harassment. These typically consist of an order restraining you from approaching the victim (who has to be named). Breach of such a restraining order is punishable either way by up to six months imprisonment summarily or by up to five years’ imprisonment and is therefore an “arrestable offences’.

17.3 Anti-Social Behaviour Orders - Section 1 Crime and Disorder Act 2001

This section allows magistrates to issue an anti-social behaviour order (‘ASBO’) against anyone who has acted in an anti-social manner. Anti-social behaviour is defined as behaviour which has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household as oneself.
The power to issue ASBOs is being exercised more widely by magistrates now, as the procedure for the issue of an ASBO has been made much simpler. An ASBO can now be ordered after conviction for a criminal offence without the need for the prosecution to make a specific application.

Magistrates may issue you with an ASBO if it is proved that you have acted in an anti-social manner and an order is necessary to protect persons in the area in which your anti-social behaviour took place. It is not a criminal conviction and in order for one to be issued against you, it only needs to be proved “on a balance of probabilities” to have engaged in anti-social behaviour.

There is no need for a witness to testify that they have actually been harassed and an ASBO can be based on the evidence of a police officer that you have acted in a way that was likely to cause harassment, alarm or distress. You may say in your defence that your conduct was reasonable, and here your argument might be that you were exercising the legitimate right to protest.

If the case against you is proved, you will be issued with an ASBO prohibiting you from doing anything considered necessary to prevent further anti-social behaviour. Such an order is likely to include prohibiting you from entering certain areas or approaching individuals. It must be proportionate, which means it must not restrict your behaviour more than is necessary to prevent you from engaging in further anti-social acts.
It is an offence to breach an ASBO without reasonable excuse, punishable either way by 6 months imprisonment or a fine summarily or by up to 5 years imprisonment on indictment. It is therefore an arrestable offence.

As of August 2004 ASBOs have already been used against two animal rights protestors. In one case, a protestor has been ordered not to enter Cambridgeshire (other than to pass through) and not to protest against certain customers of HLS for 3 years. Animal rights protestors can expect to see more widespread use of ASBOs against them in the future as they form part of the government’s recently stated offensive against “extremists”.

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