1.3 million domestic abuse related incidents were reported to the police last year.
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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.
From a victim point of view it is an incredibly easy offence to report, because it is 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. This can give a victim protection via the bail conditions imposed on the suspect.
For suspects, 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.
Disputing these allegations and building a defence is like navigating a minefield. How evidence is presented can lead to the case being dropped entirely or a charge for this offence or another linked offence such as assault, criminal damage, stalking, controlling or coercive behaviour, threats to kill, breach of protective order, social media offences and public order offences.
Evidence could also help defend an application for a Domestic Abuse Protection Order (DAPO), Restraining Order or Non-Molestation Order.
Key points for suspects
This is an easy offence to allege, which can result in you being made subject to restrictive bail conditions while the case continues.
Avoiding prosecution requires a robust evidence-based defence case to be built to undermine the allegations made and show that any behaviour was reasonable. This can speed up removal of bail conditions and have seized property such as mobile phones and computers returned to you.
There remains the risk of being charged with alternative overlapping offences such as stalking, coercive or controlling behaviour, social media, public order and communications offences. It is also plain that any evidence gathered in a prosecution investigation could also provide evidence to support an application for a Domestic Abuse Protection Order (DAPO), Restraining Order or Non-Molestation Order in favour of the victim.
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.