England & Wales – Criminal Law

In this section we set out a summary of the law against stalking. It is intended to give you some guidance on the subject but it is not intended to be a complete statement of the law. Therefore you should not rely on it. Before taking any action against stalking you should consult a solicitor who has expertise in this area.

The Protection from Harassment Act 1997.

The 1997 Act is often called the ‘anti-stalking law’ but it does not use the word ’stalking’ nor does it really define harassment. Section 1(1) says it’s unlawful to ‘pursue a course of conduct which amounts to harassment of another and which the defendant knows or ought to know amounts to harassment of another’. Section 7 explains the meanings of harassment include ‘alarming the person or causing the person distress’ and that a ‘course of conduct’ must involve conduct on at least 2 occasions. Conduct, Section 7 explains, includes speech.

Section 1 (2) says that a person ought to know that a course of conduct amounts to harassment if a reasonable person in possession of the same information would think that it amounted to harassment. Therefore it is down to the court to decide whether the conduct in a case amounts to harassment.)

Section 4 says it is an offence to put someone in fear of violence.

What defences are available under the 1997 Act?

The defendant can, of course, simply say that he did not do the acts which it is alleged he has committed. But, he/she can also rely on the defences in section 1 (3):

that it 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.

However, it is for the defendant to prove those defences. He/she must prove them on the balance of probabilities.

What are the punishments under the 1997 Act?

The section 2 offence (which can only be tried in a Magistrates Court) is punishable by a maximum of 6 months imprisonment or a fine not exceeding level 5 on the standard scale (currently £5,000) or both.

The section 4 offence (which can be tried in either the Magistrates Court or the Crown Court) is punishable in the Magistrates Court by a maximum of 6 months imprisonment or a fine not exceeding level 5 on the standard scale (currently £5,000) or both. In the Crown Court the offence is punishable by a maximum of 5 years imprisonment or a fine or both.

Is there anything else the court can do under the 1997 Act?

The court sentencing the defendant can also impose a ‘restraining order’. This is an order of the court which bans the defendant from doing certain things for a certain period of time. For instance, the court may order the defendant never to contact or attempt to contact the victim of his harassment again or it may order him not to enter a particular road or area for, say, 2 years. The question of how wide the order should be and for how long it should last is up to the sentencing court and no guidelines have, so far, been set by the appeal courts.

Harassment and The Law

This section is intended to give you some guidance on the subject of harassment but it is not intended to be a complete statement of the law. Therefore you should not rely on it. Before taking any action against harassment you should consult a solicitor who has expertise in this area.

Harassment comes in many guises, stalking behaviour, being one strand of behaviour. However, there are many forms of harassment which are based on anti-social behaviour against members of a community, which have become the subject of recent legislation. In addition, there are a number of laws which may be relevant to a racial harassment case. (see below)

Anti-social Behaviour:

The Home Office lists the following as examples of anti-social behaviour; nuisance neighbours, rowdy and nuisance behaviour, yobbish behaviour and intimidating groups taking over public spaces, vandalism, graffiti and fly-posting, people dealing and buying drugs on the street, people dumping rubbish and abandoning cars, begging and anti-social drinking and the misuse of fireworks.

Below we’ve included some information that might help you if you’re dealing with a harassment problem. You can also find more information at the following government web-site – Anti-Social Behaviour

What the government is doing to tackle Anti-social behaviour:

Acceptable Behaviour contracts (ABCs) or Agreements (ABAs)

Acceptable Behaviour Contracts (ABCs) or agreements (ABAs) are written contracts made between local agencies (often the Police, Local Authority or Youth Offending Team) and the individual. ABCs have no statutory basis and are voluntary contracts that have emerged as effective and inexpensive ways of curbing anti-social behaviour at an early stage. An ABC will normally set out the way in which the individual must behave in the future as well as action that will be taken by the agency. It will also set out the possible consequences of breaking the agreement

Anti Social Behaviour Nuisance related Notice Seeing Possession (NOSPs)

Notices Seeking Possession (NOSPs) are the first stage of legal action against tenants causing persistent ASB nuisance. Tenants should be informed of a landlord’s intention to seek a notice seeking possession. This creates a further opportunity for tenants to make contact to resolve the problem and demonstrates in subsequent court actions that landlords have made further efforts to resolve the arrears prior to legal action.

Demotion Orders (Demoted Tenancies) issued by Social Landlords

The Anti-social Behaviour Act 2003 introduced a power that enables all social landlords to ‘demote’ secure tenancies of tenants if they are behaving anti-socially. Demotion removes the tenant’s right to buy and security of tenure for at least a year. Demoted tenancies are civil orders granted in the county court and are available in instances when a tenant behaves anti-socially, or allows a member of their household to do so. They are also available where there has been unlawful use of the premises. A social landlord can apply for a demotion order, which ends the tenant’s existing tenancy and replaces it with a less secure one.

Housing Injunctions or ASBIs (under 1996 Housing Act or Local Government Injunctions Under Local Government Act 1972)

The Housing Act 1996 originally set out the basis on which ASBIs can be granted by the court and this was modified by the Anti-social Behaviour Act 2003. These injunctions are which are used in situations where conduct ‘is capable of causing nuisance or annoyance to any person’, and directly or indirectly relates to or affects housing management functions of the social landlord. The power is available to all social landlords (including RSLs).

Injunctions under section 222 of the Local Government Act 1972 gives local authorities a general right to institute civil legal proceedings in their own name to promote or protect the rights of inhabitants of their area. The local authority uses the authority of the Local Government Act 1972 to bring injunction proceedings in the county court to prohibit a person from continuing a public nuisance.

Asb- related Eviction Orders:

Individuals or families living in social housing and committing persistent acts of ASB which have a negative impact on the surrounding community can be evicted by either the local authority or RSL if they ignore warnings to change their behaviour. Typically they are given 28 days notice by the landlord and then evicted.

Interim and Stand alone Asbos:

Interim ASBOs are civil orders made against anyone aged 10 years or more where the person has acted in an anti social manner that causes or is likely to cause, harassment, alarm or distress to others and where it is necessary to protect persons from further anti social acts. Interim ASBOs are applied for immediately by lead agencies and can be made (ex parte) in the courts (Youth, Magistrates’ or County Courts), and the judge then grants an ‘interim’ ASBO. Stand Alone ASBOs are applied for by lead agencies once they have gathered and submitted sufficiently robust and appropriate evidence. The judge then grants the ASBO.

Individual Support Orders:

Individual Support Orders (ISOs) are designed to provide support to individuals subject to ’stand alone’ Anti-Social Behaviour Orders (ASBOs) by providing tailored interventions to prevent reoccurrence of the behaviour which led to the ASBO. Before making an individual support order the court considers information from a social worker or youth offending team member on the appropriateness of the order and the terms of the order. The requirements of the order and consequences for failing to comply with it are explained to the defendant by court when the order is issued by the judge.

Asbos on Conviction (CRASBOs)

ASBOs on conviction are civil orders made against anyone aged 10 years or more where the person has acted in an anti social manner that causes or is likely to cause, harassment, alarm or distress to others and where it is necessary to protect persons from further anti social acts. CRASBOs are applied for by lead agencies and are issued as a civil proceeding in addition to an individual’s criminal hearing and conviction.

Crack House Closures:

The Anti-social Behaviour Act 2003 introduced this power to enable the closure of properties taken over by drug users or dealers of Class A drugs. A senior Police officer issues a closure notice on premises that they have reason to believe are being used for the production, supply or use of Class A drugs and is causing serious nuisance or disorder. This notice is turned into a Closure Order by the court and can last for up to 3 months (but can be extended for a further 3 months)

Parenting Contracts:

The Anti-social Behaviour Act 2003 puts parenting contracts on a statutory footing and provides opportunities for schools and local authorities, as well as Youth Offending Teams, to enter into a parenting contract with parents in certain circumstances. A parenting contract is a voluntary written agreement between a lead agency and the parents or guardians of a child or young person. Any agency can set up an informal parenting contract (on the same lines as ABCs). They can be used alongside other interventions and set out what parents will do to address the anti-social behaviour of a child or children for whom they are responsible.

Parenting Orders:

If the parent is unwilling to co-operate with a voluntary parent contract, the lead agency can apply for or recommend a parenting order to the Magistrates’ Court. The judge can then issue a ‘Free-standing’ Parenting Order. Parenting Orders can also be linked to conviction proceedings or other orders within the court. In this scenario Parenting orders can be made under the court’s own motion.

The Government have also published their ‘Respect Action Plan’ which builds on the current drive to tackle anti-social behaviour and reclaim communities for the law-abiding majority – for detail, view the Government websit.

Racial Harassment

The Crime and Disorder Act 1998 introduces a range of racially-aggravated* offences which correspond to existing types of violent crime and harassment, but which carry higher penalties.

*An offence is racially-aggravated if the offender is motivated by or demonstrates hostility towards the victim’s racial group, a term defined to include race, colour, nationality or ethnic origin. If a racial element to an offence is unproved, the courts may still convict on the basic offence.

The offences defined in the law are racial aggravated assaults, racially aggravated criminal damage, racially aggravated public order and racially aggravated harassment. As stated, the maximum penalties for these offences are higher due to the racial element. They are as follows:

Racially-aggravated assaults:

malicious wounding/grievous bodily harm – 7 yrs imprisonment and fine
actual bodily harm 7 years imprisonment and fine
common assault 2 years imprisonment and fine

Racially-aggravated public order

fear or provocation of violence 2 years imprisonment and fine
intentional harassment, alarm or distress 2 years imprisonment and fine
Harassment, alarm or distress level 4 fine.

Racially-aggravated harassment

harassment – 2 years imprisonment and fine
Putting people in fear of violence – 7 years imprisonment and fine.

There are also a number of areas of civil law that relate to harassment.

The Protection from Harassment Act allows the courts to award damages in favour of the victim. It also allows the court to grant an injunction (i.e. an order requiring the defendant either to do or not to do particular acts) – breach of this constitutes a criminal offence.

The Race Relations Act 1976 makes it unlawful to discriminate against anyone on racial grounds in several areas including employment, education, housing and service provision. Racially motivated harassment and violence amount to discrimination. A court or tribunal can award unlimited compensation for injury to feelings.