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Criminal Defence Articles

What are the Harassment Sentencing Guidelines?

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Harassment is a word that is used frequently in common parlance, often in the context of relationships that have ended. But what does it mean in law, and when can you be found guilty of this offence? If convicted, what sentence will you face? Often, the line between what is criminal conduct, and what is not, is not so easy to define. Perhaps you are a father trying to organise contact with your children, or a worker attempting to get paid for work that you have done. At what point does persistent but reasonable communication become unlawful harassment? This article addresses the offence of harassment, and how this offence will be treated by the police and by the courts. You should walk away with a clearer idea of where the law lies, whilst at the same time seeing that this is a legal grey area that is often subject to dispute in the courts.

What is harassment?

In law, harassment is both a criminal offence and a cause of action for a civil claim by one individual against another. This article focuses on harassment as a criminal offence. The criminal offence of harassment is set out at Section 2 of the Protection from Harassment Act 1997.

Section 1 provides that:

A person must not 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.

Harassment is not defined within the legislation. However, the law states that a person ought to know that an action or actions amount to harassment if a reasonable person in possession of the same information considers that the action amounts to harassment. The CPS states that harassment ‘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.’

Case law has found that repetitive false allegations can in some circumstances amount to harassment. The case that confirmed this concerned repeated false allegations of misconduct against a doctor to medical regulators.

Groups of people can also be victims of ‘collective’ harassment. For example, members of a household, residents of a neighbourhood, or a group of people sharing a common characteristic such as race, or sexuality. For example, harassment of individuals who attend a particular gay club, service users of an abortion clinic, or members of a specific trade union.

There are also cases where a defendant has been convicted of harassment for pursuing a course of behaviour against one person, knowing that it will impact upon someone else. Say, for example, a defendant relentlessly calls the sister of their ex-partner, knowing that this will be perceived as distressing by their ex-partner.

It is a defence if the conduct was pursued for the purpose of preventing or detecting crime e.g. contact from a police investigating officer, HM Revenue and Customs, or the Post Office. This only applies where the harasser has acted rationally. It is also a defence if the conduct was pursued under any enactment or rule of law to comply with any condition or requirement imposed by any person. This means that a bailiff, acting within the limits of their power, could not be found guilty of the Section 2 offence nor would a mortgage company threatening to repossess a home for failure to keep up with payments. It is also a defence, if in the particular circumstances, the defendant’s conduct was reasonable. This is a widely drafted defence, which could apply in quite a variety of circumstances. It includes where the defendant was acting in the course of a legitimate trade or profession.

Where harassment is racially or religiously aggravated, there is a separate offence under the Section 32 of the Crime and Disorder Act 1998. This is a more serious offence, with a longer possible custodial sentence in comparison with Section 2 of the Protection from Harassment Act.

There is also another more serious offence under Section 4 of the Protection from Harassment Act, where a person has pursued a course of conduct that causes another to fear, on at least two occasions, that violence will be used against them, and the person knows or ought to know that their course of conduct will cause this fear. Similarly to the Section 2 offence, it is a defence to Section 4 if the conduct was pursued for the prevention or detection of crime, or pursued under any enactment or rule of law. There is an additional defence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of their property, or the property of another.

What can the police do about harassment?

Because harassment is a criminal offence, if the police receive a report of activity that appears to constitute harassment, they are obliged to investigate in order to determine whether a criminal offence has been committed. This means that they must pursue all reasonable lines of inquiry, including those that support any defences that the defendant has raised or is likely to raise.

The police will investigate by taking a statement from the complainant(s) and any witnesses. Where the harassment is said to have occurred electronically, the police will seize any relevant electronic devices. If they suspect harassment has been committed, or is being committed, they may arrest the suspect. Alternatively, they could ask the suspect to attend a voluntary interview. Once the interview has taken place, the police/CPS will decide whether to charge the suspect. In order to lay a charge, the police must take the view that the case has a better than 50% chance of success, and that a prosecution is in the public interest.

What happens when you get charged for harassment?

If you are charged with harassment, you will be remanded in custody following your arrest, or if you have not been arrested, you will be summoned to appear at the Magistrates’ Court where you will be asked whether you intend to plead guilty or not guilty.

If you plead guilty, the court will proceed to consider sentencing. If you plead not guilty, the case will be listed for a trial. The CPS will serve the evidence on which they intend to rely upon your defence solicitor. Your defence solicitor will contact witnesses who support your version of events and obtain statements from them. All the witnesses with relevant evidence to the prosecution and the defence’s case will need to attend the trial.

At the conclusion of the trial, the judge will either find you guilty or not guilty. If you are found guilty, you will be given either a custodial sentence, a fine, or a community order. In addition to a sentence, the court has the power to grant a restraining order, preventing the defendant from contacting the victim. Breach of a restraining order, without reasonable excuse, is also a criminal offence.

What is the minimum sentence for harassment?

The minimum sentence for harassment is a fine, or a low level community order. In some exceptional circumstances, where there are strong mitigating factors suggesting that you should not be punished, you could receive a discharge. This means that you are found guilty but dismissed without punishment. Harassment is a summary only offence, which means that it will usually be heard in the Magistrates’ Court. The maximum punishment is a custodial sentence not exceeding 6 months, or a fine, or both.

The more serious offence of putting people in fear of violence is triable either way. This means that it can be heard in the Magistrates’ Court if the judge perceives that they have adequate sentencing powers, and the defendant elects for the case to remain in the same court.

Alternatively, if the case concerns complex issues, the Magistrates’ Court does not have adequate sentencing powers or the defendant elects for their case to be heard before a jury, it can be sent to the Crown Court. If it is heard in the Magistrates’ Court, the maximum sentence is also 6 months imprisonment or a fine. However, if it is heard in the Crown Court, the perpetrator could be sentenced for up to 10 years, or given a fine, or both. If a defendant is charged with putting people in fear of violence, but the threshold for this offence is not met, they can be found guilty of harassment instead.

Racially or religiously motivated harassment is also triable either way. If the case is heard in the Crown Court, it can result in a custodial sentence of up to 2 years.

Where to get further help

If you have been charged with harassment, make sure that you instruct a criminal defence solicitor in whom you have faith. At Stuart Miller Solicitors, our solicitors will explain the law to you clearly and take you through your possible options. Should you decide to enter a not guilty plea, we will help you prepare the best possible defence. We could even get your case dropped before court. Contact us for a no-obligation consultation today.


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