Expert Legal Adviser MILTON FIRMAN asks: What if I am charged with Stalking or Harrassment?

Oct. 20, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

This addresses behaviour which is repeated and unwanted by the victim and which causes the victim to have a negative reaction in terms of alarm or distress. Cases involving stalking and harassment can be difficult to prosecute, and because of their nature are likely to require sensitive handling, especially with regard to victim care.

The term harassment is used to cover the 'causing alarm or distress' offences under section 2 of the Protection from Harassment Act 1997 as amended (PHA), and 'putting people in fear of violence' offences under section 4 of the PHA. The term can also include harassment by two or more defendants against an individual or harassment against more than one victim.

The harassment of another or others can include a range of offences such as those under: the Protection from Harassment Act 1997; the Offences Against the Person Act 1861; the Sexual Offences Act 2003; and the Malicious Communications Act 1988.

Closely connected groups may also be subjected to 'collective' harassment. The primary intention of this type of harassment is not generally directed at an individual but rather at members of a group. For example: members of the same family; groups of a specific identity including ethnicity or sexuality, for example, the harassment of gay clubs.

Harassment of an individual can also occur when a person is harassing others connected with the individual, knowing that this behaviour will affect their victim as well as the other people that the person appears to be targeting their actions towards. This is known as 'stalking by proxy'. Family members, friends and employees of the victim may be subjected to this.

Certain groups of professionals are particularly susceptible to harassment connected with their work. These include doctors, judges, police officers, teachers and other authority and public figures.

There is no legal definition of 'stalking'. Neither is there specific legislation to address this behaviour. Rather, it is a term used to describe a particular kind of harassment. Generally, it is used to describe a long-term pattern of persistent and repeated contact with, or attempts to contact, a particular victim.

Examples of the types of conduct often associated with stalking include: direct communication; physical following; The behaviour curtails a victim's freedom, leaving them feeling that they constantly have to be careful.

In many cases, the conduct might appear innocent (if it were to be taken in isolation), 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

Protection from Harassment Act 1997

A court dealing with a person convicted of an offence under s.2 or 4 of the Act may make an order prohibiting the defendant from doing anything described in the order.

Section 12 of the Domestic Violence, Crime and Victims Act 2004 extended the availability of restraining orders under the PHA to all offences. It provides the courts with the power to make a restraining order even when a person has been acquitted, where the court considers it necessary to do so to protect a person from ongoing harassment from the defendant.

The PHA includes the following provisions:

•Harassment (s.2)
•Fear of violence (s. 4)
•Breach of a civil injunction (s.3(6))
•Breach of a restraining order (s.5(5));

The elements of the s.2 offence are:

•a course of conduct;
•which amounts to harassment of another; and
•which the defendant knows, or ought to know amounts to harassment of another.

Or section 1(1A), as inserted by section 125(2) of the Serious Organised Crime and Police Act 2005 (SOCPA)

•a course of conduct;
•which involves harassment of two or more persons; and #
•which the defendant knows or ought to know involves harassment of those persons;
•by which he intends to persuade any person (whether or not one of those mentioned above)
•not to do something that he is entitled or required to do; or
•to do something that he is not under any obligation to do.

In determining whether the defendant ought to know that the course of conduct 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.

Defence - Harassment - s.2

Three defences are available to the section 2 offence:

•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 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.

Defence - Putting People in Fear of Violence - s.4

Section 4 also 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.

The first defence is that the course of conduct was pursued for the purpose of preventing or detecting crime. This most obviously applies to the police and any other investigative agencies such as the Post Office or HMRC

The second defence to sections 2 and 4 states that 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 the enactment. This most obviously applies to companies acting within their legal entitlement, for example, a Building Society manager warning in writing of repossession proceedings, because of default in mortgage payments, followed by repossession taking place.

The third defence to section 2 is that the defendant was acting reasonably in the particular circumstances. This is a wide defence, which covers the pursuit of a legitimate trade or profession. Ultimately, the decision as to what amounts to reasonable behaviour will rest with the courts.

Section 7 defines a course of conduct as being on at least two occasions.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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