This is the second post in our harassment series. Previously we looked at what harassment and stalking are. In the next post, we’ll look at what you can do if you are the victim of a stalker.
We saw in our last post harassment is a criminal offence that is committed when you pursue a course of conduct that amounts to harassment and where you know or ought to know that your actions amount to harassment.
Stalking is essentially harassment with an additional stalking element, such as spying on the other person, following them, publishing material about them or purporting to be from them and so on.
Either offence could see you serving several months in prison while the more serious offences of putting a person in fear of violence and doing so while stalking them could see you go to prison for up to ten-years. So, if you have been accused of harassment or stalking what can you do to defend yourself.
For all four offences, there’s the obvious defence that you did not commit the acts complained about. If you didn’t do the acts then you are not guilty – that’s fairly obvious I hope. Next there’s the defence that you did do the acts but you neither knew nor ought to have known that they amounted to harassment, stalking or that they would cause the necessary fear. This is harder to prove but possible. Let’s take harassment and say that you decide to ask a woman you know on a date. You call her and ask. She declines giving an excuse that she is busy. You call another time and ask again, again she declines because she is busy. You call a third time and next thing you know a policeman has arrested you and is asking why you are harassing this woman. From your point of view, you may think that she is simply saying no because she is busy. From hers she may be hoping that you’d get the hint that she isn’t interested and she’s finding the repeated calls harassing. In that case, you may well be able to argue that you neither knew nor ought to have known that your conduct amounted to harassment.
Let’s assume that you did engaged in the conduct complained of and that you did know that it amounted to harassment from the other person’s point of view. There are still defences potentially available to you if you have a good reason for engaging in that conduct.
The next defences definitely apply to harassment and putting people in fear of violence as well as the stalking version of putting people in fear. There may be an argument that they also apply to the stalking offence as well, we’ll come back to that later. They are called the statutory defence.
It is a defence to your behaviour if you were attempting to investigate or prevent a crime. There is nothing in the Protection from Harassment Act 1997 that says this defence applies only to the police, so it will be available to civilian investigators and even people attempting to investigate crimes against themselves. For example, I have an ongoing case in which a witness has disappeared and refuses to give evidence in court. My client says that he is innocent, and it is this other person, the witness, who is responsible for the offence charged. Should my client pursue the other man, as he has been, and find himself reported to the police for harassment, he would have a defence to the allegation.
It will also be a defence if you are acting in accordance with another rule of law or to comply with a condition imposed upon you by somebody acting under a rule of law. I cannot think of many situations in which this defence would offer itself to somebody who is not in law enforcement, so we’ll leave that one there.
The next statutory defence is that “in the particular circumstance the pursuit of the course of conduct was reasonable”. This could apply to the example of my client earlier but there is an inexhaustible list of situations in which it could be reasonable to repeatedly contact somebody. For example, if you are pursuing repayment of a debt.
I said a moment ago that the statutory defences definitely apply to harassment and putting people in fear of violence. We know that because the Act specifically says so. But, the Act does not specifically say that the statutory defences apply to stalking, which seems odd when they do apply to stalking that puts people in fear of violence. This may be because stalking incorporates the definition of harassment meaning that if you have a defence to harassment you will also have a defence to stalking. I think that must be correct otherwise it would be a crime for police officers, private detectives and so on to follow the people they are investigating.
So, we have seen that there are various defences to harassment and stalking that can be deployed to protect you should you find yourself wrongly accused of a crime. In the next post in the serious we’ll look at what we as solicitors can do to help if you have been the victim of a stalker.