Wasn’t the act introduced to prevent “stalking”?
Yes it was - the Act was introduced in the wake of media hysteria about stalking, and yet as soon as it was passed it was used extensively against animal rights activists.
Can the act be used to protect companies from harassment?
Strictly speaking no, but the act can be used to protect company employees and is currently being used to protect Huntingdon Life Sciences’ employees from animal rights activists. The courts have ruled that company employees do not constitute a sufficiently “close but definable group”. It follows that a charge under Section 2 of the Act alleging harassment of employees of a company could not be successful unless a course of conduct was proved against at least one named employee.
What is a “course of conduct”?
This will depend on all the circumstances. In one case, three threatening phone calls within the space of five minutes were held to be a course of conduct. In another, two instances of harassment separated by a four month period were also deemed to constitute a course of conduct. The courts have ruled that the more time that has elapsed between the two acts, the less likely it is that a course of conduct will be established.
Can there be more than one victim?
Yes there can, so long as there is a sufficient nexus or bond between the victims – eg where they are husband and wife – so that a course of conduct harassing the one would also harass the other. The High Court has ruled that sections 2 and 4 could generally not be used where the victims were defined as “company employees”, and that their common employment was not sufficient to establish a “nexus” between them. However where a civil injunction is brought under Section 3 of the Act, the courts have ruled that it can be brought by one company employee on behalf of all the others – see below. Breach of such an injunction is a criminal offence.
Does there have to be an actual “victim”?
Yes there does. Unlike under sections 1-5 of the Public Order Act 1986, there does need to be an actual victim to testify and this victim actually has to be named. This causes problems for the prosecution where the victim does not wish to testify for fear of being identified. In such a case, the act cannot be used, and the prosecution may use other legislation such as the Public Order Act 1986.
How has the act been used against protestors so far?
Extensively. This act is the main piece of legislation currently being used to stop the group Stop Huntingdon Animal Cruelty (SHAC) in its campaign against Huntingdon Life Sciences (HLS). HLS and several of its Japanese customers have obtained civil injunctions against SHAC prohibiting SHAC’s members from harassing employees and approaching employees’ homes, and restricting protest to once a week in an area designated by the injunction. In each case the court has allowed the claims to be issued in the name of one company employee on behalf of all of the other unnamed employees. This is a novel use of the act and may be challenged at some point in 2004.
These injunctions were the result of meetings between HLS, the home office and the police, and they give the police far reaching powers to control protest. This is because breach of the injunction is a criminal offence and punishable by up to 5 years in prison. It is therefore an “arrestable offence” under Section 24 of PACE thus gives the police far greater powers of arrest in relation to the SHAC campaign than they currently enjoy.
How can the police prove that I have acted in breach of a civil injunction?
To arrest you for breach of an injunction, the police would need to have reasonable grounds to believe that you knew of the terms of the injunction and deliberately acted in breach of them. In order to convict you for this, the prosecution would have to prove this. It is not enough for the prosecution to show that you are a part of an organization named on the injunction – they must have evidence that you are specifically aware of its terms.
This evidence could consist of any of the following:
•A company employee’s testimony that he had served you with a copy of the injunction. The injunction would be deemed to be served if the employee threw it at you, even if you did not pick it up.
•An admission by yourself during police interview that you knew the terms of the injunction
•Evidence found on the hard drive of your computer, for example that you had downloaded copies of the injunction from the internet, or that you had received them via email.
Even if the police do have evidence that you have been served, it is still a defence under Section 3 of the Act that you had a reasonable excuse to breach the injunction. This could be that you had not read the injunction or didn't understand it, even though you had been served.
What are “harassment warnings”?
Difficult question. During the course of the animal rights campaign against the Newchurch guinea pig farm, the police have issued many “harassment warnings”, which warn protestors with regard to their future conduct. Similar warnings have been issued by the police during the course of other protests around the country as well. There is no mention, however, of these warnings in the legislation itself, and they appear to be an invention of the police.
In order to convict you for harassment under Sections 2 or 4 a court has to be satisfied that you were aware that your conduct was causing harassment. So the police could be using the warnings in order to gain evidence in the event of a prosecution.
We believe, however, that the police issue warnings, where there is insufficient evidence to bring charges under the act, for example where a victim is unwilling to testify. They are relying on the warnings instead as a form of intimidation, in the hope that they will prevent activists from protesting in the future.
The warnings have been used in particular where the suspect is thought to be engaging in home demos. The legislation designed to deal with home demos – Section 42 of the Criminal Justice and Police Act 2001 - has been singularly ineffective, hence the invention of the “harassment warning” in a rather desperate attempt to stop such demos from taking place. In one case we know of a police officer drove 100 miles to deliver a harassment warning in person!
It is significant that despite the number of harassment warnings issued at Newchurch, not a single recipient has so far been prosecuted under the act.
What defences are available?
As with Sections 4A and 5 of the Public Order Act 1986, it is a defence to show that your conduct was reasonable, and the same arguments apply here as they do to those sections. In the context of a campaign, the police as well as the courts must counterbalance the human rights of the individual to protest against the rights of citizens to be free from harassment. High Court decisions have ruled that the act cannot be used to protect companies, but they have allowed it to be used to protect company employees.
The High Court has ruled in one case, that any action in breach of a civil injunction could never amount to “reasonable conduct” and it has also ruled that it is unlikely that any action involving trespass could be regarded as reasonable.
Powers of Arrest and Punishment
Section 2 of the act is punishable by up to 6 months imprisonment or a fine and / or a restraining order preventing you from continuing the course of conduct. This is an “arrestable offence” (Section 24 PACE).
Section 4 of the Act is punishable summarily by up to six months imprisonment or by up to five years imprisonment on indictment It is therefore an arrestable offence.
Breach of a civil injunction issued under Section 3 of the Act is punishable either way by up to 6 months imprisonment summarily or 5 years on indictment. It is therefore an “arrestable offence” (Section 24 PACE).
The courts may also order a restraining order against you preventing you from committing further acts of harassment. These typically consist of an order restraining you from approaching the victim (who has to be named). Breach of such a restraining order is punishable either way by up to six months imprisonment summarily or by up to five years’ imprisonment and is therefore an “arrestable offence” (Section 24 PACE).
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