First published on the Brett Wilson Crime, Fraud and Regulatory Law Blog on 30 January 2017
The Protection from Harassment Act 1997 (PHA) was introduced to target stalking. For the most part, Parliament had strangers in mind, whether physically following a victim and/or persistently giving them unwanted attention. As is often the way, enforcement of the Act evolved from those early intentions. Now, the vast majority of prosecutions involve people who know each other, one of them reporting that they are the victim of a course of conduct which amounts to harassment by the other, and which that person knew or ought to have known caused them harassment alarm or distress. The basic offence, section 2 of PHA, is a summary-only offence (meaning it can only be tried in the Magistrates’ Court) but the more serious offences of harassment putting people in fear of violence (section s4 of PHA), or stalking involving fear of violence or serious alarm or distress (section 4A of PHA), can be tried in the Crown Court and both incur up to five years imprisonment.
These days, the majority of prosecutions relate to unwanted attention from an ex-partner of the complainant, or at least someone who describes themselves as such. The PHA has become the realm of unrequited affection which turns nasty, or acrimonious break-ups which refuse to go quietly into the night. There are also many cases of third parties to a relationship being targeted, although prior romances and love triangles are often the trigger. There are also cases of people repeatedly protesting about or targeting corporate or government bodies, but these are the minority.
Harassment is both a criminal offence and a civil cause of action. If the criminal offence is made out in law, harassment can either be prosecuted or (typically if admitted by the suspect) be the subject of a police caution. Importantly, there is a statutory defence under s1(3)(c) that in all the circumstances, the defendant’s course of conduct was reasonable. Therefore, in order to properly assess a ‘he said, she said’ case, police must carefully consider both sides.
Before a proper investigation of those facts, a harassment warning might be served on the suspect. The harassment warning is more formally known as a Police Information Notice (PIN) and has a very odd status. It does not require any finding of fact. It does not have to take account of any explanation or outright denial the accused might have. It does not infer guilt and only reflects one side of the story. Thus the PIN probably does very well in the costs-benefits analysis undertaken by police force accountants.
However, an enhanced Criminal Records Bureau check can reveal the existence of a PIN previously issued if, in the chief police officer's opinion, that PIN might be relevant and ought to be disclosed on an enhanced DBS certificate.
More immediately, the service of a PIN (often done in person by a police officer coming to D’s home) may give D the impression that if the accused contacts the complainant again, they are at risk of being prosecuted – simply because the complainant apparently finds their contact distressing. Certainly, for the less robust or litigious recipient of a PIN, it can act as a de facto Restraining Order, but one without any recourse or due process whatsoever.
Despite this, a PIN cannot be appealed or challenged before a Court as it is not a factual finding. There are very limited powers to have it rescinded by police agreement or made subject to a Judicial Review. Either of those courses may well involve high legal fees with very uncertain prospects of success.
In its effect then, a PIN is that rare device which potentially criminalises alleged conduct which has neither been proven nor admitted. It is almost unique to harassment, the rationale being that as harassment is a ‘course of conduct’, receipt of the PIN might help to disrupt and prevent the offence without formal police action. However, assuming that reasoning is sound then it begs the question: why do we not see PINs for other offences which also involve ongoing conduct? Why do those suspected of ongoing tax evasion not receive a PIN – which might be disclosed later within their enhanced DBS certificates? Or those suspected of laundering money? Or dealing in drugs, for that matter? Are the benefits of a Police Information Notice believed to be unique to this specific area of law?
The Prime Minister, when Home Secretary in 2011 said “We recognise that there are concerns around the process by which these notices (PINs) are issued. Some argue that those issued with a police information notice are not given a fair hearing. Equally we are aware that some consider police information notices to lack teeth, and believe they give victims a false sense of security.” However, nothing substantive has changed since 2011. There is a difference between recognising a problem, and actually sorting it out. The fact remains harassment PINs are notices which are handed out based on unproven allegations, and which might later be disclosed by police in certain criminal records checks.