Protection from Harassment Act 1997
This paper discusses the Protection from Harassment Act 1997. This paper is not complete.
In written answer to a parliamentary question, Mr Maclean MP said that in drafting the Bill for this Act, his officials had looked at the anti-stalking laws of Australia, Canada and the United States, and, because those laws generally criminalised only acts that were already offences in the United Kingdom, concluded that a new approach would have to be developed by the United Kingdom. That conclusion does not follow from the premise. The logical conclusion would have been that stalking was effectively already a crime in the United Kingdom and there was therefore no need for any new legislation in respect of it.
The explanatory memorandum to the Bill for this Act said that it was expected to result in two hundred prosecutions a year. It has in fact resulted in several thousand prosections a year. One might infer from that that the Act may have been used in a way that was never intended or forseen by those responsible for it. One possible response to this might be for Parliament to enact that prosecutions under the Act are not to be brought without the consent of the Director of Public Prosecutions and that he is not allowed to consent to more than two hundred prosecutions each year. This would not, however, necessarily prevent the DPP from consenting to two hundred frivolous prosecutions each year.
In Howlett v Holding, the judge said it appears that section 1(3)(a) is framed with law enforcement agencies in mind and that even if that was too rigid a construction, a private citizen before being able to avail himself of that defence would at least have to show that there was objectively judged some rational basis for the surveillance. It is submitted that that construction is not just wrong but more or less the reverse of the correct construction. A constable is supposed to be a professional and ought therefore to be exercising a professional level of skill. He has absolutely no excuse for doing anything unreasonable because he is supposed to know how to do his job properly and is paid large sums of public money to do it properly. He does not need and should not have a defence of this kind. An unpaid private individual, on the other hand, could reasonably be given a certain degree of latitude.
The judge also said that the submission of counsel, that as a matter of construction it simply cannot be right that section 1(3)(a) is intended to enable anyone to set himself up as a vigilante and harass his neighbours under the guise of preventing or detecting crime, was a fair point. The problem with that argument is, that if that is correct, then as a matter of construction, it equally cannot be right that section 1(3)(a) is intended to enable a constable (who should know better) to do exactly the same thing with much greater moral culpability.
The judge also asserted that section 1(3)(a) was explained clearly by the then Home Secretary as being to prevent law enforcement agencies from being sued for harassment in circumstances where they were merely carrying out their duties of detection or crime prevention. The passage from Hansard cited by the judge does not clearly say any such thing. It is far more likely that the words "these legitimate activites" at the end of the passage were meant to include to the "police activities" mentioned in the third sentence of the passage. It is not likely that the words "special provision" in the said third sentence were meant to refer to section 1(3)(a) and not to section 1(3)(c). If the said third sentence was meant to refer to section 1(3)(a), surely it would have come before the second sentence, not after.
Section 2A of this Act was inserted by the Protection of Freedoms Act 2012. On the face of it, the inclusion of that amendment in an Act ostensibly for the protection of freedoms makes no sense because the obvious tendency of that amendment is to restrict personal freedom.
Section 2A(3) begins with the words "The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking". The Act does not specify what the said "particular circumstances" are. The gist of the original offence of "stalking" under 646.9 of the California Penal Code (inserted in 1991) was making a credible threat of death or great bodily injury. It is therefore suggested that the "particular circumstances" referred to in the said section 2A(3) are that the offender has made a credible threat to kill or cause serious injury and that the conduct described in sections 2A(3)(a) to (g) is in some way related to that threat.
Section 7(2) provides that references to harassing a person include references to alarming the person or causing the person distress. This provision appears to have been included because section 4A of the Public Order Act 1986, on which the Bill for this Act was said to build, included the expression "harassment, alarm or distress" and the draftsman inferred from the wording of that section that the word "harassment" does not necessarily include alarm or distress.
The draft Great Repeal Bill contains a proposal to repeal the Protection from Harassment Act 1997 (presently item 82 in the section headed "Civic deregulation"). Cf. the draft anti-ostracism statute in Miscellaneous draft clauses.
- HC Deb, 10 December 1996, vol 287, col 144w Digitised copy
- Howlett v Holding  EWHC 41 at para 33, (2006) The Times, 8 Feb, QB
- Cf. Lanphier v Phipos (1838) 8 C & P 475 where Tindal CJ said "Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill".
- The passage in question is at HC Deb 17 December 1996 vol 287 col 784
- Moreover the Act of 1997 is as a whole drafted in such a way that it has the potential to create a situation where ordinary people have no freedom whatsoever to do anything other than what public officials such as judges, crown prosecutors and police officers arbitrarily demand, or, to put another way, what those officials desire. And such officials might not be reasonable people. They might, for example, be sadists who are just looking for an excuse to torment or physically attack someone. ("Law enforcement" is an activity likely to attract this kind of individual). Alternatively, such officials might hold bizarre or reprehensible opinions as to the way in which people should behave.
- HC Deb 17 December 1996 vol 287 col 784