We are approached by people who are concerned they are being harassed by neighbours, former friends, ex-partners or acquaintances. As harassment is a criminal and civil offence, quite often clients have discussed the matter with the police first. It is common for the police to advise a client to speak to a solicitor to consider obtaining an injunction against the offending party. This is on the basis that if the injunction obtained is later breached, the police can intervene. Unfortunately, obtaining an injunction for harassment can be a complicated process.
What is harassment?
The Protection from Harassment Act 1997 defines harassment. Essentially, the definition is ‘pursuing a course of conduct which causes a person alarm or distress’. It must involve more than one incident of harassment and the test as to whether the conduct constitutes harassment is an objective one. In other words, if another person considered that conduct, they would consider it to be conduct which amounts to harassment. Harassment includes speech.
Many clients will consider that there is an immediacy and a need to obtain an injunction without delay. To do so, you will need to consider the following factors:
- has there been a threat of violence?
- Is there an immediate need for an injunction? I.e. has there been a threat, or a potential meeting of the parties?
- Has there been an escalation in the conduct by the offending party? For example, more aggressive or obscene conduct that is consistent and persistent.
The conduct has to be deemed oppressive and unacceptable.
Malicious Communications Act 1988
The use of social media to bully and harass people is widely reported to be on the increase. If this is the case, the offending party may have breached other Acts of Parliament. One particular Act is the Malicious Communications Act 1988.
The Act prevents the sending of communications (including online messages or letters) that convey a threat, a grossly offensive or indecent message, or false information. It applies if the sender’s intention is to cause distress or anxiety to the reader or recipient. The offending material does not need to be directly addressed to the recipient; it can be a post about that person but made to the general public. The offence covers communications that are offensive, obscene, menacing or false.
Seeking an injunction
In this context, an injunction is an order from a court for the offending party to stop the conduct complained about. We have looked at injunctions in general in a previous blog post.
It is important to bear in mind that injunctions should be a ‘last resort’ remedy. The courts prefer the parties to first seek to resolve the matter between themselves. Therefore, the ordinary course of events is to first write to the other party requesting that they cease and desist from the harassment. One would usually also seek undertakings that they will refrain from similar conduct in future. If they don’t agree to give undertakings, explain that you will seek an order for an injunction. The purpose of this first letter is twofold. Firstly, to try to stop the offending party from its conduct; and secondly, to demonstrate to a court that you have taken all reasonable steps prior to making an application for an injunction, and it is now necessary for the Court to intervene.
If it appears that from the response to the first letter that the offending party either will not stop its conduct; or intends to ignore the letter and continue with its actions, then it may then be the appropriate stage at which to seek an injunction. You may seek an injunction on one of two bases: with notice to the other party or without. It is advisable to provide notice, if at all possible.
Tel: 0113 297 1873
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