In view of the reported upcoming campaign to seek out inactives, I'm doing some research on harassment issues. Before getting into it, here's a disclaimer:
I am not a lawyer. I have no legal training. Everything I post is based on my own reading and viewpoints only, and may be completely wrong. If, after reading this, you are thinking of pursuing matters further, get competent legal advice!
One of the more interesting things I've read about is the Protection From Harassment Act., which is the main UK legislation dealing with harassment. While primarily created to address the issue of stalking, the High Court has commented that:
'Whatever may have been the purpose behind the Act, its words are clear, and it can cover harassment of any sort'
The Act has force from 16 th June 1997, and can provide a basis for a criminal prosecution, a claim for damages, or a civil injunction. Injunctions made under the Act are unique because breach of them is a criminal offence punishable with up to 5 years imprisonment. Courts may impose restraining orders on those convicted of criminal harassment, and breaching a restraining order is a further criminal offence punishable by up to 5 years imprisonment.
Summary of the Act
Sections 1 and 2 of the Act create the offence of harassment as follows:
s1(1) A person must not pursue a course of conduct
(a) which amounts to harassment of another and
(b) which he knows or ought to know amounts to harassment of the other'
s2(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence'
(Under s7(4) 'conduct' includes speech.)
Elements of the Offence
Blackstone's Guide to the Act comments as follows:
To obtain a conviction for criminal harassment the prosecution will need to prove beyond reasonable doubt the three specific elements of harassment laid out in s1(1). The accused must pursue a course of conduct, the course of conduct must amount to harassment of another person and the accused must know or ought to know that the course of conduct amounted to harassment.
Note that in a civil tort there is a lighter standard of proof, in that civil cases require only the balance of probabilities, while criminal cases require beyond reasonable doubt. Harassment cases may be directed to either criminal or civil courts. Section 3(2) of the Act allows courts to award damages for:
(amongst other things) any anxiety caused by the harassment and any financial loss resulting from the harassment'.
A "Course of conduct" is taken to mean "conduct on at least two occasions". Note though that the incidents do not have to be of the same type, nor is there a set time limit in which the incidents must occur.
What is harassment?
Blackstone's comments:
Under s7(2) references to harassing a person include alarming the person or causing the person distress. Harassment alarm and distress are not defined in the Act and so will need to be given their ordinary dictionary meanings but they are words used in ss4A and 5 Public Order Act 1986 and therefore cases involving those offences will be relevant in interpreting the Act.
Interestingly, the Public Order Act required "harassment alarm or distress to be caused by the use of threatening, abusive or insulting words or behaviour or disorderly behaviour or by the display of any writing sign or other visible representation which is threatening abusive or insulting." BUT, under the Protection From Harassment Act there is no such requirement, because it was designed primarily with stalking in mind, which often does not involve overtly abusive or threatening behaviour.
The Courts have not given a precise definition of what exactly constitutes harassment, and this means the Act is potentially extremely wide-ranging in its possible applications.
Defences to the charge
Under section 1(3) it is a defence to a charge of criminal harassment for the accused to show:
- a) that it was pursued for the purpose of preventing or detecting crime
- b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
- c) that in the particular circumstances the pursuit of the course of conduct was reasonable
What is NOT a defence is being engaged in a lawful occupation such as a journalist, a private detective or, incidentally, a lawyer cross-examining a witness (or maybe an elder pursuing an inactive?)
What about the requirement that the accused knows or ought to know that the course of action amounts to harassment? Section 1(2) says "for the purposes of this section the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other".
Stalking
While the Act did not define stalking, a 1996 Private Members Bill did, as follows:
engaging in a course of conduct whereby a person
(a) follows, loiters near, watches or approaches another person
(b) telephones (which for the avoidance of doubt shall include telephoning a person but remaining silent during the call), contacts by other electronic means or otherwise contacts another person
(c) loiters near, watches, approaches or enters a place where another person lives works or repeatedly visits
(d) interferes with property which does not belong to him and is in the possession of another person
(e) leaves offensive, unwarranted or unsolicited material at a place where another person lives works or regularly visits
(f) gives offensive unwarranted or unsolicited material to another person
In addition to this, section 264 of the Canadian Criminal Code defines criminal harassment as:
(a) repeatedly following from place to place the other person or anyone known to them
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them
(c) besetting or watching the dwelling house or place where the other person or anyone known to them resides works carries on business or happens to be or
(d) engaging in threatening conduct directed at the other person or any member of their family
Blackstone's comments:
It is almost certain that any of the above types of behaviour would be regarded as criminal harassment under the Act and certainly it was that type of persistent stalking behaviour that Parliament had in mind when the Act was passed.
Harassment of a person in their home
An alternative to the Protection from Harassment Act is the Criminal Justice and Police Act 2001, section 42, excerpted as follows:
42.-(1) Subject to the following provisions of this section, a constable who is at the scene may give a direction under this section to any person if-
(a) that person is present outside or in the vicinity of any premises that are used by any individual ("the resident") as his dwelling;
(b) that constable believes, on reasonable grounds, that that person is present there for the purpose (by his presence or otherwise) of representing to the resident or another individual (whether or not one who uses the premises as his dwelling), or of persuading the resident or such another individual-
(i) that he should not do something that he is entitled or required to do; or
(ii) that he should do something that he is not under any obligation to do;
and
(c) that constable also believes, on reasonable grounds, that the presence of that person (either alone or together with that of any other persons who are also present)-
(i) amounts to, or is likely to result in, the harassment of the resident; or
(ii) is likely to cause alarm or distress to the resident.
So, does it apply?
Firstly, it has to be said that any use of legal means to prevent harassment by elders will result in them instantly "disassociating" you. Therefore possible legal action should be regarded as a way to get some justice/satisfaction only if you dont mind being DA'd or know it to be an inevitable outcome.
Beyond that are uncharted waters. Does an elder(s) repeatedly telephoning or calling on you to try and get you to a meeting with them constitute harassment or even stalking?
Consider the three things that it is necessary to show:
1) A course of conduct. Not difficult. Just keep a record of phone calls (preferably copies of itemised bills or printouts from the phone company), calls they make at your home (neighbours confirmations could be useful) or work (ditto workmates).
2) The Course of Conduct must amount to harassment. The crux. Remember that harassment is regarded as "alarming or causing distress". Will forced meetings with elders cause you distress, especially if as a result of the questioning you are subjected to forced shunning by your family? If you are a woman, will having to go into an enclosed room with three men to be questioned intimately give you alarm? I think a good case could be made that the answers to those questions are "yes!" Also keep in mind the most interesting definitions of stalking, and see how many of those methods elders employ in telling you that you "should do something that you are not under any obligation to do."
3) The accused must know or ought to know that the course of conduct amounted to harassment. Note that the very old English law concept of a "reasonable person" is used here. That means that if your average reasonable John Bull on the street would know that the course of action was harassment, so should a JW elder. Would Mr. John Bull reach that conclusion? Depends on the individual case of course, but I'm smiling at the idea of an elders conduct being measured according to the standard of a reasonable worldly person, and being found wanting!
Further information
Most of the material for this post came from my reading of the following excellent website:
http://www.harassment-law.co.uk/msindex.htm
The site is by a Barrister specializing in this area of law.
Expatbrit
Edited by - expatbrit on 16 December 2002 18:44:50
Edited by - expatbrit on 16 December 2002 18:53:30