Harassment & Stalking

If you have been charged with a harassment or stalking offence, this guide is designed to help you understand what the police must prove, the defences available and the likely sentences involved.

In 1997 the Protection of Harassment Act was introduced to specifically deal with the offence of stalking.  Since then, various legislation has been passed to deal with other “harassment type” offences including disclosing private sexual images (revenge porn), and controlling or coercive behaviour.  The charges have different sentencing guidelines and defences available.

The most recent legislative changes have doubled the maximum sentences for stalking and harassment from five years to 10 and from seven to 14 years for the aggravated form of these offences – that is, when they are racially or religiously aggravated.

The Magistrates’ Court Sentence Guidelines can be found here for these offences:  https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/harassment-racially-or-religiously-aggravated-harrassment/.

We will go through these now in order from least serious to most serious.  For all of these offences you are likely to receive a Restraining Order following conviction.

Section 2 – Harassment

What must the police prove?

• that there was a course of conduct; 
• which amounts to harassment of another; and 
• which the defendant knows, or ought to know amounts to harassment of another.

Harassment is usually defined as ‘causing alarm or distress.’

What defences are available?

A defendant has a defence if they instruct that: 

• that the course of conduct was pursued for the purpose of preventing or detecting crime; 

• 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 
• that in the particular circumstances the pursuit of the course of conduct was reasonable.

The third defence of “reasonableness” is the most commonly known defence.  Examples of this are where the defendant maintains that the contact is for the purposes of obtaining contact with shared children, or where the victim is exhibiting harassing behaviour and the defendant is responding to this.  The behaviour of the defendant will be examined by the court and the test is whether a “reasonable person” in possession of the same information would think the course of conduct amounted to harassment of the other.  You should listen carefully to your solicitor’s advice in this regard as to whether, in their experience, your behaviour would be considered to be reasonable by the Court.

What is the maximum sentence?

This is a summary only offence which means it can be heard only in the magistrates’ court.   The maximum sentence is six months’ imprisonment and/or a level 5 fine. 

Section 2A – Stalking

What must the police prove?

• that there was a course of conduct
• which amounts to harassment
• the course of conduct amounts to stalking.

Whilst there is no strict legal definition of ‘stalking’, section 2A (3) of the PHA 1997 sets out examples of behaviour which might amount to stalking, such as:

• following a person
• contacting, or attempting to contact, a person by any means
• publishing any statement or other material (i) relating or purporting to relate to a person, or (ii) purporting to originate from a person
• monitoring the use by a person of the internet, email or any other form of electronic communication
• loitering in any place (whether public or private)
• interfering with any property in the possession of a person
• watching or spying on a person 

What defences are available?

The defences available are the same as per the harassment defences above.

What is the maximum sentence?

This is a summary only offence, carrying a maximum of six months’ imprisonment and /or a level 5 fine.

Section 4A (1)(b)(i) – putting people in fear of violence

What must the police prove?

• that there was a course of conduct;
• which causes another to fear that violence will be used against him; and
• which the defendant knows or ought to know will cause another to fear that violence will be used against him; and
• the defendant ought to know that his course of conduct will cause another to fear that violence will be used against them if a reasonable person in possession of the same information would think that the course of conduct would cause the other so to fear on that occasion.

What defences are available?

• that the course of conduct was pursued for the purpose of preventing or detecting crime;
• the course of conduct 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
• pursuit of the course of conduct was reasonable for the protection of him or herself or another or for the protection of her, his or another’s property.

If you are found not guilty of the offence of Section 4A, the jury are entitled to still find you guilty of section 2 harassment in the alternative.

What is the maximum sentence?

This is an either way offence, which means that it can be heard in either the magistrates’ court or the Crown Court, carrying a maximum of ten years’ imprisonment and/or a fine if heard in the Crown Court.

Section 4A(1)(b)(ii) – Stalking involving fear of violence or serious alarm or distress

What must the police prove?

• that there was a course of conduct;
• which amounts to stalking (see above); and
• which causes another to fear, on at least two occasions, that violence will be used against him or her; or causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities

The court will consider whether a reasonable person ought to know that their behaviour would amount to stalking and fear of violence.

There are two types of these offences.

First, a course of conduct that amounts to stalking and causes the victim to fear, on at least two occasions, that violence will be used against them.

Second, a course of conduct which causes “serious alarm or distress” which has a substantial adverse effect on the day-to-day activities of the victim.  This part specifically deals with the severe impact that stalking has on victims.  Examples of substantial adverse effects on the victim include: 

• the victim changing their routes to work, work patterns, or employment

• the victim arranging for friends or family to pick up children from school  (to avoid contact with the stalker)
• the victim putting in place additional security measures in their home
• the victim moving home
• physical or mental ill-health
• the victim’s deterioration in performance at work due to stress

What are the defences available?

• that the course of conduct was pursued for the purpose of preventing or detecting crime;
• the course of conduct 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
• pursuit of the course of conduct was reasonable for the protection of him or herself or another or for the protection of her, his or another’s property.

What is the maximum sentence?

This is an either way offence, which means that it can be heard in either the magistrates’ court or the Crown Court, carrying a maximum of ten years’ imprisonment and/or a fine if heard in the Crown Court.

Revenge porn

In 2015 a new offence of disclosing private sexual images, commonly known as revenge porn, was introduced.  The guidelines are more serious for this offence as it is considered that this type of offending causes serious distress to the victim and can be particularly unpleasant and intrusive.

Some examples of this, designed to maximise distress and humiliation, involve significant planning, such as setting up fake social media profiles to post the images, and inviting comment and contact, which could result in abuse and sexualised contact from strangers.  The sentence guidelines particularly punish further where there are repeated efforts to keep images available for viewing, for examples repeatedly re-posting images when websites have taken them down.

Please see the Sentencing Guidelines for details of likely sentences for this offence.

Controlling or co-ercive behaviour

Also in 2015, the offence of controlling or coercive behaviour in an intimate or family relationship also came into force, aiming to give more protection to victims experiencing repeated or continuous abuse. Common examples of this include preventing the victim from having friendships or taking part in activities, denying them access to money and controlling aspects of everyday life such as what they can wear, what they can eat and where they can go.

Higher sentences are given to those who have tried to humiliate and degrade the victim, persistent action over a prolonged period and significant psychological harm.  Another particularly aggravating feature is where the victim is left in debt, destitute or homeless due to exploitation of finances. 

Please see the Sentencing Guidelines above for details of likely sentences for this offence.

If you are charged with any of the above offences it is important that you get in touch with us straightaway.  There are a number of alternatives to the most serious offences and having a solicitor to represent you may make a significant difference to your sentence.