Harrassment PDF

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Summary

the delicts surrounding harrassemnt...

Description

Harassment Harassment is a creation of statute: the Protection from harassment act 1997 

Designed to combat stalking but has been expanded to cover a range of harassing conduct

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Statute applies to England and wales as well as Scotland, sections 8-11 of the Scottish provisions are similar to English but have some important differences

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Scottish parliament has amended the 1997 act to provide for a relaxation of some of its requirements in situations of domestic abuse (don’t go into detail so not examinable)

TIP: There is a large body of case law applying and interpreting statutory provisions (and English equivalents). However, you must always begin with the provisions of the 1997 Act, as this delict would not exist without them!

5 Stages 1. Has D embarked upon a “course of conduct”? 2. Did that course of conduct harass, or cause “alarm and distress” to, P? 3. Did D intend to harass P, or was D’s conduct objectively harassing? 4. Does D have a valid defence? 5. What remedy should P claim?

Note: these questions provide a structure for explaining the delict and also for analysing a problem of harassment in an exam question

Course of conduct S8(3): defines “a course of conduct must involve conduct on at least two occasions” Therefore 1 occurrence is not enough and there must be repetition of the harassing conduct before a claim can be brought under the Protection from Harassment Act 1997

if there is one act that meets the standard of harassment, other acts, although related to the harassing act, fall below the standard of harassment themselves then that does not suffice for a course of harassing conduct- decision met Sunderland City Council v Conn [2008] IRLR 324

there is no set time limit for which acts may fall within or outside a course of conduct, especially is the later even was of similar nature or occurred in similar circumstances as the previous event Marinello v Edinburgh City Council 2011 SC 736

e.g. of acts being too different in nature to be in the same course- Levi v Bates [2016] QB 91 e.g. Siddiqi v Aidiniantz [2019] EWHC 1321 (QB)

once a course of conduct is established, we must see if it amounted to harassment of the pursuer. It must have a subjective effect that goes above mere annoyance, e.g. alarm

Effect S8(3): “‘harassment’ of a person includes causing them alarm or distress” It is often easy to see what the defender’s intention was with the evidence presented, however this is not always the case. It may be difficult to prove that the defender intended to harass the pursuer. So long as the pursuer can establish that the reasonable person would consider the defenders conduct to amount to harassment then this stage will be satisfied.

Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224

Lord Nicholls ([30]): “irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable… the gravity of the misconduct must be of an order which would sustain criminal liability.” Note: the idea is that harassment is conduct that is oppressive and unacceptable Baroness Hale ([66]): the court must draw the line between “the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”. (Approved in Scotland by Dickie v Flexcon Glenrothes 2009 GWD 35-602) Note: if the pursuer has in some sense welcomed or invited the harassment, they cannot argue that they have been harassed subjectively or objectively. E.g. Welcome” harassment? Brayshaw v Apsley Surgery [2018] EWHC 3286 (QB

Mental element S8(1): “a person must not pursue a course of conduct which amounts to harassment of another and - is intended to amount to harassment of that person; or - occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person” This contains a two-prong mental test: 

P must either show that D intended to harass him (i.e. a subjective component), or;

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If P cannot do that, P must show that D’s conduct is objectively harassing, i.e. that a reasonable observer would consider it to be harassment.

Does the pursuer have to demonstrate that they were targeted by the defender? If the defender meant to harass a third party but in turn harassed the pursuer, does the untargeted pursuer have a claim? E.g. Levi v Bates [2016] QB 91 There is no mandate in the statutory wording for the requirement that the claimant be the target of the defendants conduct, so long as the conduct was targeted at someone and it was foreseeable that harassing that person could also directly harm the claimant. The claimant could also sue the defendant for that course of conduct even If they had not been targeted.

Case examples Suttle v Walker [2019] EWHC 396 (QB) Case showed that starting an online hate campaign against a person (even anonymously) by posting unfounded allegations amounts to harassment. [39] “This case perhaps serves as a valuable example to those who think that they can wage campaigns of harassment against a person online with impunity from behind the anonymity of a webpage or social media account. The Court's experience is that it is usually very easy to unmask those who are behind such anonymous accounts or blogs. When they are identified, they are liable then to be held to account for what they have posted. If what they have done breaches the criminal or civil law, the consequences of that breach can then be visited on the relevant person. Those who believe that the law is impotent when it comes to their online behaviour are mistaken. In appropriate cases, and when required to do so, the Court will not hesitate, and it will never fail, to use its powers and procedures to maintain and uphold the rule of law. In a democratic society, the rule of law must always prevail.” (Nicklin J)

Oliver v Shaikh [2019] EWHC 3389 (QB)

Human Trafficking? A v Abu [2017] EWHC 3098 (QB) Context: A had been trafficked into the UK and employed by defendants as a housekeeper, but arrangements broke down.

Conduct included: 

Removing A’s keys, leaving her without a place to stay.

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Sending a dismissal letter, ordering A out of the home and threatening to call the police.

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Throwing A’s belongings out on the street and locking her out of the house without warning

Held: harassment [116]: “I find that the terms of the letter and the requirement that the Claimant leave the family home, bearing in mind the unequal relationship between the parties and the Claimant's vulnerability as to finding alternative accommodation, amounted to harassment."

Therefore, the fact that there is an inequality between the parties, with the pursuer at the weaker end of the relationship, means that a finding of harassment may be reached easier on the facts.

The Press False articles: potentially harassing. Contacts by journalists? Not harassment: Note: Because the freedom of speech concerns, a claim in harassment rarely has succeeded against a newspaper. “To a person like C, who has not previously been much in the public eye, the nature and extent of the press response to what she had done might well be surprising and distressing. But, unless her own dramatic public act was either to be ignored by the press or reported on her own terms without any attempt at investigation or comment, how was this level and nature of contact to be avoided? To any person familiar with the conduct of responsible professional journalism, there is nothing surprising, oppressive, unacceptable or exceptional about the journalists’ behaviour here” (HHJ Moloney QC, [11.5])

Neighbourhood Disputes

Mitton v Benefield [2011] EWHC 2098 (QB) 

Neighbours sued each other for harassment.

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P’s claim – that D followed him in his car and watched from his house - was rejected.

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D’s claim – that P repeatedly complained to the police about benign behaviour, racially abused D’s wife, and sent a letter around the neighbourhood alleging that D bullied his children – was upheld.

Worthington v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 

Letters sent to P alleging anti-social behaviour, use of CCTV to take images of children, and threatening possession proceedings, all without justification

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Held: harassment -

[80]: “Such proceedings, if successful, would have meant they would have to seek accommodation with a different housing association. Yet the Association issued these threats without taking the most basic steps to ensure that they had a proper foundation.”

Employment An employer may be vicariously liable for a course of conduct perpetrated by an employee… Against another employee: Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 Dickie v Flexcon Glenrothes 2009 GWD 35-602 Against a third party: Ferguson v British Gas [2010] 1 WLR 785 -

P was threatened emailed and threatened with legal action for not paying her bills despite having no contract and contacting D on multiple occasions, the court of appeal ruled that this did amount to harassment, it was a serious and persistent unwarranted threat.

Roberts v Bank of Scotland [2013] EWCA Civ 882 -

Roberts was compensated following the same reasoning of the Ferguson case, when she was phoned over 500x in 13 months due to a modest exceeding of her overdraft limit

The court if appeal said that the existence of debt does not give the debtor the right to bombard someone with endless and repeated telephone calls, especially is content of calls was intimidatory despite being in polite language. Court emphasised the content on the calls, stating that the bank could not assume a person in the claimant’s position would be unaffected because it wouldn’t have the same effect on someone else in a different position.

A company cannot claim for its own ‘harassment’: statutory provisions do not permit this -

S8(1) restricts the right not to be harassed to “every individual”

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Smithkline Beecham v Avery [2009] EWHC 1488 (QB)

But an employer may bring a representative action to protect its employees from a harassing course of conduct: -

Merlin Entertainment v Cave [2014] EWHC 3036 (QB)

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Cheshire West v Pickthall [2015] EWHC 2141 (QB)

A professional body may also take representative action to protect its members from such a course of conduct: -

Law Society v Kordowski [2011] EWHC 3185 (QB)

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Note: These cases help to assess whether there is a course of conduct which passes the harassment threshold

REMEMBER: if a course of conduct is objectively harassing then there is not need to prove subjective intent to harass the pursuer

Defences S8(4): “It shall be a defence to an action of harassment to show that the course of conduct complained of-

a) was authorised by, under or by virtue of any enactment or rule of law; b) was pursued for the purpose of preventing or detecting crime; or c) was, in the particular circumstances, reasonable”

s12 (certification by Secretary of State) a minister may certify that certain conduct does not amount to harassment S8(4)(b): preventing

or detecting crime

Hayes v Willoughby [2013] 1 WLR 935 -

D’s actions must be rationally connected to the purpose of the prevention or detection of crime.

EDO v Campaign to Smash EDO [2005] EWHC 2490 (QB) -

Alleged crime must be specific and immediate or imminent

McWilliams v Russell [2017] SC GLA 64

S8(4)(c):

reasonable

Hourani v Thomson [2017] EWHC 432 (QB) -

Freedom of speech considerations?

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It was noted that the exercise of freedom of speech should only ben found to involve unacceptable if certain stringent conditions are clearly satisfied

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No individual is entitled to impose on any other person an unlimited punishment by public humiliation (such as the defendant had done)

Khan v Khan [2018] EWHC 241 (QB) -

Pursuing a reasonable grievance?

Canada Goose v Persons Unknown [2020] 1 WLR 417 -

Freedom of peaceful protest?

Court of appeal signalled it would be difficult to show a shifting group of persons unknown rather than an identifiable group had been guilty of harassing the claimant. Also, on the facts it had not be proven that the protestors were exercising their freedom of assembly unreasonably i.e. the conduct had not crossed the boundary of harassment If a defender is unable to establish a valid defence then they will be liable for harassment

Remedies 

If successful, P can seek damages for anxiety, other non-pecuniary (non-financial) injuries, and any financial loss resulted from the harassment (s8(5)(a); s8(6)).

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P also can seek an interdict or an interim interdict* (s8(5)(b)(i)).

(useful as it allows court to put in place a provisional measure which protects the pursuer during the course of the trial*, if the pursuer can establish to the court that they have an argument that the defender has harassed them, then the court may award an ‘interim interdict’, preventing the defendant from harassing the pursuer until the trial has ended) 

The 1997 Act also provides a specific remedy in the form of the non-harassment order, (s8(5)(b)(ii)), breach of which is a criminal offence (s9(1)).

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P cannot crave both an interdict and a non-harassment order as part of the same harassment proceedings*: s8(5)(b); McCann v McGurran 2002 SLT 592.

Note: The 1997 act does not create a Scottish crime of harassment, however if the court makes a nonharassment order against the defender and the defender breaches that order, then the defender may instantly be brought to court by the prosecutor If an interdict is breached, the pursuer still must seek to enforce that breach through raising proceedings for contentive court which may ultimately result on the arrest of the defender. The nonharassment order does not require this step, in practice if the pursuer thinks the order has been breached, they contact the police who will bring he defender to court. The pursuer has no further role in ensuring the consequences of breach. Because of the consequences of a non-harassment order (defender liable to prosecution) they cannot be awarded on an interim basis, they have to be awarded after a full trial for the harassment claim where the defender is allowed to put their story forward. In practice, a pursuer will seek an interdict for the duration of the trial and then will have this converted to a non-harassment order after the trial has concluded in their favour.

An interdict and a non-harassment order can not be sought within the same proceedings, but this only extends to FINAL interdicts. (interim interdicts would cease to have effect before the nonharassment order would kick in) *

NOTE: harassment delicts are very complicated, use the 5 questions to understand and analyse this...