Protection from Harassment Act 1997

This Guidance was last updated on 17^th December 2007

The Law
- Protection from Harassment Act 1997
Elements of Offences
Charging Practice
Procedure - Pre-Trial
Procedure - Post-Trial
Annex A - Home Office Circular 34/1997 Protection from Harassment Act 1997
Annex B - Home Office Circular 34/2005 Sections 125, 126 and 127 of the Serious Organised Crime and Police Act 2005

The Law

Protection from Harassment Act 1997

Main Features of the Act

<Refer also to Home Office Circular 34/1997 and Home Office Circular 34/2005 below in this section>

The Protection from Harassment Act 1997 introduces four new criminal offences. <Archbold: 19-277a>

Harassment (section 2): summary only, six months' imprisonment and/or a level 5 fine;
fear of violence (section 4); either way, five years' imprisonment and/or a fine on indictment; as above summarily;
breach of civil injunction section 3(6); either way, same penalty as s.4 offence;
breach of restraining order section 5(5); either way, same penalty as s.4;
a new civil tort of harassment is created by section 3.

All of the offences are arrestable; s.2 under s24(2) of PACE, which is amended by s.2(3) of the Act; the remaining offences by virtue of their five year maximum penalty.

Under section 5, the Crown Court and the magistrates' court can make a restraining order on conviction, prohibiting the defendant from doing anything described in the order, for the purpose of protecting the victim from further harassment or fear of violence. This is one of the major benefits of the Act; <see Restraining Orders, below in this section>

Elements of Offences:

Offence of Harassment - Section 2

<Archbold: 19-277b>

The elements of the section 2 offence are:

Section 1(1)

a course of conduct;
which amounts to harassment of another;
which the defendant knows, or ought to know amounts to harassment of another.

or Section 1(1A) [as inserted by SOCPA 2005, s. 125(2)]

a course of conduct;
which involves harassment of two or more persons;
which the defendant knows or ought to know involves harassment of those persons;
by which he intends to persuade any person (whether or not one of those mentioned above) -
i) not to do something that he is entitled or required to do, or
ii) to do something that he is not under any obligation to do.

The defendant ought to know if his course of conduct amounts to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

Section 7 <Archbold: 19-277g> defines a course of conduct as involving conduct on at least two occasions.

Harassment is not defined, but includes causing alarm or distress, and conduct is defined as including speech.

Section 7(3)A provides that:

Conduct by one person shall also be taken to be conduct by another if that other has aided, abetted, counselled or procured the conduct.
The knowledge and purpose of the person who aids, abets, counsels or procures conduct are what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring and not when the conduct occurs.

The amendment at (a) above makes it clear that a campaign of collective harassment by 2 or more people can amount to a "course of conduct". It also confirms that one person can pursue a course of conduct by committing one act personally and arranging for another person to commit another act.

The amendment at (b) above ensures that the knowledge and purpose of the person who aids, abets, counsels or procures conduct is judged at the time that the conduct was planned and not when it is carried out. This may assist a defendant to offer a defence of reasonableness if, at the time that he commissioned a subsequent act, he was unaware that the first act had caused distress to the complainant. Such a defence would not succeed if the defendant ought to have known that the act would cause distress at the time that the subsequent act was commissioned.

This section extends the definition of "conduct" and "course of conduct" for the purposes of sections 1 to 5 of the Act. It was inserted by section 44 Criminal Justice Act 2001 and came into force on 1 August 2001.

Putting People in Fear of Violence: section 4

<Archbold: 19-277e>

The elements of the section 4 offence are:

a course of conduct
which causes another to fear that violence will be used against him
which the defendant knows or ought to know will cause another to fear that violence will be used against him.

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.

Racial and Religious Aggravation

<Archbold: 19-277j>

Section 32 (1)(a) Crime and Disorder Act 1998 creates a racially or religiously aggravated form of section 2 Protection from Harassment Act 1997 (offence of harassment).

Section 32 (1)(b) Crime and Disorder Act 1998 creates a racially or religiously aggravated form of section 4 Protection from Harassment Act 1997 (putting people in fear of violence).

<refer to Prosecuting Cases of Racist and Religious Crime, elsewhere in this Guidance>

Breach of Order

Sections 3(6) and 5(5) make it an offence for the defendant to do anything which he is prohibited from doing under an injunction issued under s.3, or a restraining order issued under s.5.

It should be noted that whereas the s.2 and 4 offences require a course of conduct, breaches of court orders require only a single act.

Defence - Offence of Harassment - section 2

<Archbold: 19-277b>

Three defences are available under s.2:

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.

Defence - Putting People in Fear of Violence - section 4

<Archbold: 19-277e>

Under s.4 the following statutory defences are created by sub-section 3. It is for the defendant to show that:

his course of conduct was pursued for the purpose of preventing or detecting crime;
his 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
the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property.

Defence to Breach of Criminal or Civil Order

The sole defence to a breach of a criminal or a civil order is that the defendant had a reasonable excuse. All of the defences are for the defendant to show, and therefore it follows that the standard of proof is on the balance of probabilities.

Examples of Use of Defences

The first defence <see Defence to Harassment, above in this section> to sections 2 and 4 most obviously applies to the police, and any other investigative agencies, such as the Post Office or Customs and Excise. It is possible that it could also be raised by individuals, such as investigative journalists or Neighbourhood Watch members, who claim that their activities are for the purpose of detecting or preventing crime.

The second defence <see Defences, above in this section> to sections 2 and 4 most obviously applies to companies acting within their legal entitlement, for example a Building Society manager warning in writing of repossession proceedings, because of default in mortgage payments, followed by repossession taking palace.

The third defence <see Defences, above in this section> to section 2 is that the defendant was acting reasonably in the particular circumstances. This is a wide defence, which covers the pursuit of a legitimate trade or profession. Ultimately, the decision as to what amounts to reasonable behaviour will rest with the courts.

Secretary of State's Certificate - section 12

<Archbold: 19-277h>

In order to protect the activities of the security forces, and those investigating serious crime, under s.12, the Secretary of State may issue a certificate to the effect that the behaviour complained of was done in relation to:

national security
the economic well-being of the United Kingdom, or
the prevention or detection of serious crime.

Such a certificate is conclusive evidence that the Act does not apply to the conduct of a person on a specified occasion. This will prevent surveillance targets from taking out private prosecutions in order to expose those keeping surveillance, should such prosecutions get as far as trial without being taken over and discontinued by the DPP. It is hard to envisage circumstances where a prosecution resulting from a police charge will result in the need for such a certificate.

As certificates are made by the Secretary of State, they can be expected to relate only to high level operations concerning terrorism or very serious crime. It is not thought likely that such certificates will be issued in relation to the activities of specialist police units.

Timing

The Act is not retrospective, so that charges must reflect a course of conduct which started on or after commencement, i.e. 16 June 1997. A course of conduct is defined as involving conduct on at least two occasions. The act does not specify what period of time should elapse between occasions. Arguably, therefore, so long as the behaviour complained of ceased, even for a short period of time, and then resumed either in the same or a different form, this can form a course of conduct.

Acts might be some distance apart, eg yearly on the victim's birthday, and yet still constitute a course of conduct. Each case will fall to be determined on its own facts.

As the s.2 offence is summary only, it is subject to the limitation of time imposed by s.127 of the Magistrates' Courts Act 1980. This requires informations or complaints to be heard within 6 months from the time when the offence was committed, or the mater of complaint arose. Arguably, as the offence under s.2 is a course of conduct, the offence is completed with the final act complained of, and the six months' limitation should run from this date. Prosecutors should be ready to argue this point, as it is anticipated that some magistrates may prefer a stricter interpretation, that all of the acts complained of should be within 6 months of charge.

Section 1(1A) was inserted by section 125(2) Serious Organised Crime and Police Act 2005, and came into force on 1 July 2005.

Charging Practice

Specimen Standard Offence Wordings

<refer to Case Management System Indictment Builder>

To show a course of conduct, conduct must be proved on at least two occasions. Prosecutors should seek to ensure that charges reflect the range and scale of the defendant's behaviour, and that there is sufficient evident to prove each incident alleged, in accordance with the Code.

It may be appropriate to charge other offences in conjunction with an offence under his Act, in the way that an assault charge might be charged in addition to an affray. Where other chares are brought, prosecutors should be prepared to justify this, and to resist any defence applications that the prosecution should proceed either under this Act, or under other legislation, but not under both.

Discretion

The Act is widely drafted, and could incorporate many minor forms of behaviour. The Home Office circular <refer to Home Office Circular 34 of 1997, below in this section> makes it clears at paragraph 6 that the Act is not intended to supplant existing powers to deal with incidents that do not reach the threshold of harassment. Care will have to be taken with the exercise both of the police discretion to charge, and of the prosecution's discretion to prosecute under the Code.

Acceptability of Pleas

Care should be taken in accepting pleas, to ensure that the protection given under the Act from a restriction order is not lost.

If an early incident is charged under other legislation (eg breach of the peace/s.5 Public Order Act 1986), and a subsequent incident establishes a course of conduct, it may be advisable to withdraw the earlier charge and to substitute a charge under this Act, covering both incidents. Difficulties will arise if an earlier incident has resulted in a conviction. It is unlikely that the courts will allow incidents that have already been dealt with to form part of a subsequent offence, given the doctrine of autre fois acquit and convict.

Similarly, where a defendant has been cautioned, care should be taken before going behind the caution and charging that incident as part of a course of conduct, as this may constitute an abuse of process.

Procedure - Pre-Trial

Victims should be advised by the police to diarise events, retain physical evidence such as letters, etc., and to take photographs of any visible evidence. These can then be exhibited, subject to admissibility. Victims should also be advised to keep copies of any injunctions or restraining orders, and to produce their copy to the police if the order is breached.

If an officer attends an incident, warns an offender of the effect of his actions and keeps a note of this warning, this will be of assistance in showing that the defendant knew or ought to have known the effect his behaviour was having on the victim, should his behaviour continue.

It is possible for behaviour directed at one person to harass another, so long as it can be proved that the defendant knew or ought to have known that his behaviour was causing harassment to that other. A stalker may seek to harass a victim through their friends or family.

Procedure - Post-Trial

Restraining Orders

<Archbold: 19-277f>

Under s.5, both the Magistrates' and the Crown Court can make a restraining order on conviction, in order to protect the victim, or any other person mentioned in the order from further conduct which amounts either to harassment or causing feast of violence.

This is one of the major benefits of the Act, which is discussed at some length in the Home Office circular at paragraph 19. The following points are made in that paragraph:

although the court may make an order of its own volition, it is expected that the prosecution will ask for an order, and that the contents of the order would be discussed in any PSR's;
the contents of the order are at the court's discretion, provided that the court is satisfied that the conditions are necessary to protect the victim or other person named in the order;
the order gives protection to the victim, and is not a punishment. The duration of the order should reflect the need for future protection and not the seriousness of the previous conduct;
indefinite orders may be appropriate in many cases, with discharge or variation being considered in due course;
applications to vary should not be granted without good cause, and courts should ensure that all interested parties have been able to make representations;
it would be helpful if courts and prosecutors arranged local procedures to ensure that there are prompts to bring the court's attention to their power to make a restraining order, and that if the court decides not to make an order, the reasons for that decision are given in open court;
CJS agencies must work together to exchange information about restraining orders. Orders must be copied to the police, to victims, and to the Prison Service where appropriate, and release dates should be notified to the prosecution and the victim;
Orders should contain a written statement of the consequences of breach.

Variation/Discharge of Restraining Orders

Under s5(4), the prosecutor, the defendant, or any other party mentioned in the order may apply for variation or discharge of Restraining Orders. Variation is not defined, but paragraph 18 of the Home Office circular makes it clear that variation can include extending the duration of the order.

Prosecutors clearly have a post conviction role in assisting victims where variation is sought. It will therefore be necessary to retain papers where restraining orders are made, until the order ends or is discharged. Local liaison will be needed with the police to ensure that systems are in place to arrange for variation applications to be made.

Where the police make recommendations as to the need for, and terms of a restraining order, these will be made on form MG(c). Prosecutors may wish to discuss the terms of orders in advance with the defence, so that arrangement can be reached wherever possible. Indefinite orders will ensure that victims are adequately protected for the foreseeable future. Some courts may be reluctant to make indefinite orders. In such cases, the prosecution should consider making an application for variation, towards the end of an order, to extend it. Case papers should be retained until the expiry of the order.

Where courts express a reluctance to make an order, prosecutors should point out that orders can be varied or discharged upon application, but can only be made upon conviction. If an order is not made, the court should be asked to state their reasons, in accordance with paragraph 19(v) of the Home Office circular.

Terms of the Order

It is important that the terms of orders are clear, but not so prescriptive was to allow alternative forms of harassment. Geographical limitations, such as staying 300 yards away from the victim should be suggested with care. Difficulties could arise in proving distances should there be a breach, and harassment may be possible from 301 yards. Terms of the order can arguably reflect pre-commencement behaviour, as they are not a punishment, but a protection against future offending.

It should be noted that restraining orders should be considered where the defendant receives a custodial penalty, as it is possible to harass or cause fear of violence from prison through the use of telephones, letters or third parties. The prison can be informed of the existence of an order by the police, using form POL 1.

A defendant may seek to make repeated applications for variation, to harass the victim. In such cases, the prosecutor should remind the court of its powers to control abuse of its process. Victims should be informed of applications to vary, and asked to express their views and to attend if necessary.

Relationship between Civil and Criminal Provisions

<Archbold2002:19-277d>

S.3 provides victims with civil redress in the county court. A victim can obtain an injunction where harassment is apprehended.

If a victim initiates proceedings in the civil court, and criminal proceedings result from the same course of conduct alleged, then it is usual for criminal proceedings to take priority.

Under s3(6) breaches will be dealt with in the criminal courts unless the breach is not reported to the police, or the evidence is insufficient to satisfy the criminal burden of proof.

Rules of court, and forms, will be issued to govern procedures under s.3 and s.5. Further guidance will be issued once these are agreed. In the interim, prosecutors are advised to refer courts to the contents of the Home Office circular for guidance, particularly in relation to restraining orders (to be confirmed).

Annex A - Home Office Circular 34/1997 Protection from Harassment Act 1997

HOME OFFICE
Sentencing and Offences Unit
50 Queen Anne's Gate,
London,
SW1H 9AT

Lord Chief Justice
Crown Court Judges
Court of Appeal Judges
Circuit Administrators
Stipendiary Magistrates
The Chief Clerks to the Judges
The Chief Crown Prosecutors
The Chief Officers of Police (England and Wales)
The Chief Constable (Scotland)
The Chief Constable (Royal Ulster Constabulary)
Association of Chief Officers of Probation
Clerks to the Justices Magistrates Court (Chairman of the Bench)
The Magistrates' Association
The Association of Magisterial Officers
Magistrates' Court Division, Lord Chancellor's Department
Directors of Social Services
Judicial Studies Board

Date: 16 June 1997

Dear Sir/Madam

Home Office Circular 34/1997
Protection From Harassment Act 1997

Sections 1, 2, 4, 5, and 7 to 12 of this Act will be brought into force on 16 June 1997 by virtue of the Protection from Harassment Act 1997 (Commencement) (No.l) Order 1997. Sections 8-11 are applicable to Scotland and are not discussed in this Circular. Sections 3(1), 3(2) and 6 of this Act will be brought into force on 16 June 1997 by the Lord Chancellor by virtue of the Protection from Harassment Act 1997 Commencement) (No.2) Order 1997 (see paragraphs 11-15 below for a brief description). The purpose of this Circular is to provide guidance to those working in the criminal justice system on the provisions being brought into force by the No-1 order. This Circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

1. Section 1 of the Act prohibits a person from pursuing a course of conduct which amounts to harassment. In order to commit an offence under section 2 of the Act, it is necessary to show that:

i. harassment was caused. Harassment is not defined in the Act, except that it includes causing the person alarm or distress. Harassment is, however, a concept which the courts are used to interpreting through other legislation (e.g. the Public Order Act 1986);

ii. the harassment was caused by a course of conduct. This is defined in the Act as conduct on more than one occasion; though there is no requirement that the conduct is the same on each occasion. The Act is not retrospective, and all incidents which form a course of conduct will have to post date implementation. Conduct can include speech and;

iii. the alleged offender knows, or ought to know, that the course of conduct amounts to harassment of the other.

2. A course of conduct which causes harassment is not prohibited if the person who pursued it shows:

i. that it was pursued for the purpose of preventing or detecting crime. This defence is most obviously available to the police, or other statutory investigating agencies;

ii. 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

iii. that in the particular circumstances it was reasonable. Many, otherwise legitimate, activities may cause a person to feel harassed, but should not be prohibited by the provisions of this Act. For example investigative journalists, private investigators or debt collectors are legitimate professionals who should be free to carry out their activities. But they do not have total immunity under the provisions of this Act. They would need to show that their actions were - in all the circumstances - reasonable. Non trade activities would also gain protection from this defence.

3. Section 2 of the Act makes it an offence for a person to pursue a course of conduct in breach of section 1. A person found guilty of this offence is liable on summary conviction to a maximum of six months' imprisonment, or a level 5 fine, or to both. The offence is not triable on indictment.

4. The offence of causing harassment is arrestable under the provisions of section 24(2) of the Police and Criminal Evidence Act 1984 and attracts the powers associated with such offences.

5. Although the offence of harassment in the Act is widely drawn, it does not supplant existing powers to deal with specific situations like neighbour disputes, which do not of themselves reach the threshold of harassment. However, where harassment is caused in these situations, and the elements at paragraph 2 ii and iii are present, then the offence could apply.

6. Section 4 creates a new criminal offence of causing fear of violence. This offence will be committed only if the following elements are present:

i. fear of violence was caused (on at least two occasions);

ii. the fear of violence was caused by a course of conduct; and

iii. the alleged offender knows, or ought to know, that the course of conduct will cause the other to fear violence.

7. The defences to this offence are similar to those for the offence of causing harassment except that there is no defence of acting reasonably - it can never be reasonable to cause someone to fear violence other than in regard to the narrower defence of acting reasonably for the protection of himself or another, or for the protection of his or another's property.

8. This offence is arrestable under the provisions of the Police and Criminal Evidence Act by virtue of its maximum penalty of five years imprisonment and/or an unlimited fine.

9. For both offences an alleged offender "ought to know" that t his or her conduct would cause harassment, or fear of violence, if a reasonable person, in possession of the same information, would think that the course of conduct would have that effect. Therefore, it would not be open for a defendant to argue that he or she did not intend to cause the victim harassment, or to fear violence, if a reasonable person, on the same facts, would realise that harassment or fear of violence would be the likely result of that course of conduct.

10. Sections 3 and 6 of the Act apply to the civil tort of harassment. Sections 3(1) and 3(2) and 6 will be brought into force on 16 June. Sections 3(3) - 3(9) will be brought into force following consultation on development of rules of court.

11. Section 3 enables a person who is, or may become, the victim of behaviour prohibited by section 1 to take civil proceedings against the perpetrator. The purpose of the section is to provide an alternative means of. protection, by way of civil injunction, and the right to compensation, in cases where the criminal sanction is inappropriate or not available. For example, this may be because the evidence is insufficient to satisfy the criminal standard of proof that an offence has been committed, or because the evidence indicates that an offence will be committed if the defendant is not restrained by an injunction.

12. Sections 3(1) and 3(2) provide for the civil proceedings to betaken. Sections 3(3) - 3(9) cover procedures for an arrest warrant and criminal breach of the civil injunction. Because these procedures and the interaction between criminal and civil processes is novel, rules of court and appropriate forms will be needed. Therefore, these sections of the Act will be brought into force after there has been the appropriate consultation and agreement on the rules required.

13. Until sections 3(3) to 3(9) are brought into force, breach of the civil injunction will be a contempt of court only and punishable as such.

14. Section 6 amends the Limitation Act 1980 so that the special time limit for actions in respect of personal injuries (3 years) does not apply to any action brought for damages under section 3 of the Act. The limit will, therefore, be 6 years

15. Under the provisions of section 5 of the Act a court sentencing or otherwise dealing with a person convicted of an offence under sections 2 or 4 of this Act, may, as well as passing any other sentence, make a restraining order. Such an order may, for the purpose of protecting the victim of the offence, or any other person named in the order, prohibit the defendant from doing anything described in the order which:

a. amounts to harassment, or

b. will cause fear of violence.

16. The order may have effect for a specified period, or until further order.

17. The prosecution, defendant, or anyone named in the order may apply to the court which made the order for it to be varied or discharged. Variation can include extending the duration of the order.

18. Consideration is being given to the formulation of rules of court to cover the making and variation of restraining orders. Until rules are available however, courts may wish to consider the following points:

i. courts may make a restraining order at sentence of their own volition; though normally it is expected that the prosecution would ask for such an order to be made and that the appropriate contents of the order would be considered in reports for sentence if any;

ii. the contents of the order are at the discretion of the court provided that the court is satisfied that the conditions are necessary to protect the victim or any other person named in the order from harassment or fear of violence;

iii. the order is not a punishment; it is protection for the victim or any other person named in the order. The duration of the order should not therefore depend on the seriousness of the conduct which led to the conviction, but on the perceived need to protect the victim from future acts by the defendant. In many cases the court might reasonably conclude that it cannot make a fixed duration order at the time of sentence. Indefinite orders ("until further order") may be the appropriate solution in many cases, so that the question of the discharge of the order can be considered at a variation hearing in due course, in the light of evidence of the behaviour, since sentence, of the defendant;

iv. courts will also want to consider carefully applications for the variation or discharge of orders. Courts should not be prepared to grant such applications without good cause. Where they are minded to grant an application courts will want to ensure that all interested parties have been able to make representations;

v. the restraining order is one of the most important new features introduced by the Act. Given that the nature of harassment involves an offender with- a strong motivation to continue causing distress to the victim, it is expected that the restraining orders will be appropriate in the majority of cases. It will be helpful if courts and prosecutors arrange that their local procedures include a prompt to ensure that the courts' attention is drawn to the powers to make such an order in every case of harassment, and that if the court decides not to make an order, the reasons for that decision are given in open court.

19. The disclosure and exchange of information, between agencies in the criminal justice system, is essential if restraining orders are to be fully effective. Copies of restraining orders, and any subsequent variations, should be provided to the police, as well as victims. The Phoenix criminal record database on the Police National Computer is being developed to enable the recording and retrieval of details of restraining orders and civil injunctions made under the Act. The Prison Service will also need full details of a restraining order, if a defendant is also sentenced to a term of imprisonment, so that they can prevent the defendant from contacting the victim(s) from prison. Similarly the prosecution and the victim will need to know the release date of the defendant from prison so that an application can be made for a variation in the terms of the restraining order (if appropriate). It is hoped that all agencies will co-operate as far as practicable to ensure that relevant information is made available in good time.

20. A 'breach of a restraining order is itself a criminal offence with a maximum penalty (on indictment) of five years imprisonment and/or an unlimited fine. A single breach of the order is sufficient for an offence to be committed. In view of the liability for criminal penalties for a breach of the order, courts may wish to ensure that a defendant, who is the subject of such an order, receives a written statement of the consequences of breaching the terms of the order.

21. Section 7 interprets the terms used in sections 1 to 5 of the Act. Section 12 of the Act provides that the Secretary of State may issue a certificate that anything done by a specified person on a specified occasion related to:

a. national security;

b. the economic well being of the United Kingdom; or

c. the prevention or detection of serious crime;

and was done on behalf of the Crown. The Act does not bind the Crown and such a certificate will confirm that the conduct in question does not fall within the scope of the Act.

22. People suffering from a mental disorder are not exempt from the provisions of this Act and their conduct should be considered in the light of the reasonable person test in the same way as for any other person. Nonetheless, attention is drawn to the provisions of Home Office Circulars 66/1990 and 12/1995 which gave advice on appropriate action to be taken with regard to mentally disordered people who come in contact with the criminal justice system, and the amendment to the circulars issued on 9 April 1996 in the light of the case of R v. Chippenham Magistrates' Court ex parte Thompson.

Annex B - Home Office Circular 'Sections 125, 126 and 127 of the Serious Organised Crime and Police Act 2005'

From: CRIME REDUCTION & COMMUNITY SAFETY GROUP, Public Order and Crime Issues Unit

FOR MORE INFORMATION CONTACT: For Part 1 contact: Public Order & Police Co-Operation Unit, Fry Building, 2 Marsham Street LONDON SW1P 4EF 020 7035 1806 For Part 2 contact: Bioscience Unit, Department For Trade & Industry 151 Buckingham Palace Road, London SW1W 9SS 020 7215 5000 , Email:

THIS CIRCULAR IS ADDRESSED TO: Chief officers of Police (England and Wales) Clerks to the police authorities Director General of NCS Director of Public Prosecutions The Chief Crown Prosecutor Chief Crown Prosecutors Lord Chief Justice Crown Court Judges District Judges (Magistrates' Courts) Senior District Judge (Chief Magistrate) Court of Appeal (Criminal Division) HMCS Area Directors HMCS Regional Directors Crown Court Managers The Justices' Clerks' Society The Magistrates' Association The Judicial Studies Board

COPIES ARE BEING SENT TO : Chief Constable, PSNI HM Chief Inspector of Constabulary Association of Chief Police Officers CENTREX Police National Legal Database

Broad Subject: Crime and Disorder

Sub Category: Animal rights extremists

Introduction

1. In its paper Animal Welfare- Human Rights - protecting people from animal rights extremists, which was published in July 2004, the Government announced that it was intending to strengthen the law to tackle campaigns of harassment by animal rights extremists and create a new offence of protesting outside homes. It also flagged its intention to consider new offences of causing economic damage to the suppliers of firms or research groups engaged in the legitimate and licensed use of animals.

2. Part 1 of this circular provides guidance to the police and those working in the criminal justice system on the provisions in sections 125, 126 and 127 of the Serious Organised Crime and Police Act 2005 (the "2005 Act). Section 125 extends the Protection from Harassment Act 1997 (the "1997 Act" to make it an offence for a person (or persons) to harass two or more people on separate occasions where the purpose is to persuade those people or any other person to do something or not to do something they are entitled to do; section 126 creates a new offence of harassment of a person in his home and section 127 amends Section 42 of the Criminal Justice and Police Act 2001 (the "2001 Act") to give the police the power to direct someone to leave and additionally not return within a specified period of up to 3 months.

3. Part 1 of this circular supplements Home Office Circulars HOC 34/97, HOC 28/2001 and HOC 24/2001.

4. Part 2 of this circular provides guidance on the provisions in Sections 145 to 149 of the 2005 Act. Section 145 is a new offence of interference with contractual relationships so as to harm animal research organisation; section 146 is a new offence of intimidation of persons connected with animal research organisation.

5. The provisions come into force on 1 July 2005 and apply in England and Wales only. This Circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

6. The text of these sections of the 2005 Act can be found on www.opsi.gov.uk/acts/acts2005/20050015.htm

7. The changes represent a package of measures designed to deal with the harassing and intimidatory behaviour of animal rights extremists, but clearly in relation to sections 125 to 127, the provisions apply more broadly and can be used to deal with harassment whatever its motivation.

Part 1 - Background to new offences

Section 125 - Harassment to deter lawful activities

8. Although the 1997 Act was introduced primarily to tackle stalking, the offence of harassment extends to any form of persistent conduct which causes another alarm or distress. So the range of behaviour that is capable of constituting an offence under the 1997 Act is potentially very wide. Examples might include threatening emails, telephone calls, threatening letters, verbal abuse, criminal damage, etc. But the behaviour in question must be such that a reasonable person would think it amounted to or involved harassment.

9. The main menace which the Government is seeking to tackle is harassment of people who are connected in some way to organisations, universities, or companies involved in the use of animals for scientific research. We are seeking to capture behaviour which causes alarm or distress to individuals to the extent that they are deterred from carrying out their lawful business.

10. The reason for amending the 1997 Act is to clarify uncertainties with regard to who is protected under this Act. Currently, under section 1 (1) of the 1997 Act the term "harassment" applies to a course of conduct which harasses or alarms another or which causes that person distress. Section 2 of the 1997 Act makes it a criminal offence for a person to pursue a course of conduct which amounts to harassment of another and which that person knows amounts to harassment of the other. Section 3 provides a civil remedy which enables a victim to seek an injunction against a person who is harassing them or may be likely to do so. There is no need for a person to have been convicted of one of the offences under the Act in order for an injunction to be granted against him. If the High Court or county court is satisfied that harassment has taken place or is reasonably anticipated, it may grant the injunction.

11. To secure a conviction under section 2 of the 1997 Act it needs to be proved that there is a course of conduct in which one or more persons harassed another on at least two occasions.

12. The courts have applied a strict interpretation of the word "another" which has confined the application of this provision to harassment of individuals. This was the problem highlighted in the case of DPP v Dziurzynski [The Times, July 8, 2002, DC]. In this case it was held that a limited company could not be the victim of harassment although an individual employee or a close knit definable group of individuals e.g. a husband and wife living in the same house (see DPP v Dunn October 2000 QBD) could be. Where, therefore, a charge alleged harassment of "the employees" of a particular corporation, but there was no evidence of any individual employee being harassed on more than one occasion, the charge that the corporation was being harassed on more than one occasion through conduct directed at different employees on different days, could not be sustained.

13. Following the ruling in DPP v Dziurzynski it was unclear how far employees of a company could benefit from the provisions of the 1997 Act when they have not previously themselves been harassed even though a fellow employee has been. Section 125 seeks to address this in a number of ways.

14. First, section 125(2) adds new subsection 1(1A) to the 1997 Act. This makes it an offence for a person (or persons) to pursue a course of conduct involving the harassment of two or more persons on separate occasions which he knows or ought to know involves harassment and the purpose of which is to persuade any person (not necessarily one of the persons being harassed) not to do something he is entitled to do or to do something he is not under any obligation to do.

15. Secondly, section 125(5) inserts a new subsection 3(3A) to the 1997 Act to clarify who can seek an injunction. In relation to the harassment of two or more persons, it is the person who is or may be the victim of the course of conduct (section 3A(2)(a)) or any person at whom the persuasion is aimed (section 3A(2)(b)) who can apply to the High Court. Any person in section 3A(2)(b) can be a company.

16. New section 7(5) to the 1997 Act, added by section 125(7), states that references to a person in the context of harassment of a person, are references to an individual. Therefore the usual Interpretation Act definition which includes a body of persons corporate or unincorporate will apply when the word person is used otherwise than in the context of harassment. New subsection 3(3A)(b) creates a new power for a person to apply for an injunction when the course of conduct involving harassment is with the aim of persuading him to do something he is not entitled or required to do, or to do something he is not under any obligation to do. However, there is no requirement for the person being harassed to be the same person as applies for the injunction. This will enable a company to apply for an injunction when its employees have been or may be harassed.

17. Thirdly, section 125(7) amends the definition of course of conduct in section 7(3) of the 1997 Act so that in relation to two or more persons a course of conduct means conduct on at least one occasion in relation to each person.

18. By way of illustration, where for example, an animal rights extremist sends a threatening letter on one occasion to an individual who works for a company and the same extremist sends a threatening email on another occasion to another individual who works for the same company and his intention is to persuade the individuals that they should not work for that company because of the work that company does, or the contracts that it has with other companies, he would commit an offence.

19. In this example, under new section 3(3A), either the individual employees could apply for an injunction to protect themselves from harassment, the company could apply for an injunction to protect its employees.

20. Taking another example, where an animal rights extremist sends a threatening letter on one occasion to an individual who works for company A and the same extremist sends a threatening email on another occasion to another individual who works for company B, and his intention is to persuade the individuals that they should not work for these companies because both companies supply company C, or he intends by his actions to persuade companies A and B not to supply company C, he would commit an offence.

21. In terms of who could apply for an injunction under new subsection 3(3A) in this example, the individual employees of company A and company B as victims of harassment could apply to the High court for an injunction to protect themselves from harassment. Additionally, company A or company B could apply in its own right to protect its employees. Company C, which is ultimately the target at whom the persuasion is aimed, could also apply for an injunction to protect its employees. Company C, could apply for an injunction which not only covered itself and its employees, but also its supplier companies (companies A and B) and their employees.

22. This means that companies now have the option to take out injunctions against people harassing their employees in the name of the company and will not have to take action in the name of a particular employee.

23. To summarise, where two or more people who work for a particular company or companies have been harassed (or where harassment is anticipated) in order to persuade them not to work for that company, or in order to persuade the company not to supply another company, either the employees themselves or the companies in question could apply for an injunction.

Course of conduct

24. A course of conduct must involve conduct on at least two occasions, and in relation to the harassment of two or more persons, it means conduct on at least one occasion in relation to each person.

25. Clearly it is for the courts to decide in any case whether two or more incidents amount to a course of conduct which consequently led to persons being alarmed or distressed. But if there are only two incidents and a long period between them, the less likely it is that they will be accepted by a court as amounting to a course of conduct.

26. However, the courts have ruled that it is not just the number of incidents which make up a course of conduct, but whether those incidents could be said to be so connected in type and context as to justify the conclusion that they could amount to a course of conduct. (see Lau v DPP [2000] and R v Patel [2005] 1 Cr. App. 27)

27. There is no specific requirement that the activity making up a course of conduct should be of the same nature. Therefore different types of behaviour by a person such as making a telephone call on one occasion and damaging the victim's property on another may suffice, provided that the prosecution can also show that there was a common intent to persuade the victims or any other person to do something or not to do something they were entitled to do.

28. It will often not be immediately apparent that separate incidents are connected as a course of conduct. It will therefore be important that officers are alert to the possibility that such incidents form part of a course of conduct and to take this into account during the investigation of each incident making whatever inquiries seem appropriate to determine whether the incident is in fact part of a course of conduct. Police will need to ensure that accurate records are kept of each incident.

Arrest powers

29. Nothing in section 125 of the 2005 Act affects the police's powers of arrest for the offence under section 2 of the 1997 Act or the offence of breaching a civil injunction under section 3(6). Both offences remain arrestable.

Penalties

30. Nothing in section 125 of the 2005 Act affects the penalties for the offences in section 2 and section 3(6) of the 1997 Act. Where a person is convicted of an offence under section 2, the courts can also apply for a restraining order under section 5 of the 1997 Act.

ECHR Impact

31. The Parliamentary Joint Committee on Human Rights in its eighth report of Session 2004-5 on the Serious Organised Crime and Police Bill expressed concern that the amendments to the Protection from Harassment Act would disproportionately engage Articles 9,10 and 11 of the ECHR. "The notion of harassment seems to us to be sufficiently elastic to cover a wide range of demonstrations and protests directed against people and institutions. Political protestors are particularly likely to have the intention of persuading people to do things they have no obligation to do, or not to do things they are free to do. The Committee accepts that the protestors would commit an offence only if they took action on two or more separate occasions..... but the occasions might be separated by a long period of time, and the protests might be at entirely different locations......."

32. While these provisions may engage rights under articles 9, 10 and 11, they are qualified rights and interference with them can be justified in the interests of public safety, the protection of public order and the protection of the rights and freedoms of others.

33. The line between what is legitimate protest and what constitutes harassment of staff because of the nature of their work or the company for which they work is a thin one. The 1997 Act is certainly not intended to criminalise people who campaign lawfully against particular activities or to stifle their right to freedom of expression or freedom of assembly and the Government does not believe that the amendments in the 2005 Act have this effect.

34. The new provisions will not catch legitimate activity such as members of the public lobbying their Member of Parliament or charities handing out leaflets or asking people to sign petitions for example. Clearly, if individuals started engaging in a course of conduct which involved, for example, threatening Members of Parliament by sending threatening emails or verbally abusing them and it could be shown that there was a common intent to persuade them not to vote on a particular issue for example, then they might be caught but only if their actions were causing alarm or distress to the Members of Parliament concerned.

35. Similarly if leafleting was done in a threatening manner, the offence of harassment might be engaged. For example, if the person handing out leaflets threatened someone who did not wish to take the leaflet, or blocked that person's way into the building outside which they were standing and did it on more than one occasion to the same person, and the person was actually caused alarm or distress then the current provisions of the 1997 Act could apply. For the amended provisions to be engaged, two or more persons would have to be caused alarm or distress on separate occasions and the prosecution would need to show that the person's intention was to persuade those people not to do something they were entitled to do or to do something they were under no obligation to do.

36. The 1997 Act therefore already contains a number of safeguards to prevent innocent people from being caught by the offences it creates. The new provisions require at least two episodes of harassment - i.e. behaviour which causes alarm or distress not merely discomfort; the harassment must be directed at one or more individuals (but not necessarily towards the same individual); it must take place on separate occasions; and have a common intent to persuade or dissuade the individual(s) from doing something they could otherwise do. There are defences if the course of conduct was pursued for the purpose of preventing and detecting crime; pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment; or in the circumstances, was reasonable.

Section 126 - harassment etc. of a person in his home

37. Section 126 adds section 42A to the 2001 Act and creates a new offence of causing harassment, alarm or distress to a person in his home. The new offence criminalises behaviour of broadly the same kind as that which enables the police to issue a direction under section 42 of the 2001 Act. It is intended to provide the police with additional powers to deal with harassment, alarm or distress of a person in their home.

38. The new offence contains four ingredients which need to be proved. A person will commit an offence under section 42A(1) if :

(i) he is present outside or in the vicinity of any premises that are used as a dwelling;

(ii)

(iii) he is there to represent to the resident or another individual or persuade the resident or another individual that he should not do something he is entitled to do; or that he should do something he is not under any obligation to do;

(iv)

(v) the person intends his presence to amount to the harassment of, or to cause alarm or distress to the resident; or knows or ought to know that his presence is likely to do so; and

(vi) his presence amounts to the harassment of, or causes alarm or distress to the resident, a person in the resident's dwelling, or a person in another dwelling in the vicinity of the resident's dwelling; or is likely to result in the harassment of, or cause alarm or distress of any such person.

39. The purpose of the new offence is to give the police the ability to deal with harassing or intimidatory behaviour by individuals towards a person in his home even after an incident has taken place. Currently the police's ability to give directions to protestors under section 42 of the 2001 Act and to arrest them if they knowingly contravene a direction is only effective if the police are in attendance at the scene of a protest. Section 42 does not cover a situation where, for example, a resident makes a complaint about the presence of protestors outside his home, but the protestors disappear before the police arrive, or the police are not able to give a direction as they do not have the resources to enforce it at the scene.

40. The new offence attracts a specific power of arrest so that a constable in uniform can make an arrest where he has reasonable grounds for suspecting the offence has taken place and that the protestor is guilty of the offence. This is stronger than the arrest power in section 42 of the 2001 Act which can only be exercised by a constable where he reasonably suspects a person is committing an offence of contravening a direction.

41. This means that the police can deal with protestors after the event. This will be useful if, for example, there is evidence of a protest on CCTV but the police were not present, or the police were present and could identify the protestors but there was some difficulty in enforcing a direction at the scene of the protest.

42. The new offence in section 42A of the 2001 Act might be used where for example, protestors had conducted a rooftop protest at a person's home. If the police were not in attendance, but the resident had CCTV evidence of particular individuals on the roof of his house, and he had been harassed, alarmed or distressed by the presence of the protestors, the police could arrest the suspects for the new offence.

43. The penalty for the new offence is imprisonment for a term not exceeding six months or a fine not exceeding level 4 on the standard scale or both. This will rise to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale or both when section 281(5) of the Criminal Justice Act 2003 comes into force.

44. Section 42A(2) of the 2001 Act defines the persons who can be subjected to harassment, alarm or distress by the presence of others at their home. They are the resident, a person in the resident's dwelling, for example a child or partner; and a person in another dwelling in the vicinity of the resident's dwelling, i.e. a neighbour.

45. The police have used direction powers in section 42 of the 2001 Act to prevent the harassment of residents from a number of different protest groups, for example, people who have protested for the rights of fathers to have access to their children, anti GM crop protestors and environmental protestors. Similarly, the new offence in section 42A has broad application and may apply wherever an individual is outside or in the vicinity of a person's home, provided that the four ingredients of the offence are met. The police will therefore need to consider the use of these powers proportionately.

What will trigger the new offence

46. When dealing with situations involving the harassment of a person in his home, the police now have the option of utilising the new offence in section 42A of the 2001 Act or their powers under section 42 of the 2001 Act to issue a direction. In many cases a direction by a police officer at the scene to prevent harassment of the resident or the causing of any alarm or distress to the resident will be appropriate.

47. Police will need to consider carefully which powers to use. This will depend on various factors such as the number of people in the vicinity of the person's home, the behaviour of such individuals, the purpose for which they are there, the impact of their presence on the resident and on anyone living with them and on people in the surrounding area etc.

48. Examples of the sort of behaviour which may trigger the new offence in section 42A (or could trigger the giving of a direction under section 42) include:

Aggressive or abusive conduct such as shouting, heckling or shouting abusive slogans (such as "animal killer!") or continuous loud chanting at persons coming into or out of a dwelling, or any visitors to that dwelling. Such conduct could also be accompanied by the aggressive use of banners or placards. For example, they could be used to block or impede vehicular or pedestrian access to a dwelling.
Continuous and determined conduct, such as persistent and sustained aggressive hammering on windows or doors, ringing doorbells, or shouting aggressively through letterboxes.
Climbing onto the roof of a dwelling when engaged in the sort of conduct mentioned above, or on its own.
Prowling around the gardens or immediate vicinity of a dwelling at night.

49. The new offence is not intended to restrict a person's right to protest lawfully against issues about which they feel strongly, or indeed to restrict people who wish to gather outside the house of a celebrity, for example. It is also not intended to restrict the lawful right of the press to seek comment from a public personality. However, balanced against the right to gather and express one's opinion is the right of individuals to privacy in their own homes.

What is meant by vicinity?

50. There is no legal definition of "vicinity" and ultimately it is for the courts to determine what is meant by it as a matter of fact and degree in the particular circumstances of each case. The wording in the 2001 Act was drafted deliberately widely to allow police officers operational flexibility. For example, vicinity can be viewed as more than a physical boundary extending as far as the resident's garden gate.

51. We are aware that some forces define vicinity as within sight or sound, and while this may on many occasions be appropriate, it may not always be enough. Police may need to provide evidence that intimates that the vicinity is measured by the impact it has on the householder. For example, someone protesting at the end of a half-mile long drive, which is the only road in and out for the inhabitants at the other end, may be out of sight and sound, but they could still have the ability to cause harassment, alarm or distress to the residents.

Section 127 - harassment etc: police direction to stay away from person's home

52. Section 127 amends section 42 of the 2001 Act to provide the police with an additional power to direct a person to leave the vicinity and not return within such period as a constable may specify, which can be up to 3 months.

53. One of the concerns raised about section 42 of the 2001 Act is that it does not prevent the same protestors returning again and again to the scene to protest in a way which causes harassment, alarm or distress to residents. It is doubtful whether the police could currently direct a person to leave the vicinity for any significant period of time. Section 127 of the 2005 Act clarifies this so that where the police direct a person to leave the vicinity, they also have the option to require the person not to return for a specified period of time.

54. If a person does return within the period specified in the direction, beginning with the date on which the direction is given, and does so for the purposes of representing to or persuading a person not to do something he is entitled to do or to do something he is not obliged to do, he commits an offence.

55. The penalty for the new offence is imprisonment for a term not exceeding six months or a fine not exceeding level 4 on the standard scale or both. This will rise to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale or both when section 281(5) of the Criminal Justice Act 2003 comes into force.

56. The maximum period for which a person can be required not to return is 3 months. The constable issuing the direction has discretion in deciding how long a person should be required not to return. An example of when this power is likely to be appropriate is where there is evidence that the person whom the constable is directing to leave is also a regular protestor at particular premises and that requiring them not to return for a specified period will prevent harassment, alarm or distress being caused to the resident.

57. An offence will only be committed where a person returns within that specified period for the purpose of representing to, or persuading the resident not to do something he is entitled to do or to do something he is not obliged to do. The mere presence of a person in the vicinity may not be sufficient to prove the offence.

58. Police forces will wish to consider how to record the details of the person to whom a direction was given which includes a requirement not to return for a specified period and the date on which such a direction was issued.

Part 2 Background and context to new offences of unlawful activity aimed at animal research organisations and their associates

59 For many years, animal rights extremists have conducted campaigns of unlawful activity in order to further their aim of stopping any use of animals in scientific research.

60. All organisations which use animals in research in the United Kingdom require licences under the Animal (Scientific Procedures) Act 1986. This act sets out a regulatory system generally considered to be the strictest in the world. Organisations involved in breeding, supplying or using animals in research are licensed by the Home Office and subject to regular inspection to ensure that the conditions of their licenses are being observed. Breeders and suppliers, as well as organisations carrying out research, are included within the definition of "animal research organisations" in the 1986 legislation. The Government supports the system regulating the use of animals in experiments, and believes that people who engage in lawful research should be able to do their jobs free from fear, intimidation and the threat of violence.

61. Over recent years the campaign by animal rights extremists has developed new tactics. These include targeting third parties with unlawful acts and threats, with the aim of persuading them to break their commercial links with research organisations. Animal extremist activity has included:

Threats aimed at suppliers of such services as milk and parcel delivery to animal research organisations.
Letters to shareholders of suppliers of such services as banking and insurance threatening them with criminal acts unless they divest their shareholding.
Letters written to neighbours of executives of suppliers of animal research organisations, falsely asserting that the executive is a paedophile.

62. In response to a catalogue of similar incidents aimed at animal research organisations, the Government has introduced two new offences: "Interference with contractual relationship so as to harm animal research organisation" and "Intimidation of persons connected to animal research organisation". The operation of these offences, which apply only in England and Wales, is explained below.

63. In some instances the conduct defined under the new offences will already be a crime under other legislation. In others it will only be a civil wrong, but in order to be an offence under the new provisions, it will be one or the other. Any criminal act could lead to the committing of an offence under the new provisions; offences consistent with the previous offending behaviour of animal rights extremists would include criminal damage, malicious communication and harassment. Tortious acts which might lead to an offence under the legislation may include defamation, among other acts. It is intended that the additional legislation will enable sentencing courts to consistently recognise the gravity of the activity.

Section 145 of the 2005 Act: Interference with contractual relationship so as to harm an animal research organisation

64. This offence is intended to tackle illegal acts which are likely or intended to lead the victim to stop its commercial relations with another party. This relates to a situation where the perpetrator's intention is to hinder the operations of organisations holding licences under the Animal (Scientific Procedures) Act 1986. Either an unlawful act or the threat of one is required to trigger an offence under this section. The unlawful act involved can be either an existing offence, as defined by earlier legislation, or a tort, which causes the victim loss or damage of any description, unless the tort is the tort of inducement to breach of contract. What a tort is and why inducement to breach of contract is excluded is explained in paragraphs 65 and 66 below.

65. A tort is an act which is a wrong in civil law but is not a criminal offence. The normal remedy is for the victim of the tort to sue for damages in the civil courts. The effect of the new legislation is to make tortious acts, committed with the necessary intention and which cause loss or damage, a criminal offence.

66. No offence is committed under this statute if the only relevant tortious act is an inducement to breach a contract. This ensures that no offence is committed by those peacefully advocating or representing the case that one person should cease trading with another, on the basis of that other's connection to an animal research organisation. Ministers have said in Parliament that they regarded such campaigning as a wholly legitimate exercise of the right to free expression, and that this legislation would and should not affect that right.

67. Examples of tortious acts, which might lead to the commission of an offence, include defamation (slander and libel), nuisance, trespass, and unlawful interference with trade. The prosecution would have to show that these acts had caused loss or damage to the person or organisation which had been the victim of the tortious acts; or if the prosecution was mounted on the basis of a threat to carry out a tortious act, that this tortious act would result in loss or damage to the victim. Typically, proof of damage would be by 'expert' statement and/or evidence directly from the victims detailing the loss or damage they have suffered, or would have suffered in the case of threats.

68. The prosecution would also have to show that the illegal acts or threats were intended or likely to cause the subject to break his commercial links with a third party and that the recipient of the threat believes that it might be carried out. It is not necessary that there should be any existing commercial relationship between the victim and the third party, or that any such relationship is the subject of a formal contract or agreement between the two parties- it is sufficient that the parties should have contemplated entering into a commercial arrangement. It is the intention behind the activity that moves the illegal act or threat into the scope of the new offence.

69. The intention in causing such a breach in commercial dealings is to harm an animal research organisation. The legislation defines "harm" as hindering in any way the operations of such an organisation. An intention to prevent the supply to the organisation of an essential good or service which it needs for its operations is likely to suffice. Neither of the parties to the commercial arrangement which the offender seeks to disrupt need be an animal research organisation, so long as it can be proved that there is an intention to harm an animal research organisation (the first example in paragraph 71 below illustrates this point).

70. Establishing the existence of the intention might involve the language used by the offender; or connections between the offender and animal extremist organisations. Accessing of internet sites which directed the offender towards a particular victim, or the posting on a site of such a direction, could also be relevant evidence to place before the court to establish intention.

Example offences under section 145

71. To illustrate how the provisions might work in practice, the following are examples of conduct which could be offences under these provisions. The first example involves criminal conduct, the second, a threat of a tort.

An extremist (person A) attacks with paint-stripper (and causes criminal damage to) a car belonging to an employee of a property company (B) which leases offices to a supplier of photocopiers (C) to a University which carries out licensed animal research. The attacker spray-paints the message that his action is in retaliation for that individual supporting animal abusers with the intention of frightening the Company B into stopping its business relations with company C, and thereby harming the University (the purpose of the attack).
An animal rights supporter sends the Chairman of a freight company a letter saying:

"unless your company stops delivering milk/fuel/letters to Bank XYZ Ltd which supplies banking services to animal breeder ABC Ltd [the threat], we will spread an internet allegation that your Finance Director is a paedophile" [the libel].

72. Threats or menaces made on internet sites would be just as capable of engaging the offence as those made through other media, such as in letters, telephone calls or e-mails, or face-to-face.

Section 146: Intimidation of persons connected with an animal research organisation

73. This offence is committed when a person threatens another with a crime or tort causing loss or damage, unless they do something they are not obliged do, or stop doing something they are entitled to do. The offence is aimed specifically at coercive conduct intended to change behaviour by menace. An ingredient is that the person threatened must be connected to an animal research organisation in a way in which the Act specifies, and the threat must be made because of that connection.

74. The legislation sets out persons who are connected to animal research organisations, including employees, suppliers, customers, owners (and others with a financial interest), funders of animal research organisations, and people related to or known to those people. In turn, those who supply, buy from, are employed by, have a financial interest in or fund the first set of connected persons, or are related to or known personally to them, are also listed in the legislation. Threats made to any of these people because of their connection to an animal research organisation, with the necessary intention, constitute an offence under these provisions.

75. The prosecution needs to show the threat that underpins the charge, and that this threat was driven by the suspect's knowledge that his victim was connected (in one of the ways set out in the statute) to an animal research organisation. This might take the form of citing the language used in making the threat, or possibly showing the offender's links with other extremists, where it can be proved that they are targeting particular individuals or organisations. The victim must believe the threat and that the offender is capable of carrying it out.

76. This offence is designed to tackle the more remote but no less damaging activities of extremists. For example, it would be an offence under section 146, for an animal rights extremist to issue a threat against an individual who plays golf with an employee of an animal research organisation, that unless they stop playing golf with the employee, their property will be attacked.

Relationship between the new offences and existing statutes

77. Neither of the new offences makes lawful actions illegal. Both new offences are triggered by unlawful acts either criminal or tortious. There is the option of bringing proceedings either under the new provisions or under an existing statute, in respect of the 'qualifying' offence where this is a criminal act, or both. The choice of offence will be, of course, for the individual prosecutor to make, based on the particular facts and an assessment of the public interest.

78. Investigators should of course always be alert to the possibility of the commission of other offences in pursuit of the aim of harming animal research organisations and in the case of webs of activity, the possible existence of a conspiracy.

Penalties and Arrest Powers

79. The new offences can be tried either in the Magistrates Court or in the Crown Court. If a person is found guilty by a magistrates' court, the maximum sentence is 12 months imprisonment, or a fine of not more than the statutory maximum, or both. If a person is found guilty in a Crown Court, the maximum sentence is 5 years imprisonment, an unlimited fine, or both. By dint of the maximum penalty on indictment, the offences are arrestable under section 24(1)c of the Police and Criminal Evidence Act 1984.

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