Harassment is one of the rare legal actions which can be pursued through both the criminal and civil Courts. The hurdle with pursuing such a harassment claim in the criminal Court is the higher burden of proof, whereby a complainant is required to prove harassment beyond a reasonable doubt. This essentially requires a complainant to convince a jury that a defendant’s actions amounted to harassment.
The burden of proof in the civil Courts is lower and only requires a claimant to prove harassment on the balance of probabilities. This means harassment must be shown to be more likely to have been caused than not.
Making/defending a claim of harassment through the civil Court
Legislation
The Protection from Harassment Act 1997 (Act) prevents a person from acting in a way which amounts to harassment of another or in a way that he/she ought to be aware would amount to harassment of the other. This is an objective test and considers whether a reasonable person with the same information as the defendant would be aware that his/her actions would amount to harassment. Section 2A of the Act also confirms that the stalking of another is also a form of harassment.
Compensation and injunctions
A successful claim of harassment may result in a defendant having to pay the claimant compensation for any loss caused and any distress suffered, if reasonable in the circumstances. An injunction may also be ordered against the defendant if this again appears to be required in the circumstances.
The Courts are generally reluctant to grant injunctions and have confirmed that injunctions are only to be granted where absolutely necessary, as there are implications in respect of an individual’s human rights when having an injunction taken out against them. Any subsequent breach of an injunction is punishable as a crime.
The case of American Cyanamid established the three questions for the Court to consider before granting an injunction. These are:
- Is there a serious question to be tried?
- Would damages be an adequate remedy?
- Where does the balance of convenience lie?
It will be for the Judge presiding over the case to use his/her discretion when weighing up the above factors.
Defences
A defendant may plead a number of defences in response to any claim of harassment brought against them. This includes the right to freedom of expression and where such defence is raised, the Court will have to consider its impact and whether restricting such right in the circumstances would be appropriate in order to prevent harassment.
Further defences include:
- The purported action of harassment was pursued for the purpose of preventing or detecting crime;
- The purported action was pursued under a law or an enactment to comply with any condition or requirement imposed by anyone under that enactment;
- That, in the particular circumstance, the purported action is held to be reasonable; or
- The incidents complained of did not amount to a course of conduct capable of amounting to harassment.
How Nelsons can help
Stuart Parris is an Associate in our expert Dispute Resolution team.
If you feel that you are experiencing harassment or have been accused of harassing another, please contact Stuart or a member of our Dispute Resolution team who will be able to assist with any claim through the civil Court.
Please call 0800 024 1976 or contact us via our online enquiry form.
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