BBC News has recently reported that singer Zayn Malik has pleaded no contest in criminal proceedings in the USA relating to four allegations of harassment against model Gigi Hadid’s mother, Yolanda.
In England and Wales, both criminal and civil harassment is governed by the same statute, the Protection from Harassment Act 1997. Given that Nelsons do not have experts in criminal law, the scope of this blog is to discuss what might have happened if the incidents took place in England or Wales and Gigi Hadid’s mother had brought civil proceedings.
How would Zayn Malik’s harassment case be dealt with in England or Wales?
Starting at the end first by discussing the remedy that someone may seek if they pursue harassment proceedings, the primary reason that someone would pursue harassment action is to make the course of conduct stop. The Courts do this by granting an injunction against an offending defendant. If an injunction is breached, even though it has been obtained through the Civil Courts, it would amount to contempt of Court, which in turn can result in a prison sentence depending on the severity of the breach.
Individuals should, however, be aware that simply winning a case of harassment would not automatically entitle an individual to an injunction. An injunction limits a person’s freedom and accordingly the Courts have a balance that they have to strike between stopping the offending conduct and the offenders right to live his life as he sees fit. Injunctions are, therefore, a matter of discretion for the Judge and whether a Judge is willing to exercise his/her discretion in a particular case will almost certainly depend on the severity and number of incidents found to have taken place.
If a Judge decides not to award an injunction, section 3(2) does enable a Judge to award damages for “any anxiety caused by the harassment and any financial loss resulting from the harassment”.
In order to win a case of harassment, it is essential to recognise that, given that the statute applies equally to criminal as well as civil matters, the Courts will not make a finding of harassment lightly. There needs to be a course of conduct (i.e. more than one incident) with a number of fairly severe steps taken by the offender. The test that the Court will apply in terms of establishing whether harassment has taken place is the ‘reasonable person’ test (i.e. “the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other”).
There are a number of defences that appear in section 1(3), which confirms:
“(3) Subsection (1)…does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”
Comment
Given what we have set out above, it will no doubt be apparent that each case turns on its own facts and Judges have a very wide discretion when deciding whether there has been harassment and what remedy to award. It is therefore essential that early advice is sought.
How Nelsons can help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
Should you be affected by harassment or have been accused of it, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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