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Published: Fri, 02 Feb 2018
The Protection of Harassment Act 1997
(1) The mode of trial for a S2 offence PHA1997 is by summary only, this is stated in section 2(2) “ A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both”  . This can also been seen in the CPS guidance in where it states that this not an indictable offence.  The S2 offence of harassment is seen as a minor offence as there has to be no fear of violence as in S4 of the Act. It can also be noted that trial by either way for a S2 offence is not on the list of crimes that can categorised as either way offence in schedule 1 virtue of S17 of the Magistrates Act 1980 Chapter 43. 
(2) The maximum sentence for a S2 offence is clearly stated in S2 (2) PHA 1997
“A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both”
Therefore the maximum punishment a magistrate can impose is 6 months in prison, a fine not exceeding £5000 or both.
To decide whether S2 PHA 1997 is a conduct, result or status crime it is necessary to give a brief explanation each one of these crimes.
A conduct crime is a crime where the act itself is prohibited. But there does not need to consequences or harm for this to be established, an example of this is Section 3 of the Road Traffic Act 1988 “If a person drives a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road, he is guilty of an offence.” The crime is driving without reasonable care and attention. 
A result crime is more serious and requires evidence that the act lead to a prohibited result although the act itself does not need to be criminal only the result. For example if someone threw a stone this in itself would not be an illegal act, but if the stone hit someone in the head then a criminal act would have taken place. It has to be proved that the defendant’s actions caused the result. A good example of this is Section 1 of the road traffic Act 1988. 
A status crime does not depend on conduct, but an event of circumstances which is in some way related to the defendant. Two good examples of this are the cases of R V Larsonneur (1943) 24 Cr App R74 (CA) and Winzer V Chief Constable of Kent  .
Looking at the above definitions it can be seen that a S2 offence PHA 1997 is a conduct crime, as in a S2 offence there does not need to be any threat of harm or harm within the act of harassment, but only the knowledge that there conduct is prohibited.
The actus reus for a S2 offence requires that there be a course of conduct by the accused which results in the harassment of the victim. Harassment of the victim is not defined within the act but in S7 (2) it states “References to harassing a person include alarming the person or causing the person distress”.  A course of conduct is defined in S7 (3) as “A course of conduct” must involve conduct on at least two occasions”.  So the actus reus of this crime is the victim must be suffer from harassment from the accused on at least two occasions.
The mens reus for a S2 offence is entirely objective a leading case for this being Colohan  EWCA Crim 1251 where it was decided that mental illness or other incapacitating factors will be no defence.  The first part of the test is in S1 (1) (b) being the defendant is guilty if his conduct “which he knows or ought to know amounts to harassment of the other.”  The second part of the test is in S1 (2) “For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to 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.”  This means even if the defendant is unaware that his acts constitute harassment he will still be criminally liable. As long as the reasonable man believes that his acts would constitute harassment.
(a) The facts pertaining to the charge of an offence contrary to S2 PHA 1997. Is that the appellant Martin Richard James was charged with this offence for pursuing a course of conduct between 8 and 12 November 2007 which it was said amounted to the harassment of Mrs Thomas.  At the time of the offence appellant was receiving care from Carmarthen Social Services and Mrs Thomas was the acting team manager of the Carmarthen Social Services Adult Team. On the 8th of November the appellant rang the Social Services to complain about his care, Mrs Thomas was unavailable at the time but returned his call. During this conversation the appellant shouted, swore and verbally abused Mrs Thomas. A similar incident occurred later on the same day which was overheard by another member of staff. On the 9th November a similar incident occurred when Mrs Thomas again verbally abused when returning the appellants call.  On the 12th November the appellant again rang Mrs Thomas who answered although she was in a meeting with a Mr Rogers at the time. The call was put on speaker phone and heard by both of them. The appellant was again abusive and apparently said that he could not promise that he would allow Mrs Thomas to leave his house without an axe in her head. The evidence was that Mrs Thomas was distressed and upset by these calls. It was her duty to return the calls if the appellant was not able to get hold of her because of her position as acting team manager of the Social Services Carmarthen Adult Team. 
(b) The Magistrates Court that Mr James was initially convicted in was Llanelli Magistrates Court, Swansea Crown Court up held the Magistrates Courts decision on appeal. Lord Justice Elias and Mr Justice David Clarke of the High Court of Justice Queens Bench Division Divisional Court upheld the decision by Swansea Crown Court. 
(c) Mr James appeal had two grounds the first ground was that the incidents that occurred on the 8th and 9th November could not be construed as a course of conduct. His argument being as it was Mrs Thomas who had contacted him it could not be a course of conduct as Mr James had not taken the positive action of seeking to contact the person allegedly harassed. The second ground for his appeal was whether the court was correct in law in concluding the appellant knew or ought to have known that his conduct amounted to harassment. 
The courts method of making a decision on the appellants first ground on whether the incidents that occurred on the 8th and 9th November could be construed as a course of conduct was to examine the relevant law and the wording of the PHA 1997. The relevant sections being
“S1 (1) A person must not pursue a course of conduct—
(a) Which amounts to harassment of another, and
(b) Which he knows or ought to know amounts to harassment of the other.” 
“S1 (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to 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.” 
“S7 (4) “Conduct” includes speech.” 
“S7 (2) References to harassing a person include alarming the person or causing the person distress.” 
Lord Justice Elias dismissed the appellant’s argument that there was no course of conduct on the 8th and 9th November as hopeless his decision being made on the wording of S7 (3) 
“A ‘course of conduct’ must involve-
(a) in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person.” 
He used cases such as Patel  1Cr App R 440 and the statement made by Latham LJ in Pratt v DPP “the issue is whether or not the incidents, however many there may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct.”  He also used a statement made by Mr Justice Schiemann in Lau v DPP “the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made”  . These statements were used to reinforce his decision that the evidence supported his conclusion that the appellant’s actions constituted a course of conduct by virtue of S7 (3) and the fact this had happened over a short period of time. He also rejected that the idea calls from the 8th and 9th November be excluded from the analysis of course of conduct on two points. The first being that the appellant was aware that Mrs Thomas would have to return his calls. The second being that if someone is constantly abusive to someone who is within their vicinity that could be capable of constituting a course of conduct, even if the victim chooses to be in that area. It might have a bearing on the question of whether there is harassment but not in whether there is a course of conduct.  It was his decision on his interpretation of S7 of PHA 1997 and the above points that the appellant’s actions on the 8th and 9th November did amount to a course of conduct and there was no error of law.
“Lord Justice Elias decision on the appellants second appeal ground was to state that it was immaterial whether the appellant did or did not know that his actions constituted a criminal offence of harassment. The test for harassment is set out in S2 (2), and it is whether a reasonable person in possession of the same information would think that the course of conduct amounted to what constitutes harassment. I have no doubt that a reasonable person would reach that conclusion and the answer to the second question also is that the court was entitled to reach the view that the criminal offence of harassment had been made out.”  On these points of Law the court decided that there was no substance to the appeal and it was rejected.
(d) From his commentary David Ormerod agrees with the court’s decision this can be seen in his statement he makes in the commentary “The court is therefore right, it is respectfully submitted, to conclude that the fact that V has freely contacted D does not prevent there being a course of conduct by D; it might affect whether that conduct would constitute harassment. In addition, that fact might be relied on by D in advancing a defence of reasonableness under S1 (3)(c).”  He also commentated on the mens reus of the crime and agreed with court’s decision on whether the court was correct in law in concluding the appellant knew or ought to have known that his conduct amounted to harassment, as he felt this argument in this case was hopeless. In my opinion the court’s decision was the correct one, on the first point a course of conduct should not depend on who contacted who. But what should be looked at when considering an act of harassment, is how many times this behaviour occurs within a time period. Also the alleged harassment has to be of a similar pattern. As all these points were obviously fulfilled in the James case it is easy to understand why the Judge came to the decision he did on this point. Where the final point of the appeal is concerned on whether the appellant knew or ought to have known that his conduct amounted harassment. In my opinion the judge’s decision was the correct one. For the judge to make any other decision than he did it would have meant him going against the spirit of the act, and reducing the effectiveness of the act in protecting those that needed it most which is the acts primary function. It would have meant changing the test from an objective test to a subjective test and the problems this would have caused this already having been considered and rejected in R v C (Sean Peter). As was stated in the Crim L.R.845 “This already broad and ill-defined summary offence certainly does not need magistrates entangling themselves as to whether the objectively determined harassment was reasonable because the person committing it had the very characteristic likely to make him commit it!” 
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