Harassment

Question 1

What act covers harassment?

Answer 1

Protection from Harassment Act 1997

Provides that every individual has a right to be free from harassment, and creates a delictual action to protect that right.

Question 2

What are the steps to harassment?

Answer 2

1) Did the defender embark on a course of conduct?
2) Did that course of conduct have the effect of harassing the pursuer?
3) Did the defender intend for that course of conduct to harass the pursuer, or was that course of conduct objectively harassing?
4 Does the defender have a valid defence?
5) What remedy should the pursuer claim?

Question 3

Step 1 - Course of conduct

Answer 3

Section 8 - Must be established that they pursued a course of conduct, which most have happened on at least two occasions

Question 4

Step 2 - Effect of harassing

Answer 4

Harassment is not clearly defined within the 1997 Act, but s. 8 specifies it includes causing P ‘alarm or distress’.

Even if conduct was not directly aimed at the pursuer, it will still amount to harassment if it was targeted at a third party, and it was foreseeable that harassment of that third party could directly affect the pursuer.

Question 5

Majrowski v Guy’s and St’ Thomas’s NHS trust

Answer 5

“Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable … the gravity of the misconduct must be of an order which would sustain criminal liability.”

Question 6

Step 3 - Intention or Objectivity

Answer 6

Section 8(1) provides that while P can try prove the subjective, harassing intention of the defender, they can also simply establish that the contact was objectively harassing.

This means the reasonable person would consider the conduct to amount to harassment to the pursuer, because of oppressive or unacceptable behaviour.

Question 7

Step 4 - Defences

Answer 7

Section 8(4):
- Authorised by law
- For the purposes of crime prevention/detection
- Reasonable in the circumstances

Question 8

Step 5 - Remedies

Answer 8

Section 8(5) says the court may:
* award damages (including anxiety and any resulting financial loss)
* grant interdict or interim interdict
* non-harassment order (breach of which is a criminal offence)

Cannot have both interdict and non-harassment order at the same time