Saturday, 28 January 2012

Harassment Laws & Free Speech

This is a short opinion piece on the end of free speech and why I believe that the current interpretation of the laws governing how people conduct themselves is completely wrong. I know because I'm on the end of what I perceive is a miscarriage of justice or, at the very least, an abuse of police power in terms of how they investigate allegations of harassment.

Free speech is a very strange thing to quantify. Is it something which needs restricting for fear of causing offence? Is it the way in which something is said? Can it be made worse by the way in which the information is presented or distributed? I argue that in the last instance, free speech is very easy to close down and without anyone knowing about it.

But what is free speech as a principle? Let's start with the HRA 1998.

Human Rights

Article 19 of the Universal Declaration of Human Rights states:

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Using this rule alone, discounting all laws in any other country, people would be allowed to distribute child pornography. No rational person would ever reasonably suggest that Article 19 should not be subject to a limitation. For example, a person seeking to distribute or receive child pornography could well say that their "free speech" rights are being denied were an authority to intervene in this information exchange. This does not mean that there is not a legitimate reason for this denial subject to the laws the authority is invested with upholding. There could well be a society which decides the dissemination of child pornography was a legitimate activity. On those lines Article 19 would be a true beacon for the "anything goes" crowd. But thankfully we do not live in a society which finds child pornography acceptable.

As a general principle then, free speech is the right to hold and impart information free from authority except where that information creates a criminal liability or civil tort. That is, people can still impart information that could be considered criminal but should expect to face a sanction if an authority hears about it.

The Right of Privacy & criticism of public figures

This is something quite contentious in view of the Leveson Inquiry and I might come under a little fire for suggesting that not everyone has an automatic right to privacy. Individuals leading private lives should be protected for that position where their private life does not become "overtly public". But what does this mean? Well I think it means someone who deliberately opens up a part of their life for public consumption or commits a crime against the state.

I concede that this is not a perfect argument.

For example, a person could win the lottery. This is newsworthy but the actual "win" is accidental in the sense that the mathematics are staggeringly high. No-one really expects to win the lottery. They therefore have a right to decide whether to make this public despite deliberately taking a course of action which would potentially lead to a newsworthy event. A counter example is a person who accidentally crashes into another car through losing concentration and commits manslaughter. This is a crime against the state but they did not set out to deliberately make their actions worthy of public consumption. Nevertheless they do not have the right to decide whether this information becomes public consumption.

The Right of Privacy tends to be relaxed to some extent when it comes to the discussion of public figures or, rather, there is more leniency. There is a general expectation that should someone private suddenly become more "public" that they have given up some right of privacy. I have conducted some research into this and my conclusion is that this should relate mainly to the activity in which that person has become a public figure in.

If a footballer has a crap game, I would expect a reporter to write about that. I would not expect a reporter to comment on the player's crap game and then follow his comments with a diatribe on the player's personal life unless it was reasonably judged to be affecting his performance. For example player A plays crap on a Saturday but was photographed falling out of a pub the previous Friday night. At the same time, a player who takes his child swimming on a Friday afternoon and then plays crap on a Saturday should not face the same accusation because he has a right to a family life. I think, were the situation tested reasonably, this would be a logical position to take.

Similarly if an author writes a book they should be judged on their work. If they write their own reviews they end up suffering the fate of having their conduct evaluated. The most prominent case which comes to mind is that of Orlando Figes who trashed his rival authors using fake accounts. When rumbled he claimed it was his wife who wrote them before finally conceding it was him all along. That he is a prominent Professor in the field of History and employed at the UCL makes the tale even more woeful. But he has received his criticism and whilst initially reacting badly to the issue, by threatening legal proceedings via a law firm, he has gone back to his day job and is producing good work again. There was no need for his tale to be prolonged of course. The media did what was proportionate at the time. The issue is now, for the time, forgotten. News moves on quickly to the next headline.

But Professor Figes brought it upon himself with his actions. He deserved the criticism not just because he had set up those fake accounts but also because he was in the public eye and expected to behave himself in his chosen field.

Harassment Laws, Abuse of:

If I said that we are heading into a police state where freedom of speech is concerned I would be denounced as a crank by people who think that the term "police state" is synonymous with any flavour of conspiracy theory you like to think of.

What I shall do is present some evidence I have found and then let people judge for themselves.

The Protection from Harassment Act 1997 (PHA 1997) exists as a bulwark to unwanted intrusion into people's private lives. The law states:

1 Prohibition of harassment.

(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.


The problem is that people can find themselves on the end of this law should they be subject to a complaint from any person who argues that they are being harassed. I do not have a problem with people complaining that they are harassed. Far from it.

What I do have a problem with is how this law has been interpreted and the wide range of police powers that can be used to cause people accused of harassment a significant deal of harm.

The Current Situation (a case scenario)

Mr A complains to the police about Mr B because he alleges that he is being harassed. The dispute is over a garden fence being in the wrong place. Mr B has been writing letters asking Mr A to move the fence 4 inches so that when he comes to sell his house there is no problem with the border. Mr B expressed in his letters that he was unhappy with trees growing over into his property and that if they continued to do so, he would remove the offending branches himself.


Because Mr B was contacting Mr A by letter, the police can issue something called a Police Information Notice. It's official title is a Prevention of Harassment Letter: Form 9993 and it looks like this:


Form 9993

Mr A felt under threat because he received 3 letters in the course of 4 months. Mr B felt his conduct was reasonable because he was trying to sell his house and needed a resolution without going to court to settle the matter which would have been expensive for both parties. As a means of resolution, the letters were the best option because they were not on speaking terms.

However, because of the complaint the police were able to dispose of the complaint quickly, efficiently and, in what seems to be a complete contravention of the rule of innocent until proven guilty we expect in a civilised society, are able to issue this form and record information which affects Mr B for a minimum of 7 years.

The border dispute was eventually settled between Mr A and Mr B via court action. Mr B won his case and it cost them both around £3000. But Mr B won because the dispute was obvious. He moved house and thought he had moved on.

However, Mr B is a teacher of English. He needs to complete an enhanced CRB every 2 years. It comes up for renewal months after he has moved house. The headteacher of the school he works at asks him into the office to discuss his CRB. The headteacher points out that there is information which has been added to the CRB stating that he was given an official warning. The content simply states that Mr B was sending letters of harassment and was given a warning. The headteacher was unhappy that Mr B, being a teacher of English, could allow himself to be compromised despite a perfect record at the school. His explanation is accepted but the information is leaked to the rest of the school staff accidentally. Mr B feels under constant scrutiny to prove himself and cannot focus on his job because of the gossip. He eventually leaves his job, unable to cope with the pressure.

He feels like a criminal. He feels branded. He feels like there has been a miscarriage of justice. The complaint details and the associated paperwork will be retained for 7 years. But the information will remain on his record until he reaches 100 years of age. Any future careers involving the need for an Enhanced CRB will automatically flag this information and he will need to explain it time and time again.

This is a case scenario. But it has happened. It is based in reality. All I have changed is the profession of Mr B.

I have not included details of the police investigation. That's because there was none. There never needed to be any under the legislation (or rather, the interpretation of the legislation). And I shall explain why.
Interpretation & Guidance

The guidance for police officers when investigating claims of harassment is found here and the CPS have also published some information which is quite useful to the layman.

A most effective tool

Tool is the wrong word perhaps?. Weapon is far more accurate I think but this sounds a little too aggressive. In any event using the police to close down free speech is a very effective method with documents like Form 9993 at their disposal. There does not need to be an admission of guilt. There does not need to be a thorough investigation. There does not even need to be any concrete evidence that a person accused is actually guilty of any alleged crime.

Form 9993 exists only to warn a person that their conduct "might" be indicative of harassment. But it's effects on the person accused is chilling and it can have dire effects on that person's career, especially where an enhanced CRB is required.

The police is, in effect, Judge, Jury and Executioner. This is far too much power for one group of people. The CPS exist for a reason. They do not get everything right. But an harassment warning can be issued with perhaps one or two people deciding on that outcome.

I won't repeat the officers name but I was told on the phone that the harassment warning would not affect a person's chances of gaining a career in a certain area of employment. I doubt that this officer lives in the real world. If person X has a practically identical CV to person Y, and all other things were equal, but person X has this harassment warning on their record, who do you think would be most employable?

The argument from the officer was a terrible one which also offered me a glimpse into their world. The harassment warning exists only as a way to close down a crime report quickly and with some sort of tick in the box. The dismissive nature of the officer's aside that a person's career won't be affected was very arrogant and disregarded how information recorded by the police and then made available to employers has a real world impact on a person's life.

The other point that should be made on why it is an abuse of power is that an harassment warning cannot be appealed.

Conviction Rates - a worrying upward trend?

Since being introduced, convictions using section 2 of the PHA 1997 has seen a remarkable upward trend:




It's difficult to get information about how 9993 forms are issued, their number etc. But someone had a go over on the WhatDoTheyKnow website which handles Freedom of Information requests.


The horrible truth

The FOI request, responded to on the 23rd May 2011, contained some remarkable admissions by the officer in charge of collating the information. Here is just one:

"This form is issued in allegations of harassment that do not reach the evidential standards for charging."




So, in other words, someone can make a complaint about you of which can contain little to no evidence at all but this can be recorded on your CRB, disclosed to your employer (current or prospective), university or indeed anyone who requires an enhanced disclosure.

If I was questioned about any other crime (to my knowledge) that I am alleged to have taken part in but there is no evidence, or certainly not enough to secure a conviction, then that is the end of the matter. Nothing is recorded, nothing is disclosed and nothing is filed which impugns your character.

Form 9993 disposes with the notion that a persons is innocent until proven guilty. By recording the information and making it public, it is you who would have to explain it away for the rest of your life. You do not even need to be arrested. You cannot even appeal the decision.

Emma Norton of the Liberty Clinic wrote in the Guardian that:

"It has been suggested by some that harassment warnings are an all-too-convenient option for the police, as they require little or no investigation and can be dealt with quickly and cheaply and they have no awkward rights of appeal attached. If people are concerned about the circumstances in which they have been given a harassment warning, they should consider lodging a formal complaint and/or seeking prompt legal advice."

In other words, Form 9993 is the Happy Meal of Police powers; it's unfussy, pleasing to the profit makers, kids tend to accept one without questioning how it will affect them in the future and parents dole them out knowing they are full of crap. Form 9993 is doled out as a quick resolution to a police complaint allowing an officer to close down a case pleasing the powers above, people accept them because they do not know the full effects (because the Police do not have to explain what effect they may have) but they know full well the grief that they could potentially cause.

No right of appeal. 21st century Britain. And it has blurred the lines between civil and criminal complaints in a disheartening way.

Read this piece by George Monbiot http://www.guardian.co.uk/commentisfree/2009/feb/05/anti-stalking-liberty-central. An extract reads:

"The law creates an offence of pursuing "a course of conduct which amounts to harassment of another". Harassment is defined as "alarming the person or causing the person distress". The act can be used to impose injunctions on people, criminalising their previously lawful activities. As the injunctions use civil law to create criminal offences, they require a much lower standard of proof: hearsay evidence and untested and unproven allegations can be used to criminalise any action the police or the courts wish to stop."

Why am I writing this?

I want to change this law or, rather, the interpretation of it. It is a draconian piece of legislation which passed through Parliament without any real thought it seems. There are genuine cases of harassment of which I am sure. But let's try a thought experiment.

Is it legal to create a website criticising an individual?

I think it should be. Should you harass an individual with this information you have written about them in direct messages and contacting their friends. family, journalists and MPs? I'm pretty sure that would amount to harassment. For if a website is created, no-one forces you to go there to look at it. It's like walking onto a knife that someone is holding. They are not murdering you for goodness sake. But contacting someone repeatedly with this information and then their friends etc is tantamount to infringing their private life and creating a genuine annoyance.

What about if someone sends you an email out of the blue on April Fool's Day? Is this harassment? No. It's not. What if you reply to this email in a civil manner? Is this harassment? No.

What about if you reply to that email in a civil manner on 3 occasions asking for more information about what was contained in the original email sent to you? Is this harassment?. No.


What about if you are ignored throughout the day and you finally reply with a sort of "fuck off" and leave me alone type response. Well bearing in mind you could have been subjected to an April Fool's Day prank then no. What about a sarcastic response?

This is not unreasonable and it cannot be harassment.

If you send someone an email threatening legal action, you should not be surprised if they tell you where to go but especially on April Fool's Day. In any event, a reply should not be considered harassment if you are responding to an unsolicited email.

It shouldn't be an offence to insult someone but the current legislation blurs this line between a civil and criminal act. This is not fair. It's not reasonable. It needs fighting.

Religion, criticism of

Another reason I am writing this is because it reflects on a person's ability to criticise religion. Martyn Saunders-Rawlings, a former member of Hastings and Bexhill Jewish Society, had protested against a council decision to lease a building to an evangelical group at a reduced rate and with an annual grant.

After writing two letters raising his objections to the building, he was given a Form 9993.

There is an imperative for this situation to be reversed. We do not know how many people have been given these warnings because they are recorded in a different way. And who wants to own up to having this on their record? More importantly, how many people know that this warning exists on their file waiting to be revealed?

Ideas

I would appreciate some ideas on how to change this situation. Lawful protest, in all forms, is mainly under threat. I'm thinking an online petition is a good way to highlight this issue or perhaps try and link with the Index on Censorship to see if we can come up with ways to drum up support.

Links

Here are some Freedom of Information requests, case law and other links which might be of interest:

ttp://www.met.police.uk/foi/pdfs/disclosure_2011/march/2011020001767.pdf

http://www.met.police.uk/foi/pdfs/disclosure_2010/december/2010110002478.pdf

http://en.wikipedia.org/wiki/R_%28on_the_application_of_L%29_v_Commissioner_of_Police_of_the_Metropolis

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/1999/732.html&query=

http://www.homeoffice.gov.uk/publications/about-us/consultations/police-powers/

http://www.hampshire.police.uk/NR/rdonlyres/1C97440D-2990-424B-B560-FD980F20CBD5/0/12901.pdf

4 comments:

  1. Truly shocking that something like this exists in our supposed democratic society.
    We have a court system for a reason, the police are not there to be able to effectively label someone with a criminal record despite no crime being committed.
    A truly frightening prospect, and one which should not be allowed to stand.
    I hope you fight this all the way - no way this should ever stand up in court.
    What happened to innocent until proven guilty.

    Maybe an idea is to get an e-petition, it looks like at least one other person has fallen foul of this ridiculous "law"

    http://epetitions.direct.gov.uk/petitions/14038

    ReplyDelete
    Replies
    1. Informative and worrying article.

      I did not know that police issued these warning forms or was aware of the possible implications. Quite shocking really.

      I have commented previously about free speech and harassment laws in relation to the civil courts. A point you mentioned above was the website set up to criticise someone or a group of people. One recent example is the 'Solicitors from Hell' website (a site which lists and criticises solicitors) where the Law Society got the High Court to order the closure of the site using libel AND harassment laws. The judge commented that even if every testimony about the solicitors listed on the website was true, the owner of the site was still pursuing a course of conduct which met the criteria for harassment. Perhaps when the Legal Ombudsman as planned starts publishing adverse decisions about law firms, the solicitors can sue them for harassment too? Perhaps those solicitors disciplined by the Solicitors Regulation Authority can do the same when the disciplinary findings are published on that website.

      Applying the same logic - if I set up a website about serial killers and criticised the Yorkshire Ripper on two occasions he could take out harassment proceedings against me. I predict that now most libel claimants seem to lose their cases in the High Court, they will simply use harassment laws instead to close down free speech. There have already been one or two cases since the Law Society judgement where this appears to have happened and judges just rubber stamp injunction applications.

      So, this week I have criticised a director of a listed company in which I hold shares, several times on a financial bulletin board for his dire performance which is likely to result in my shares being quite literally stolen from me. So should I go back and edit those posts now just in case he stumbles across the forum when brousing the internet and starts to feel 'harassed'?

      These laws are laughable - just like the libel laws. Regrettably I fear one law used to shut free speech is being replaced by another.

      Delete
  2. Hi there -- thanks for commenting on my blog. I won't publish it, as I don't want to get involved, but I really appreciate it. Congratulations on your win. A most bloggable exercise!

    ReplyDelete
  3. I am in similar situation where the council harassed me personally for 2 years with disturbing a leasehold property with their contractors every morning between 06.30 - 07.00hrs. After complaint I was eventually awarded 100 compensation after the first year but the council allowed it to continue for a further year with claim that if the contractors continued to arrive at their lock up before 08.00hrs it would be taken from them. This did not happen and it was requested that further evidence was needed. I did this in the form of a video to prove that the contractors where not only harassing us but using the storage lock up as a workshop. The police intervened when I video d, for evidence, them continually arriving at around 07.00hrs and was assaulted by one of their staff. They were eventually removed. Their staff would also slam doors and provocate again over a period of two years. On one occasion one of their staff was requested to stop slamming their doors right underneath our flat every morning at such times 07.15hrs, a response that she would report me for harassment. There were also instances where council contractors would turn up on site on Sundays, right outside our flat to attend a tenants hall and because we informed them that this was not acceptable on Sundays they informed that they would report us to the police for recording the instance.

    There were also instances where tenants children were damaging flower beds whilst mothers looked on with no prevention, so intervention to try and prevent the children from doing this was met with a torrent of abuse. We pay for these flower beds and it is criminal damage.

    However, we then had three council staff who in agreement with a Tenants Association would not occupy residents rooms as an office until it was decided. For weeks there was no reply to our TRA and before we knew it the council had moved their staff into our tenants rooms with their office staff. We put a notice on our TRA notice board to inform residents what had happened. A council staff member on the first day of arrival into the tenants rooms ripped down our notice. We then attempted to get the notice back and was informed who had done it, we had to bang on the new office door, that did not have a bell, to try and ask for the notice back. It was considered stolen so we reported them to the police and it was given a criminal number and progressed. Another sign was put up in replacement and again this was removed. We then put a sign up behind glass that was covered by a piece of paper by the council and we were told to take it down. I was warned by the council that if I personally did not remove the sign it would be considered harassment, as it mentioned names of council staff involved. It was a TRA committee agreement to keep the sign up not just mine.

    As a lecturer this 3339 will affect my life and it was issued on the basis of lies by the persons manager we reported to the police and in retaliation for not taking down a notice. To note that this same person who had removed our notice had previously lied in a formal complaints enquiry and was supported by her manager, the one who alleged harassment.

    The council individuals abuse their position to get the police to issue this, I too want the law changed, they served this without me being able to offer any evidence to the contrary, the police were sarcastic and belligerent, fortunately it was all recorded on video. I am in pursuit of a lawyer who will take this on if anyone culd recommend one, I did contact and was advised that there was no need to challenge but it is a point of principle. There is so much incompetence and abuse of position in the council that it needs exposing so that certain incompetent individuals are moved on.

    ReplyDelete