A hard Act for anyone to follow

In the light of the recently introduced Protection From Harassment Act 1997 and Part IV of the Family Law Act 1996, Samantha Dawson and Rachel Prior examine the wide range of options still available to practitioners advising victims of domestic violence and harassment. Samantha Dawson and Rachel Prior are both lawyers in the matrimonial team at Blake Lapthorn.

The range of remedies relating to domestic violence and harassment is so wide that it has two effects on busy practitioners: confusion and over-reliance on better-known remedies. The recently introduced Protection from Harassment Act 1997 and Part IV of the Family Law Act 1996 are likely to add to the confusion. Here we navigate the practitioner through the range of remedies – criminal and civil – now available.

New guidance from the Legal Aid Board (LAB) forces family law practitioners to consider what action the police can take under criminal law before advising their victim client to seek civil remedies.

The Harassment Act provides two criminal offences of harassment and a statutory tort of harassment. The two criminal offences are pursuant to s.4 (an indictable offence of fear of violence) and s.2 (a summary offence of harassment), in which criminal harassment is defined as a course of conduct which amounts to harass ment and which the perpetrator knows or ought to know amounts to harassment of the victim. Two incidences of harassment amount to a course of conduct. Each incidence does not have to be the same action, but the actions of the perpetrator must be sufficiently recent to one another to constitute a “course of conduct”.

The police can arrest without warrant, and on conviction the magistrates can also impose a restraining order. Clients who claim they are being ’harassed’ should call the police until a course of conduct is clearly established by a series of police attendances.

The pre-existing criminal offences of behaviour also remain in force, so the police can choose which offences to charge the perpetrator under.

Harassment remains an ill-defined act. Under s.5 of the Public Order Act 1986, harassment is an offence where threatening, abusive, insulting or disorderly behaviour or writing causes a victim “harassment, alarm or distress”.

S.4 (fear or provocation of violence) and s.4a (intentionally causing harassment, alarm and distress), and s.3 (affray) of the Public Order Act 1986 also provide criminal offences for acts of harassment or violence.

Malicious telephone calls are an offence under s.43 of the Telecommunications Act 1984, and indecent or offensive mail is an offence pursuant to s.1(1) of the Malicious Communications Act 1988.

Threats to kill constitute a criminal offence under s.16 of the Offences against the Person Act 1861. S.3a of the Bail Act 1976 gives the police powers to impose bail conditions such as non-association with the victim. All of these stages may involve the abuser’s removal from the joint home or area in which it is situated. Breach of bail conditions can also lead to further arrest and remand in custody.

Where there is a threat to damage another’s property, or where the damage is done, the offence is provided by s.2 of the Criminal Damage Act 1971. The high criminal standards of proof required are problematic, as is the victim’s understandable reluctance to give evidence for the prosecution.

Further, the victim’s involvement is limited, and he or she may not be informed what bail conditions are imposed. Police involvement may also preclude legal aid funding for a victim’s use of civil remedies.

What, then, are the civil remedies in a case of harassment without molestation? Since Part IV of the Family Law Act 1996 (FLA), applicants for non-molestation injunctions can be divided into two categories: “associated persons” and everyone else.

Associated persons are, to varying degrees, well protected. The FLA codifies much of what was previously covered by common law and a multiplicity of acts, and simplifies matters by allowing family courts at every level to exercise the same jurisdiction and procedure.

The remedies offered are now available to a wider class of people: former spouses, former cohabitants and people who are or have been living together in a gay relationship.

The jurisdiction is more flexible, allowing orders to be made in any family proceedings whether or not application has been made, and provides greater protection by imposing a prima facie duty on the court to attach a power of arrest.

The usual practice of accepting undertakings is likely to diminish, and be replaced by agreed orders with no findings of fact. The court can then discharge its duty to attach a power of arrest, which it is still unable to attach to an undertaking.

The advantages of being an associated person include: no requirement to establish a substantive cause of action; both ex parte and inter partes the remedies are clear and easily available; the criteria the court must consider are clearly defined and give the court a wide and flexible discretion. The aim of the Act – to give victims fast, easy access to protection from domestic violence – will by and large be achieved.

But the FLA draws an uneasy line between those deserving protection and those apparently not. What of the girl needing protection from her boyfriend or the lone woman pestered by the stalker? The Harassment Act is intended to protect these people, so why impose an artificial distinction that creates complexity?

S.3 of the Harassment Act creates a statutory tort of harassment. The definition of harassment is the same as the s.1 criminal offence, but under s.3 the victim applies for a civil injunction, an application that can be made on either actual or apprehended harassment.

Future case law will define conduct amounting to harassment and the threshold required to prevent apprehended (rather than actual) harassment. Until then the definition is so unclear most practitioners will avoid it. Anecdotal evidence suggests the Legal Aid Board is reluctant to grant legal aid. But the advantage of using this remedy is the availability of damages as well as an injunction.

If an applicant is unable to find protection in the FLA or the Harassment Act (say, if she is not an associated person and a course of conduct has not been established), the courts’ inherent jurisdiction under s.37 of the Supreme Court Act 1981 and s.38 County Courts Act 1984 may remain an option. But the applicant must find a substantive cause of action upon which to base an application for an injunction. The victim will probably frame the action in trespass to the person or nuisance, but this is usually a cumbersome, expensive legal device for pursuing a theoretical claim for damages, when in fact an injunction is sought.

Many people are still left out: the victim of molestation falling short of trespass; victims who do not have a legal interest in land entitling them to protection from nuisance. The principle in Wilkinson v Downton is a recognised tort, but would the Legal Aid Board be willing to grant assistance in such cases?

The type of order is also a difficult issue. In theory the court’s discretion is unlimited: it may restrain the threat and use of violence, and may restrain the defendant from harassing the applicant.

Since Burris v Azadani it is clear that an exclusion zone may be imposed, but the court’s inability to attach a power of arrest weakens the effectiveness of these orders. Further, because magistrates have no jurisdiction, the victim is faced with the inflated costs of the County or even High Court.

Any person in fear of a breach of the peace can apply under the Justices of the Peace Act to have the defendant bound over to be of good behaviour. If there is molestation in breach, the victim can apply under s.120 of the Magistrates Court Act 1980 to compel payment of a financial penalty, or to s.63(3) for committal.

Clients who have suffered personal injury should also be given advice on claiming compensation under civil procedure or through the Criminal Injuries Compensation Board.

A victim seeking to exclude the aggressor from the home must now proceed under the FLA, which provides occupation orders. These are available to the relatively wide ’associated persons’ category, but beware the complexities of this part of the FLA, caused by a number of difficult distinctions.

One is between “entitled” and “non-entitled” applicants. Entitled applicants (those with rights in the property) may apply against any person with whom they are associated. Non-entitled applicants may only apply against a spouse, former spouse, cohabitant or former cohabitant. Where the parties were never married the court must take that fact into account when exercising its discretion. So, even now, unmarried women are not entitled to the same degree of protection from violence as married women.

The distinction further allows the possibility of, for instance, a non-entitled unmarried mother being unable to oust her violent adult child from the home, while a married mother (even one who has no legal interest in the property but who is ’entitled’ by virtue of her matrimonial home rights) may do so.

Where the parties are, or have been, married, the court has a duty to make an order if the spouse or any relevant child is at risk of significant harm. The unmarried victim, however, must throw herself on the mercy of the court’s discretion. She is in no worse a position than she was before the FLA, why should she not receive the improved protection afforded by the FLA to women who have “given the commitment involved in marriage”?

The FLA has, however, addressed some of the problems inherent in the old remedies: it works in the previously problematic cases where spouses had obtained decree absolute but had not sold or transferred the former matrimonial home.

So while the FLA goes some way to clearing up the number of options available, in practice much confusion remains.