Being accused of harassment can come as a shock, particularly if you did not know your contact was unwelcome or the allegation gives an incomplete account of what happened. Your instinct may be to contact the person involved to explain yourself or resolve matters. However, further contact could become part of the evidence. Preserve your messages and other communications, and seek legal advice before responding to the allegation.
This article explains what amounts to criminal harassment, what to do if the police ask you to attend an interview and how an allegation can be defended. It also considers why the full history of communication matters and how mental health evidence may affect decisions about a case.
What is the criminal offence of harassment?
The principal harassment offences are contained in the Protection from Harassment Act 1997. A person must not pursue a course of conduct which amounts to harassment of another person and which they know, or ought to know, amounts to harassment.
Harassment can include behaviour that causes alarm or distress. A course of conduct must involve behaviour on at least two occasions, although it does not have to involve exactly the same behaviour each time. However, two messages or two instances of contact do not automatically mean that a harassment offence has been committed.
For example, an allegation could concern a combination of messages, telephone calls, face-to-face contact and online activity. The question is whether those incidents, considered together, establish the necessary course of conduct.
There can also be uncertainty about whether the behaviour crosses the threshold for criminal harassment. Case law establishes that conduct must go beyond being merely unreasonable and unattractive before it attracts criminal liability. Although the law includes an objective test, in practice the police must exercise judgement when deciding whether that threshold has been crossed. This is an important area for defence representations, examining the behaviour in its full context and challenging whether the evidence supports the police’s assessment.
Stop contacting the person who has accused you
If someone has made it clear that they do not want you to contact them, continuing to message or approach them can make your position significantly more difficult.
This includes indirect contact, such as asking a friend to pass on a message, creating another social media account or using a different telephone number.
There can be more complicated situations following a relationship breakdown where some communication appears necessary because there are children, property or financial matters to resolve. Depending on the circumstances, it may be appropriate for communication to take place in a different way or through another person.
You should take advice rather than assuming that a legitimate reason for wanting to communicate means that repeated direct contact is appropriate.
Do not delete messages or social media evidence
An allegation of harassment can depend heavily on context. A screenshot showing several messages sent by one person can look very different when compared with a complete conversation showing communication in both directions. Equally, a conversation that initially appears mutual may change once one person clearly asks the other to stop contacting them.
In practice, we will often want to establish the complete chronology, i.e. when contact took place, what prompted it, how the other person responded and whether and when they made it clear that further contact was unwanted.
Do not delete WhatsApp conversations, text messages, emails, call records or social media activity because you are concerned about how they might look. You should preserve the complete material so that your solicitor can assess it in context.
What if the police ask me to attend a voluntary interview?
A voluntary police interview is still an interview under caution. What you say can become evidence even though you have not been arrested.
People sometimes assume that because they know they did not intend to harass somebody, the best approach is simply to attend the police station and explain everything. However, hearing the allegation in detail for the first time can be a shock. You may be blindsided by the way events have been described, the incidents included or the interpretation placed on your messages.
Trying to respond immediately, while surprised or distressed, can make it difficult to give a clear and considered account. Harassment allegations often involve communications or incidents spanning weeks or months, which you may need time to recall and examine in context.
This is why it is essential to instruct a solicitor to obtain disclosure from the police before any interview. Although the police may not disclose all their evidence at that stage, your solicitor can seek details of the allegation, discuss them with you privately and consider the wider history and any evidence you have preserved before advising you on your response.
You are entitled to free independent legal advice at a police interview. A criminal defence solicitor can help you understand the allegation and carefully consider how to respond before questioning begins.
What if there is another explanation for the contact?
Harassment cases can be highly fact-specific. A complainant may say that contact was persistent and unwanted, while the person accused may say that conversations continued in both directions. There may be disagreement about when a relationship ended, whether contact was invited or why particular messages were sent.
That does not mean an allegation should be dismissed because there are two different accounts. Equally, an accusation does not establish that a criminal offence has been committed.
We look at the complete chronology rather than individual messages in isolation. This may include whether communication was mutual, when the complainant asked for contact to stop and what happened afterwards. Call records, messages, CCTV, social media activity and witness evidence may provide additional context.
What happened after someone was clearly told that contact was unwanted can be particularly important. Continuing to make contact after that point may place earlier communications in a different context.
What if my mental health affected my behaviour?
We often see cases where a person’s mental health was a key factor in explaining their behaviour. A mental health condition does not automatically provide a defence to harassment. The law does not require a person to intend to cause harassment: it also considers whether a reasonable person with the same information would have recognised that the conduct amounted to harassment.
However, medical evidence may be highly relevant to whether a prosecution is in the public interest. In some cases, it may support an out-of-court disposal, such as a caution, subject to the requirements for that disposal. Evidence about treatment and the risk of further behaviour may also be important.
On the other hand, a criminal restraining order requires criminal proceedings and can be made following conviction or acquittal. If the police or CPS believe that such an order is needed for safeguarding purposes, that may weigh in favour of prosecution. Other protective orders may be available without a prosecution, including civil injunctions and, in stalking cases, stalking protection orders.
Medical evidence may also be relevant to your ability to participate effectively in a police interview or proceedings and, depending on the circumstances, how the case is dealt with.
Do not assume that the police will already have access to relevant medical information.
Can a harassment allegation be defended?
Yes; the appropriate defence will depend on what is alleged and the evidence available. In many cases, the core evidence may be disputed, for example what words were spoken or whether events occurred as alleged.
There are some situations where conduct that might otherwise appear to be harassment may have a lawful explanation. For example, there may be a defence if the contact was necessary to prevent or detect a crime, was required by law, or was reasonable in the circumstances. Whether any of these defences applies will depend on the facts of the individual case.
Other cases may turn on whether there was a course of conduct at all. A substantial gap between instances of contact or a lack of connection between the events may be relevant to whether they form a course of conduct.
There may also be a dispute about whether the behaviour legally amounted to harassment or whether you knew, or ought to have known, that it did.
This is why the evidence surrounding the allegation can be so important. The issue is usually about more than how many messages were sent. The content, timing, circumstances and wider course of communication may all need to be considered.
What should I do if I have been accused of harassment?
Do not assume that an allegation will disappear if you explain yourself directly to the complainant. You should avoid further unnecessary contact and preserve the evidence you already have.
If the police contact you, it is important that you obtain legal advice before attending an interview or providing an account.
Our criminal defence solicitors can examine the allegation and available evidence, advise you before a police interview and represent you if you are charged with a harassment offence.
Early advice can also help you understand what you should and should not do while an investigation is ongoing, particularly where there are continuing practical reasons why you and the complainant may otherwise need to communicate.
About the author
Kate Macnab is a Senior Associate and Solicitor at Reeds Solicitors with 30 years’ experience in criminal defence. She advises and represents clients accused of harassment, including allegations arising from relationship breakdowns, from police interview and pre-charge representations through to trial in the Magistrates’ Court.
For immediate confidential assistance, contact our specialist defence solicitors by calling 0333 240 7373 or email [email protected]
