Harassment is a recognised criminal offence in England and Wales. While it may be considered less severe than related offences like physical or sexual assault, it can still come with serious penalties if you are convicted. It can be useful to understand the legal context of harassment if you are suspected of (or charged with) an offence, as the definition is broader than you might expect. In fact, there are several types of harassment that may result in criminal charges, including stalking, sexual harassment, unwanted physical conduct and trolling or online harassment.

More serious forms of harassment can lead to harsher penalties, and particularly if the victim was targeted on the basis of protected characteristics. Under the Equality Act 2010, there are nine protected characteristics relating to a person's disability status, ethnic group, gender, religious group and more. Derogatory or stereotypical remarks made on the basis of these protected characteristics (such as racist jokes) may lead to much more significant penalties.

There are several possible defences to a charge of harassment, and mitigating factors may be presented that could reduce your sentence. Working with an experienced defence solicitor can make a big difference to your chances of a positive outcome and the sentence you receive for a conviction. Here, the criminal defence team at JMW breaks down the harassment offences in England and Wales and the defences you may be able to rely upon.

What Is Harassment in England and Wales?

Harassment is most commonly prosecuted under the Protection from Harassment Act 1997, though other legislation can apply in certain circumstances. This legislation makes it an offence to pursue a course of conduct that amounts to harassment, which is defined as any behaviour that causes or intends to cause alarm or distress, or that a reasonable person would expect to cause this. A course of conduct means there must be at least two occasions of unwanted behaviour, though they do not need to be identical.

A person commits the offence if they know or ought to know that their behaviour amounts to harassment. The test for whether or not a defendant ought to have known is objective - if a reasonable person in possession of the same information would realise that the conduct amounts to harassment, liability arises.

Harassment is not confined to physical intimidation. It can take verbal, written, online or non-verbal forms, and include any attempt to create an intimidating, hostile, degrading, humiliating or offensive environment. Everything from jokes, to comments of a sexual nature, to unwanted sexual advances or physical intimidation in someone's personal space may constitute harassment under the law.

What Are the Other Harassment Offences?

The law also recognises more severe forms of harassment, and aggravating factors such as discrimination on the basis of protected characteristics. Such behaviour can lead to one of the charges below, any of which may result in a more serious penalty than harassment alone.

• Stalking: This is a specific offence that involves harassment with elements such as following someone, repeatedly contacting them, monitoring their online activity or watching their movements. On summary conviction, the maximum sentence is 51 weeks’ imprisonment, a fine or both. On indictment in the Crown Court, the penalty can rise to five years’ imprisonment, a fine or both.
• Putting people in fear of violence: This escalated form of harassment applies when a victim fears violence will be used against them. This aggravated offence can carry a prison term of up to ten years if tried on indictment.
• Stalking causing fear of violence or serious alarm or distress: This applies where the conduct is particularly harmful, placing the victim in fear of violence or causing serious psychological impact.

Aggravated offences carry heavier penalties to reflect the severity of the conduct. Targeting someone based on the protected characteristics under the Equality Act 2010 is a strong aggravating factor that is often considered during sentencing. Judges must treat hostility based on a protected characteristic as an aggravating factor and impose a more severe sentence than they would otherwise.

The characteristics in question include:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race and national origin
• Religion or belief
• Sex
• Sexual orientation

Even where harassment is not charged as a specific “racially or religiously aggravated offence” under the Crime and Disorder Act 1998, behaviour motivated by a person being gay or belonging to a different ethnic group can be raised as an aggravating factor, if the defendant's hostility towards the protected characteristic is proven.