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12 November 2018

How to challenge Harassment Warnings

6 mins

Harassment Warnings, sometimes known as Harassment Warning Notices or First Instance Harassment Warnings are used by the police as an ‘administrative’ means of dealing with allegations of harassment made by a complainant. They have no statutory basis; there is no formal police procedure that must be followed, no appeal procedure, and no limit on the period for which they have effect. Harassment Warnings are sometimes used inappropriately by police as an alternative to investigation or in a misguided attempt to stop a disagreement from escalating. 

In response to objections from recipients of Harassment Warnings, the police often repeat the line that Harassment Warnings are merely an ‘administrative measure’ and the fact that a Harassment Warning has been issued is not an acceptance by the police that the allegedly harassing behaviour, in fact, took place. This is a disingenuous statement: Harassment Warnings (and police records) refer to the complainant as the ‘victim’, describe the allegedly harassing behaviour and warn the recipient that if the behaviour is repeated they could be prosecuted. Further, the issuing of a Harassment Warning has potentially serious implications: they are potentially disclosable on enhanced criminal record certificates (also known as Disclosure and Barring Service certificates or DBS certificates). 

Whilst there is no basis in the statute for Harassment Warnings, there is national guidance which should be followed (unless there is a good reason not to) and sometimes police forces also have their own rules on issuing Harassment Warnings. The national guidance states that Harassment Warnings are unlikely to be appropriate in certain circumstances, such as where a dispute is between neighbours or in an entrenched dispute between two people. Harassment Warnings are also not appropriate where the person complained about denies the behaviour and there are no reasonable grounds to support or corroborate the allegation, or where the alleged conduct even if repeated could not amount to harassment under the Protection from Harassment Act.

In recent years we have noticed an increase in Harassment Warnings being issued in relation to social media postings, even where the complainant is not referred to at all in the posting (for example, a woman making reference to an abusive ex-partner — without naming him — in a Facebook post about domestic violence). The police’s involvement in such matters raises concerns about freedom of expression (which is protected by Article 10 of the European Convention on Human Rights). We have also seen a very worrying pattern of the police being ‘weaponised’ by abusive former (male) partners of our clients, who apparently encourage new partners to make allegations of harassment against their previous partner. We have succeeded in challenging Harassment Warnings in such cases, but the mental anguish caused to the recipients in the interim is extremely unfortunate and completely avoidable.

In making decisions to issue Harassment Warnings the police must follow any applicable guidance (unless there is good reason not to do so). The reasons given by the police for issuing the Harassment Warning must be rational, and their decision making must also comply with human rights law (Article 8 and sometimes Article 10 of the European Convention on Human Rights).

As with other matters of discretion in connection with the law enforcement duties of police, the courts are generally slow to interfere with a decision to issue a Harassment Warning. Consequently, there are very few reported legal challenges in Harassment Warning cases, and those that exist are not particularly encouraging for people who have received Harassment Warnings. However, there are some important points of comfort in these judgments.

The case of T (whom we represented) went all the way to the Supreme Court, with their judgment being handed down at the beginning of 2015. In that case the Harassment Warning had been issued in the context of a neighbour dispute where both parties alleged bad behaviour against the other. By the time the case reached the Supreme Court the arguments were focused upon the continuing retention of the Harassment Warning on T’s police records, and not on the lawfulness of the decision to issue it in the first place (which happend in 2010). By this time the police had also agreed to delete the Harassment Warning (2.5 years after it was issued). 

In this context the Supreme Court was of the view that it is not unlawful for the police to adopt a standard practice of retaining such information for several years, provided that its policy is flexible enough to allow it to be deleted when retention no longer serves any useful policing purposes — as in fact happened in this case. The Supreme Court decided that the retention of the Harassment Warning for 2.5 years was proportionate (although 2.5 years was at the far end of the spectrum of what was an acceptable retention period), particularly because retaining information about previous harassment complaints serves a vital policing purpose, particularly in domestic abuse cases where such records might assist a conviction. The Supreme Court did, however, also criticise the “unnecessarily accusatorial” nature of the Harassment Warning that was issued to T.

The case of Hewson is more recent (2018) and concerned a public dispute on social media between two people which turned sour. The complainant complained to the police about tweets describing her as a ‘malicious crackpot’, ‘unhinged’, ‘evil’, ‘dodgy’, ‘mischievous, manipulative and wrong’. The police issued a Harassment Warning to the person who had sent the offending tweets which she then sought to challenge in court. Unsurprisingly, given the content of the tweets, the legal challenge failed; the court found that the decision to issue the Harassment Warning had been proportionate in the circumstances of the case. But the outcome in that case was specific to the facts – the fact that this case failed does not mean that Harassment Warnings cannot be challenged.

If you have received a Harassment Warning which you believe was improperly issued to you, you should take immediate steps to seek legal advice. It extremely important that legal challenges are instigated as soon as possible after the Harassment Warning was issued (and no later than three months after the Harassment Warning was issued).  

We have succeeded in persuading the police to withdraw Harassment Warnings in many cases. 

Please get in touch if you would like more information.

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