APPENDICES
pursuant to s1(3)(a) of the Obscene Publications Act 1964 (which is a separate offence) the law provides a similar defence, namely that the person had no reasonable cause to suspect that it was such that having it would make them liable.
¶5.114 Section 4 sets out a defence of public good, namely where the publication of the article
is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. Whilst the publishers' intentions, namely whether the publication was intended to educate or corrupt, are not relevant to the offence itself (which looks simply at the effect of the publication), they will be relevant to a public good defence.
¶5.115 The maximum penalty on indictment is five years' imprisonment, a fine, or both; or six months' imprisonment or a fine not exceeding the statutory maximum or both summarily.
¶The Children and Young Persons (Harmful Publications) Act 1955 5.116 The publication of material harmful to children and young persons is rendered an offence
pursuant to s2 of the Children and Young Persons (Harmful Publications) Act 1955 and this applies to any book, magazine or other like work which is of a kind likely to fall into the hands of children or young persons and consists wholly or mainly of stories told in picture portraying the commission of crime, acts of violence or cruelty or incidents of a repulsive or horrible nature in such a way that the work as a whole would tend to corrupt a child or young person into whose hands it might fall.
¶5.117 The Protection of Children Act 1978 and the Criminal Justice Act 1988 also establish offences relating to the making, possession, publication and distribution of indecent images of children.
¶Protection from Harassment Act 1997 5.118 Section 2 of the Protection from Harassment Act 1997 creates an offence when a person
pursues a course of conduct which amounts to harassment of another and which they know or ought to know amounts to harassment of the other. Harassment is an arrestable offence, so that the police can apprehend a person whom they have reasonable grounds to believe has committed it. The victim can also bring civil proceedings, including applying for an injunction restraining a person from acting in a manner which constitutes harassment. If the victim considers that the harasser has engaged in conduct prohibited by the injunction, a power of arrest may be attached to the injunction, breach of which without reasonable excuse is a criminal offence.519
¶5.119 Harassment is defined in s7 as including alarming the person or causing the person distress.
A course of conduct must require conduct on a least two occasions, either in relation to one person or one occasion each in relation to two or more persons. It has been held that publication of press article is in law capable of amounting to harassment: Thomas v News Group Newspapers Ltd.520 It was common ground before the court in that case that there must be some exceptional circumstances which justify sanctions and the restriction on the freedom of expression before publications are capable of amounting to harassment.
¶5.120 In the context of a civil claim for harassment pursuant to the PHA 1997, the courts have interpreted Thomas in the following way. For the court to comply with s3 HRA, it must hold
1947¶Appendix 4 | Legal Materials
that a course of conduct in the form of journalistic speech is reasonable under PHA s1(3)(c) unless, in the particular circumstances of the case, the course of conduct is so unreasonable that it is necessary (in the sense of a pressing social need) and proportionate to prohibit or sanction the speech in pursuit of one of the aims listed in Art 10(2), including, in particular, the protection of the rights of others under Art 8.521
¶5.121 It is not only publication itself but news gathering activities which may be caught by s2. For
example, the attention and investigations of unwelcome reporters and photographers may amount to distress and constitute harassment under the Act.
¶5.122 The powers in the PHA 1997 were increased by the Criminal Justice and Police Act 2001 and
the Serious Organised Crime and Police Act 2005. Section 42 of the 2001 Act gives the police powers to give directions to stop harassment of a person in their home, for example where there is a scrum of reporters and film crew outside a person's home. Such directions can be to go away, and to stay away for up to three months. It is an offence to act outside a person's home in a way which will cause harassment, alarm or distress to a resident or neighbour, for the purpose of persuading a person to do something they are not under any obligation to do, or to do something which they are not entitled or required to do (see s42A). SOCA added a new offence to the PHA 1997, involving harassment by two or more persons which is intended to persuade the victim either to do something which they are not obliged to do, or not to do something they are entitled to do, s1(1A).
¶Public Order Act 1986 5.123 Section 4A, inserted into the Public Order Act 1986 in 1994, provides that:
"A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he... (b) displays any writing, ... which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress".
¶5.124 In contrast to the PHA, the Public Order Act requires intent to cause harassment, alarm or
distress. It has been held that where a person posts an image of another on a website that is available to the public, the fact that the subject is unaware of it until shown it by a third party does not break the chain of causation, and it would also be immaterial that if at the time the harassment, alarm or distress was caused the mage was no longer displayed on the website.522
¶5.125 Section 5 provides for a similar type of offence but does not require intent to cause harassment,
alarm or distress. This section prohibits the display of: "any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".
¶5.126 The relationship between s5 and Article 10 of the ECHR was summarised as follows: i)
1948the starting point is the right to freedom of expression, iii) that right must extend beyond protecting people who hold popular, mainstream views so that minority views can be freely expressed even if distasteful or offensive to some, and iii) the restrictions in Art 10(2) need to be narrowly construed and the justification for invoking the criminal law is the threat to