Bullying – the law and advice (UK)

(Reposted)

What is bullying?

‘Bullying’ is behaviour that makes someone feel intimidated, distressed or undermined. It is not a specified crime but Harassment is and bullying is in most cases harassment. 

Who is responsible under the law?

A child of 10 years old or over (England and Wales, in Scotland it is 12) is held responsible for their actions under criminal law. Children under 10 who break the law cannot be charged with committing a criminal offence. However, in England, Wales or N. Ireland they can be given a: Local Child Curfew or a Child Safety Order (under supervision of youth offending team). If the offence is serious care proceedings can apply and non- compliance with a curfew or child safety order can also lead to care proceedings. In some cases the parents can be held responsible. 

There is currently a bill before parliament to raise the age limit in England, Wales and N. Ireland to 12 years. 

It is no longer the case that a child of 10-14 has to understand the difference between right and wrong as that test (doli incapax) was abolished in 1998.

The school and Local Authority are also legally responsible for the bullying that takes place but unfortunately UK Courts have persistently refused to uphold the duty of care by finding against them. So, it is unlikely that you would succeed in prosecuting them civilly or criminally. 

What action can I take?

The first course of action is to speak to the school and to ask them to deal with the bullying. Some schools will do this well and the issues will be addressed however, many of them will not. You should put your concerns in writing but do not accept being dismissed with any excuses such as it is because your child won’t stand up for themselves. 

Record every incident of bullying including talking photographs of any injuries, recording your child crying or expressing fear, printing any online bullying so that you have a record of it and if possible obtaining information about witnesses who were present at the time. Keep careful notes, including dates and times of incidents.

No case can be brought without evidence that an offence has occurred. Evidence is your child’s statement, photographs, witness statements, your statement of seeing your child’s distress and copies of all documents involving complaints to the school about the behaviour. It is much easier to prosecute a case both criminally and civilly if you have solid evidence.

One form of evidence that is very useful is a recording of the bullies actually bullying your child. It is legal for a private individual to record a conversation and it does not contravene the Data Protection Act to do so provided that you do not then publish (distribute to third parties) the recording. You can use it as evidence for a Court case and for the Police. If you are to do this, then a small separate pocket recorder is better than a mobile telephone as the recording will be kept as evidence in a case. It is better if your child does not tell the bullies they have a recorder as that could provoke further bullying. In order to be useful as evidence the bully will need to be identified on the recording. They are unlikely to do this themselves but your child can say ‘Jane Smith stop hurting me’ and lack of refuting the name could be helpful. 

Criminal and Civil law that applies:

If your child has been threatened a case could be brought under the Public Order Act 1986.

4 Fear or provocation of violence.E+W

(1)A person is guilty of an offence if he— 

(a)uses towards another person threatening, abusive or insulting words or behaviour, or 

(b)distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting, 

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked. 

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling. 

(3)A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section. 

(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.

[F14A Intentional harassment, alarm or distress.E+W.(1)A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— .

(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or .

(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, .

thereby causing that or another person harassment, alarm or distress. 

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling. .

(3)It is a defence for the accused to prove— .

(a)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or .

(b)that his conduct was reasonable. .

(4)A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section. .

(5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.]

5 Harassment, alarm or distress.E+W.(1)A person is guilty of an offence if he— .

(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or .

(b)displays 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. 

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling. .

(3)It is a defence for the accused to prove— .

(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or .

(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or .

(c)that his conduct was reasonable. .

(4)A constable may arrest a person without warrant if— .

(a)he engages in offensive conduct which [F2a] constable warns him to stop, and .

(b)he engages in further offensive conduct immediately or shortly after the warning. .

(5)In subsection (4) “offensive conduct” means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature. .

(6)A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Successful prosecutions of bullies have been brought under this Act and custodial sentences applied. 

The Protection from Harassment Act 1997 is a very powerful Act that can be used by the Police to prosecute bullies and by the victim to take civil action for damages. It is always best to seek legal advice if you intend to do this civilly rather than through the Police, as it can be complex if you do not know how to take such action. However it is an excellent route if you have sufficient evidence. One basic point is that it requires more than one act of bullying to use this Act. It would be unlikely for the Police to proceed against a child with SEN for bullying but a Civil action requires a lower burden of proof so that could be possible. I would highly recommend Martyn Caplan 0161 833 0578. The Police should use this Act to prosecute a bully and they can use it. However, many officers do not understand the law well so you may have to be insistent and to point out that you require their support. 

Relevant clauses:

s1 Prohibition of harassment

(1) A person must not pursue a course of conduct-

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(1A) A person must not pursue a course of conduct –

(a) which involves harassment of two or more persons, and

(b) which he knows or ought to know involves harassment of those persons, and

(c) by which he intends to persuade any person (whether or not one of those mentioned above)-

(i) not to do something that he is entitled or required to do, or

(ii) to do something that he is not under any obligation to do

(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.

s2 Offence of harassment

(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

2A Offence of stalking

(1)A person is guilty of an offence if—

(a)the person pursues a course of conduct in breach of section 1(1), and

(b)the course of conduct amounts to stalking.

(2)For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person’s course of conduct amounts to stalking of another person if—

(a)it amounts to harassment of that person,

(b)the acts or omissions involved are ones associated with stalking, and

(c)the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.

(3)The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—

(a)following a person,

(b)contacting, or attempting to contact, a person by any means,

(c)publishing any statement or other material—

(i)relating or purporting to relate to a person, or

(ii)purporting to originate from a person,

(d)monitoring the use by a person of the internet, email or any other form of electronic communication,

(e)loitering in any place (whether public or private),

(f)interfering with any property in the possession of a person,

(g)watching or spying on a person.

s3 Civil remedy

(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

(3) Where-

(a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and

(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant.

(4) An application under subsection (3) may be made-

(a) where the injunction was granted by the High Court, to a judge of that court, and

(b) where the injunction was granted by a county court, to a judge or district judge of that or any other county court.

(5) The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if-

(a) the application is substantiated on oath, and

(b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.

(6) Where-

(a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and

(b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,he is guilty of an offence.

(7) Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court.

(8) A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court.

s3A Injunctions to protect persons from harassment within section 1(1A)

(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (“the relevant person”).

(2) In such a case-

(a) any person who is or may be a victim of the course of conduct in question, or

(b) any person who is or may be a person falling within section 1(1A)(c),

may apply to the High Court or a county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.

(3) Section 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a)

s4 Putting people in fear of violence

(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.

4A Stalking involving fear of violence or serious alarm or distress

(1)A person (“A”) whose course of conduct—

(a)amounts to stalking, and

(b)either—

(i)causes another (“B”) to fear, on at least two occasions, that violence will be used against B, or

(ii)causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities,is guilty of an offence if A knows or ought to know that A’s course of conduct will cause B so to fear on each of those occasions or (as the case may be) will cause such alarm or distress.

(2)For the purposes of this section A ought to know that A’s course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.

(3)For the purposes of this section A ought to know that A’s course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.

Other action

It is also possible to take Judicial Review proceedings against the school and LA but these would be costly and difficult to succeed with. Action could in theory be taken under Human Rights legislation but is frankly unlikely to succeed unless the bullying is extreme, has resulted in injury either psychological or physical and is backed up by strong medical evidence. 

Other actions may be possible such as a breach of contract case if the school is a private one or a case for failure to provide an education (the child must be over 21 to bring this case) however, they are difficult and chances of success low. 

If the bully is persistent and the family is a Council tenant a complaint to the Council could result in their losing their tenancy. This is used in extreme cases but has been achieved successfully. 

A complaint to a private landlord could possibly result in eviction of the bully’s family but in that you are reliant on the landlord to take action. 

The important thing to do is to keep note of every scrap of relevant evidence and to be persistent in insisting that action must be taken. 

Home education

If you feel that your child would be better protected by withdrawing them from school to home educate them it is your legal right to do this. Please remember that you must write a letter of deregistration to the school and that if you do not do so your child will be a truant. It is a simple letter and drafts can be obtained from Education otherwise or online support groups. 

Useful contacts

Child Law advice line: 08088 020 008 www.childrenslegalcentre.com

Martyn Caplan solicitor 0161 833 0578

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