What does the law say?

This section sets out the legislation that applies to intimidation with the aim of helping councillors experiencing intimidation or abuse to classify it according to the legislation.

Councillors' guide: handling intimidation

Key points

  • Threats to kill, rape, serious violence, stalking and property damage are all criminal offences
  • Intimidating behaviour that is face-to-face or by letter, telephone call or online is a criminal offence
  • Councillors are encouraged to make a record of these incidents and report them. Even if it does not result in a criminal investigation or conviction, it is important that the collective scale of the issue is reported

Download detailed information on related legislation

1. Legal background

Whilst the law on physical and verbal intimidation and abuse is better established and known, the law has been catching up with developments in the area of communication generally and the recent seriousness of intimidation arising from the conduct of our democracy. This includes the speed and available uses of the internet as well as the subsequent significant growth in the use of social media in both promoting political causes and discussions with residents and voters.

Although social media can create a new type of relationship with the electorate, it can provide a platform, through its remoteness and anonymity, to be used by those wishing to intimidate others.

Councillors are not employees of the council and do not have the benefit of safeguards in employment legislation if they suffer intimidation.  However, they should be supported by their council to undertake their duties safety and without fear or intimidation. Their political party may also offer them support. 

In undertaking their activities as a councillor, they are protected by the same legislation relating to intimidation or threats as to any member of the public. As councillors are servants of democracy they, arguably, deserve greater support as they undertake their public duties.

2. Summary of offences and corresponding legislation

The summary table below set out the range of offences classed as intimidatory offences. These range from face-to-face encounters to online activity. The guide includes a more detailed explanation of the offences.  

Offence

Legislation

Comment

The Act defines anti-social behaviour as “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”

 

Anti-social Behaviour, Crime and Policing Act 2014

 

Improper use of public electronic communications network

Communications Act 2003 – Section 127

Sending message which is grossly offensive or of an indecent, obscene or menacing character.

Racially or religiously aggravated offences

Crime and Disorder Act 1998 – Sections 28 – 32

Hate crimes relating to racial or religious issues.  Crimes relating to disability, transgender status or sexual orientation, treated as factors in sentencing.  Subject to Law Commission review.

Restraining orders on conviction or on acquittal

Protection from Harassment Act 1997 – Sections 5 and 5A

Section 5A inserted in Domestic Violence Crime and Victims Act 2004 and both sections give court wide discretion to restrain defendant from contact with victim.

Stalking, involving fear of violence or serious alarm or distress

Protection from Harassment Act 1997 – Section 4A

Inserted by Protection of Freedom Act 2012, also requiring conduct “on at least two occasions”.

Harassment which puts people in fear of violence

Protection from Harassment Act 1997 – Section 4

Requirement that the conduct has taken place “on at least two occasions”.

Offence of stalking

Protection from Harassment Act 1997 – Section 2A

Inserted by Protection of Freedom Act 2012 and examples are detailed in 1997 Act

Prohibition of harassment

Protection from Harassment Act 1997 – Section 1

Applies when one or more people are subjected to harassment

Intimidation arising from investigation into or given evidence about an offence

Criminal Justice and Public order Act 1994 – Section 51

Applies if intimidation is reported to police and prosecution takes place

Unauthorised access to computer material

Computer Misuse Act 1990 – Section 1

Hacking into computer

Common assault and battery

Criminal Justice Act – Section 39

Common law offence which includes fear of, rather than actual, violence

Sending letters or other communications with intent to cause distress or anxiety

Malicious Communications Act 1988 – Section 1

Electronic communications and networks included in Criminal Justice and Police Act 2001 and Communications Act 2003

Using threatening, abusive words or behaviour which may cause unlawful violence or harassment and alarm

Public Order Act 1986 – Section 4 and Section 4A

Applies for displaying any written material such as banners or posters

Threats to destroy or damage property

Criminal Damage Act 1971 – Section 2

“Without lawful excuse” or which could endanger life

Destroying or damaging property

Criminal Damage Act 1971 – Section 1

“Without lawful excuse” or being reckless as to action.  Arson could, also, amount to threat to kill

Threats to kill

Offences Against the Person Act 1861 – Section 16

Threat “without lawful excuse”

Possible future legislation

   

Intimidating parliamentary candidates or party campaigns

Government consultation following Committee on Standards in Public Life 2017 report

The LGA is lobbying that this should apply to local elections and candidates

Action to regulate removal of illegal and unacceptable online content

Government consulting on its Online Harms White Paper

Likely to be subject to resistance from the tech companies

3. Balancing freedom of speech and its limitations

The right to freedom of expression is a fundamental human right of the greatest importance and a lynchpin of any democracy. However, it is not an absolute right as indicated in the three articles numbered 9, 10 and 14 of the European Convention on Human Rights. The key elements appear in article 10, which sets out that the freedom includes to right to hold opinions and to receive and impart information and ideas without interference from a public council.

The elements that have a bearing on councils are:

 

  • Interests of public safety
  • Prevention or disorder or crime
  • Protection of health or morals
  • Protection of the reputation or rights of others
  • Preventing the disclosure of information received in confidence

    All the above have been incorporated within our legislation and thus restrict the extent to which freedom of speech is permitted.

 

4. Severity of intimidation

If you are feeling intimidated, then that experience is legitimate and should be your own test as to whether you want to report the situation. In determining whether an act is classed as intimidation in law, the police and the courts will apply their own tests based on the existing legislation and ‘reasonableness’. However, legislation, guidance and case law evolves and this should not put you off reporting a situation and seeking a resolution should you feel you have been intimidated.

In summary:

Threats to kill, rape, serious violence or actual common assault, damage to property (such arson) should be reported to the police. Councillors may wish to review their own personal safety precautions and possibly those of their family. Harassment and stalking would also require police involvement, particularly if there were a number of occurrences. Action following intimidation arising from both face-to-face and online contact will depend upon the circumstances such as the number of communications or contacts, extent of obscene or violent language and whether the activity continued for a period of time including whether the abuser resorted to more than one method of abuse. Councillors are encouraged to record all instances that cause concern and in reporting to the police consider the requirement for detailed evidence to prove the case “beyond all reasonable doubt”. 

Although the courts look at the conduct from an objective point of view, the victim’s reaction to the intimidation will be subjective and it will be for that individual to decide upon the action which is taken. The courts will also take a view on whether the perpetrator knows or ought to know that his conduct amounts to harassment.

There have been a number of cases arising from the provisions of the 1997 Protection from Harassment Act where judges have provided guidance as to when the intimidation complained about should require the involvement of the civil or criminal law. The judge in the case of Dowson and Others v Chief Constable of Northumbria [2010] EWHC 26 set out six steps under the 1997 Act:

1. there must be conduct which occurs on at least two occasions
2. which is targeted at the individual
3. which is calculated in an objective sense to cause alarm or distress, and
4. which is objectively judged to be oppressive and unacceptable
5. what is oppressive and unacceptable may depend on the social or working context in which the conduct occurs
6.  a line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways such as “torment” of the victim, “or an order which would sustain criminal liability”.