Using harassment law to enforce contact – update
I was back in court again on 15th Jan trying to bring a private prosecution against my ex-wife for harassing me by damaging my relationship with my children.
An earlier post on this site reported I had won a Judicial Review of the Magistrate’s decision to refuse to issue a summons. The Magistrate’s decision was quashed and the matter was referred back to the Magistrates for reconsideration.
The 15th January hearing was to reconsider it, and unfortunately it was again refused, this time for a different reason.
I take a number of positives from it, however. At this hearing the court did not dispute that I had a right to bring a private prosecution without first complaining to the Police and, more importantly, the court accepted that if my ex-wife damaged my bonds with my children that could constitute criminal harassment. The court held that in my case, the evidential base for the alleged harassment was not sufficiently strong, and it was dismissed for that reason.
I am not too disappointed. It has not been a wasted exercise. It has opened the door for others to use this route.
It means that anyone who can provide firm evidence, to a criminal standard, of incidents which have damaged your bonds with your children, harassment law is a possible route to seek redress, and I would be happy to assist anyone who wants to try it.
There must be at least 2 incidents during a 3 month window in the preceding 6 months. The incidents don’t have to be breach of a contact order. They could be alienating you from your children, or wilfully using the power of the residence order to belittle and control you. Remember, in criminal proceedings, it is no longer the so-called welfare of the child principal which trumps everything, and allows the other parent to destroy you with impunity. This is criminal law, outside of the Children Act, and different rules apply.
You have to be able to prove 2 things to the highest standard of proof, i.e. beyond reasonable doubt:
1/ that the other parent did these acts which you allege, and
2/ that he/she did them knowing that they would cause you distress.
If this applies to you, get in touch.
Ray
Dear Ray,
I’m sorry that you have been harassed, and hope it ultimately didn’t annoy you too much.
Can I ask you a bit about the procedures of private prosecutions? What costs did you have to pay? If you had enough evidence to go through with the whole prosecution, would you have £150,000 or some other substantial sum of money to pay for the prosecution? If you lost the harassment case and your ex was not found guilty of harassment (not enough evidence etc.), would you HAVE TO pay for her defence money? How about the COURT COSTS?? Who is responsible for paying the court costs? (In a pro bono venture or a paid one)
My case is sexual crimes, the police have been useless to me but band 1 criminal lawyers the most useful; they know I have a legitimate case no matter what the average person in the street thinks of this sort of issue.
Basically you apply to the magistrates court for a summons to be issued requiring the person to attend court to answer the charge you wish to bring. There is no particular application form – just set it out in a letter; you should then be given a date to attend court to “lay informations” before the court, and at that hearing you need to provide evidence to the magistrate that there is a prima facie case to answer. If you succeed, he should then issue the summons, and the prosecution begins.
As for costs, this is what I think the law says, but until we get a case through court we cannot be absolutely sure what will happen:
In civil proceedings costs normally “follow the event.” i.e. the loser has to pay the costs of the other party. However, rules on costs in a Magistrates Court are different. Sections 16 – 19 of Prosecution of Offences Act 1985 governs them. The Act treats a Private Prosecutor the same as a Crown Prosecutor as far as costs are concerned. This means that if the private prosecutor wins, the prosecutor can ask for his costs to be paid by the defendant, but if the prosecution fails, the defendant is normally paid his costs from Central Funds (a pot of public money), not by the prosecutor.
However, Sec 19 says the court has the discretion to make a costs order against someone “where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings”
If your prosecution fails, therefore, defense costs should be met from Central Funds unless the court is satisfied that you acted unnecessarily or improperly, in which case it may make the order against you personally. However, until a case goes through, we cannot be sure exactly what a court will do.
If you instruct a solicitor to bring the prosecution for you, you would have to pay his costs initially. You could then apply for the defense to pay them if the prosecution succeeds, but if it fails, you would have to bear your own solicitor’s costs yourself.
If you bring the prosection in person without a solicitor, you would, of course have no costs of your own, and you would need to pay only the court fee, which is £150. If you are on benefits or earn less than £12,000 pa, you are exempt from paying the fee.
Dear Ray,
The case about harassment is very interesting, I’m sure someone will benefit from this information. By the way, have you got any tips for not marrying someone who I’ll then have to prosecute? I’m 26 years old and don’t fancy obtaining a husband whom I’ll have to prosecute at a later stage.
As for a private prosecution, for the past 8 months of my life I have been asking my Member of Parliament to sign his name on application forms for pro bono legal assistance. To this date he has signed none. He has been trying to figure out the Sexual Offences Act (2003) and what I mean by sex crimes outlawed since 124 years ago. He is very keen though.
I have had to read up on Central Funds quite recently. Private prosecutions are very scary things financially among everything else. There are scary stories of prosecutors going bankrupt following unsuccessful prosecutions (for blasphemy, for example) as they have costs ordered against them. I am already sexually violated, if you excuse my bluntness, for me to go bankrupt on top of that from trying to do something about it would be most bizarre. I should probably start reading law books about personal insolvency? Knowledge can give me reassurance and peace of mind if I know what can happen and what’s unlikely to happen. The severe delays when legal proceedings have not even commenced are really excruciating. I hope my Member of Parliament understands that.
I don’t see how my prosecution would be unnecessary and I hope my utterances in the song ‘Gordon Brown be my Angel’ http://www.youtube.com/watch?v=DCEWhEuhRoo for example is not a case of being improper saying a little too much. I don’t think being listened to 3000 times means it can influence the jury in any way when nobody is named and there are no case details in the song.
I am still without legal representation. Shouldn’t I have applied to the court for a summons by June 2009? But then that would be when I had no clue whether any lawyer would be forthcoming to represent me, I am in fact without £150,000 I just cannot afford to prosecute. As for court attendance I might have to do it via videolink as I have plenty of reasons to believe I will be outside of the United Kingdom. I don’t know how easy or nightmarishly difficult it is to coordinate that. I have absolutely tonnes of evidence.
As legal principles are complicated and the case details are complicated, how am I going to manage without a lawyer though? … Prosecution is very risky financially and otherwise, the less I am advised the riskier it is. That’s why many people want to stay safe by staying away from the law and legal proceedings, but then they might want to ask themselves what is there to protect them from harm?
But you are saying it’s technically possible to prosecute without a lawyer? That sounds like it’s better than not prosecuting. Or I could start the process and somehow naively hope that my Member of Parliament can find me legal representation in due course? I can only really have legal representation if it is offered pro bono. In a way it could be an interesting way to end up getting paid- I know I have a very large number of witnesses and a big pile of documentary evidence. If the opponent loses, he should pay for my prosecution right? I wonder if that means my pro bono lawyer can end up being paid, so it’s a bit like no-win no-fee?
Somehow I got the impression that the court fee was a lot more money than 150 pounds. I’ll need to investigate.
I’ll need to study and re-read the information you have given me- legal proceedings that have not commenced give me such headaches. For a number of strong reasons it is very important for me to try my best. Last February I prayed 88 prayers over this and still went to work- I don’t know how I managed, I didn’t really sleep, that’s why. Also, in 125 years, there is a great need for the law to be fulfilled: this is a long story.
By the way, in my case I had a parent that I didn’t really see in 8 years, I don’t really recommend that sort of thing.
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