The issue by police of Police Information Notices, or PINs, is an extra-legal practice that is giving increasing cause for concern.
Harassment is an offence that was introduced by the Protection From Harassment Act of 1997. The Act makes no mention of PINs, which are an extra-legal preventative measure designed to deter the commission of offences. They are officially recognized and widely used. They are also open to misuse.
Under section 1 of the Act harassment is a course of conduct—(a) which amounts to harassment of another, and (b) which (the person in question) knows or ought to know amounts to harassment of the other. Conduct does not amount to harassment if ‘in the particular circumstances the pursuit of the course of conduct was reasonable.’ (section 1(3)).
Before issuing a PIN the first question the police should ask themselves therefore is whether the conduct in question could be said to amount to the crime of harassment.
The need for an investigation before the issue of a PIN has been the subject of recent judicial dicta at the highest level. In the case of T, R (on the application of) v The Commissioner of Police for the Metropolis  EWHC 1115 (Admin) Mr Justice Eady felt it necessary, ‘to focus on the extent to which it is necessary to interview a suspect prior to serving a notice. Not only would it seem to be fair to the accused person to do so’, he said, ‘but it would be a significant factor in helping the police officers to decide whether the allegation is or is not well founded. Indeed, some of the available guidance appears to suggest that a notice should not be served until the police investigation is complete. Yet it has to be said that none of the evidence is unequivocal on the point nor of binding legal force.’
The case went to the Court of Appeal and then to the Supreme Court on a separate issue which does not affect the validity of Mr Justice Eady’s remarks. In the Supreme Court Lady Hale offered some further thoughts on the issue: ‘It might be thought … that in common fairness a person against whom an allegation of this kind is made should be invited to give his or her side of the story before the police decide whether action of any kind is appropriate.’
As well as being essential on the ground of fairness an investigation is vital because the legislation offers no right of appeal against a PIN which can be used in future civil or even criminal proceedings.
Although there is no statutory requirement for an investigation before a PIN is issued it is difficult to see how a decision to issue can be taken without some form of investigation. At the very least and unless there are circumstances which prevent it being done the accused person himself should be asked whether he admits performing the conduct in question and, if so whether he accepts that it amounted to harassment and whether he had any statutory defence to a charge of harassment.
The next question the police should ask is whether the language of the PIN appropriate?
The National Police Investigation Agency Practice Advice on Investigating Stalking and Harassment declares that, ‘Whenever a notice is given, officers should not suggest that this implies any guilt on the part of the suspect.’
When the T,R case, above, went to the Supreme Court Lord Sumption held that ‘The form of Prevention of Harassment Letter used by the Metropolitan Police was ‘unnecessarily menacing and accusatorial, given that no crime has been committed and that the facts have not always been fully investigated.’ Lady Hale added that, ‘the letter (wrongly) gives the impression that the police had accepted the complainant’s version of events and that it amounted to harassment.’
It is true that most PINs contains a statement on the lines that ‘at this stage the Police are not commenting on the truth of this allegation’, but this would not remedy a deficient notice if the rest of the document suggests otherwise.
Some PINs include the statement that ‘If the kind of behaviour described were to continue you are liable to arrest for harassment.’ The term, ‘were to continue’ suggests that the authority issuing the notice has already made up its mind that the behaviour had already occurred. Language like this could not in Lord Sumption’s words be more menacing and accusatorial.
The time has come for an urgent review of this practice.
Brian Harris OBE, QC