This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to how harassment offence charges are decided by prosecutors in England and Wales, explaining the legal tests under the Code for Crown Prosecutors, key harassment offences, evidence considerations, public interest factors, and practical steps in the charging process.
Harassment offences in England and Wales are taken seriously by both the police and prosecutors because they can significantly affect victims' safety and wellbeing. These offences are primarily governed by the Protection from Harassment Act 1997 and related statutory provisions under the Public Order Act 1986 and Criminal Justice Act. A harassment charge may arise from repeated unwanted behaviour, threats, stalking, or other conduct that causes alarm or distress. This article explains how prosecutors in England and Wales decide whether to charge someone with harassment, the legal tests they apply, relevant legislation, evidence considerations, how public interest is weighed, and what practical questions often arise during the process.
What Is a Harassment Offence?
Harassment offences include behaviour that constitutes a course of conduct which causes another person to feel alarmed, distressed or fearful. The main criminal provisions are set out in the Protection from Harassment Act 1997, which makes it an offence to pursue such conduct and also contains aggravated versions (including fear of violence or serious distress). Harassment may also overlap with public order offences – such as threatening, abusive or disorderly behaviour – and prosecutors will consider the most appropriate charges in each case.
Under the Protection from Harassment Act:
- Section 2 creates the basic offence of harassment, normally requiring evidence of repeated conduct;
- Section 4 deals with harassment causing fear of violence, with more serious potential consequences; and
- Aggravated offences apply where conduct stems from hostility based on protected characteristics, attracting higher maximum penalties.
Prosecutors must examine the pattern of behaviour and whether it meets statutory elements such as repetition, impact on the victim and the defendant's knowledge or ought‑to‑know standard.
The Prosecutor's Role in Charging Decisions
In England and Wales, decisions about charging someone with a harassment offence are governed by the Code for Crown Prosecutors. Prosecutors from the Crown Prosecution Service (CPS) or, where applicable, other prosecuting authorities independently assess cases brought by the police or other investigators. They must apply two key legal tests before authorising charges:
- Evidential Test – whether there is sufficient admissible evidence to provide a realistic prospect of conviction; and
- Public Interest Test – whether it is in the public interest to prosecute.
Both tests must be satisfied for a prosecution to proceed. The evidential stage requires prosecutors to objectively consider the quality and admissibility of evidence, including how a reasonable jury or magistrates might interpret it. The public interest stage involves balancing factors in favour of prosecution (such as harm caused and deterrence) against factors that may weigh against it (such as if the conduct is minor or if non‑prosecution disposals are more appropriate).
Prosecutors may also advise on out‑of‑court disposals where suitable alternatives - such as cautions or community resolutions - better serve justice in lower‑level or straightforward cases.
Step‑by‑Step: How Harassment Charges Are Decided
Police Investigation and Referral
Harassment cases commonly begin with a police investigation following a report by a victim or witness, or via self‑referral by victims. Police gather evidence such as statements, digital messages, CCTV footage, and witness accounts. Once the investigation reaches a stage where sufficient evidence may exist, the case is commonly referred to the CPS for charging consideration.
Application of the Evidential Test
Prosecutors first assess whether the available evidence makes a prosecution viable. This includes establishing whether:
- there has been a course of conduct in accordance with the Protection from Harassment Act;
- the alleged conduct objectively amounts to harassment, caused distress, alarm or fear; and
- any statutory elements, such as knowledge or reasonable person standards, are supported by evidence.
Prosecutors also consider overlaps with other offences (for example public order or stalking) and whether charging under those provisions better reflects the conduct and potential sentence. For instance, repetitive conduct causing significant fear may warrant higher‑level charges than a public order summary offence.
Public Interest Test
Once evidence is deemed sufficient, prosecutors evaluate whether prosecuting is in the public interest. Factors favouring prosecution often include the seriousness of the behaviour, impact on the victim, vulnerability of the victim, and whether prosecution might deter future offending. Conversely, factors such as inadvertent conduct, low impact, or strong mitigating circumstances may argue for alternatives to prosecution or for lower‑level charges.
Prosecutors must apply these public interest factors consistently with the Code, avoiding undue influence from public opinion or unrelated considerations.
Charge Selection and Alternatives
Prosecutors determine the specific offence or combination of offences that most appropriately reflect the conduct. In cases of harassment, this may include:
- Harassment under section 2 of the Protection from Harassment Act 1997;
- More serious harassment or fear‑inducing behaviour under section 4;
- Public order offences (such as intentional harassment, alarm or distress under the Public Order Act 1986), where the conduct was in public and fits those criteria; or
- Other related offences if the conduct amounts to stalking or involves racial or religious aggravation.
This selection balances the need for clear presentation of the case to court and sufficient sentencing powers should a conviction occur. Prosecutors may decline unrelated or inconsistent offences if they do not align with the evidence or public interest.
Charging Decision and Communication
Once prosecutors authorise a charge, the decision is communicated to the police and appropriate charging documents are prepared. Where charges are authorised, the suspect is informed and the case proceeds to court. If prosecutors decide not to prosecute, they must communicate this decision to the relevant police force and, where appropriate, to victims or complainants, often with reasons or the opportunity for a Victims' Right to Review of the decision.
Time Limits and Procedural Considerations
Harassment offences under the Protection from Harassment Act are subject to statutory time limits, particularly for summary offences tried in the Magistrates' Court (typically six months from the last act forming part of the course of conduct). Prosecutors must ensure that time limits are considered when deciding to charge or pursue other charges that may not be time‑barred.
Overlapping conduct, such as cyberstalking or online harassment, may also fall under newly‑recognised offences (for example cyberflashing under the Online Safety Act), which prosecutors will consider alongside traditional harassment offences.
Rights and Practical Considerations
Rights of the Defendant
Individuals under consideration for harassment charges have legal rights throughout:
- The presumption of innocence until proven guilty.
- The right to legal advice and representation during investigation, charging decisions and court proceedings.
- The right to challenge evidence and raise relevant defences.
A solicitor can assist with understanding potential charges, evaluating the evidence, and advising on procedural options.
Support for Victims
Victims of harassment have the right to be informed about charging decisions, the progress of prosecution, and available support services. They may also present a Victim Personal Statement at sentencing to describe the impact of the behaviour. Prosecutors and police work cooperatively to ensure that victim safety and rights are considered throughout.
Common Questions
Does the victim control the charging decision?
No. While victim reports and statements are key evidence, decisions to charge lie with prosecutors based on legal tests and public interest.
Can harassment cases involve other offences?
Yes. Prosecutors may bring public order charges, stalking charges, or related offences where appropriate, depending on conduct and evidence.
What happens if there isn't enough evidence?
Prosecutors may decline to charge or may request further police investigation. In some cases, alternative disposals may be offered.
Key Takeaways
Deciding whether to charge someone with a harassment offence in England and Wales involves a structured assessment by prosecutors guided by the Code for Crown Prosecutors. This includes applying the evidential test to ensure a realistic prospect of conviction and the public interest test to determine whether prosecution is appropriate. Prosecutors review police evidence, consider relevant statutory offences including the Protection from Harassment Act 1997, and select charges that reflect the conduct and allow courts adequate sentencing powers. Defendants and victims both have procedural rights, and practical considerations such as time limits and overlapping offences may influence charging decisions. Understanding this process helps clarify how harassment prosecutions are determined and what to expect from the criminal justice system.
