As Transport for London, in co-operation with the police, renews its campaign to improve the safety of vulnerable travellers on its network, Humzah Ilyas has written a blog on the public information campaign’s legal claims.
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Anyone who has travelled on London’s public transport network recently is likely to have spotted at least one in a series of posters emblazoned with what appears, at first glance, to be urgent legal advice.
Under the large format headline ‘Staring’, one such poster declares that ‘intrusive staring of a sexual nature is sexual harassment and is not tolerated’.
Another poster proclaims – this time under the headline ‘Pressing’ – that ‘rubbing against someone on purpose is sexual harassment and is not tolerated’.
Others in the public information campaign address the topics of ‘Upskirting’, ‘Touching’, ‘Exposing’, ‘Cyberflashing’, ‘Cat Calling’ and ‘Touching’.
The posters can be seen across Transport for London’s underground network, and appear to be the latest iteration of a campaign which started in 2021. The most recent posters feature the logo of London’s Metropolitan Police Service. Previous versions have been endorsed by the British Transport Police (BTP).
Transport for London (TfL) has said that its campaign is designed to ‘challenge the normalisation and dismissal of this behaviour as ‘something that happens’ to women and girls on public transport and in other public spaces, making it clear that it is never acceptable and that the strongest possible action will always be taken.’
While this is clearly an admirable ambition, there is a significant legal problem with this campaign which may ultimately undermine its creators’ stated intention.
The problem is the unqualified use of the phrase ‘sexual harassment’ alongside the logos of both the Met and BTP. These two words, combined with these official endorsements, may lead a reader to assume that ‘sexual harassment’ is a crime. It is not.
What is sexual harassment?
Although ‘sexual harassment’ is a widely understood concept, it is not a criminal offence in its own right and it is misleading – and potentially harmful – for TfL, the Met and the BTP to suggest otherwise.
The closest criminal offence to ‘sexual harassment’ is harassment or stalking. Under section 2 of the Protection from Harassment Act 1997, it is an offence for a person to pursue a course of conduct that amounts to harassment of another individual which they know or ought to know amounts to harassment. There is a more serious offence under section 4 if the course of conduct involves a threat of violence.
It is important to note that the ‘course of conduct’ referenced above must involve at least two incidents of harassment which need to be directed at the same person. The fewer the occasions – and the wider they are spread – the less likely it is that a court would make a finding of a course of conduct.
Harassment is not specifically defined in the Act and nor does the legislation provide any specific examples of courses of action that could constitute harassment. It does however set out examples of acts which are associated with stalking which include following a person; watching or spying on them; and loitering in any public or private place.
Can I be prosecuted for staring at someone on the Tube?
Staring at someone in a threatening way on public transport, on more than one occasion could potentially result in a prosecution for either harassment or stalking.
But it does not mean, as the TfL campaign strongly implies, that ‘intrusive staring of a sexual nature’ will, in itself, lead to prosecution for ‘sexual harassment’.
Again, taking ‘Pressing’ for example, the poster suggests that ‘rubbing against someone on purpose is sexual harassment […]’. If this is intended as a statement of law, it is incorrect. It is accurate to say, however, that intentionally pressing against someone in a sexual manner without their consent, may amount to a sexual assault under section 3 of the Sexual Offences Act 2003.
This is also the case for several of the other listed harmful behaviours such as ‘Exposing’, ‘Upskirting’ and ‘Cyberflashing’. Sexual harassment is not a criminal offence but a person could find themselves being prosecuted for exposure, operating equipment beneath clothing (often known as upskirting), or cyberflashing which are existing criminal offences.
While it is of course unrealistic to expect TfL to include an in-depth discussion of criminal legislation in its public information posters, it is an oversimplification to state, as this campaign does, that this thoroughly unpleasant behaviour is criminal.
Public messaging from state bodies and organisations such as the police and local government must be accurate and clear. If not, then the people whose behaviour these bodies are seeking to modify may either misunderstand the intended message or dismiss it.
It is concerning that two police forces have condoned public messaging that misstate the law on this important issue
