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Table of Contents

Stalking and the Law

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A term originally coined by the tabloid press, Stalking attracted public and media attention following a series of high-profile prosecutions. Stalking was not formally defined in either English criminal or civil law until 2012 but was previously and broadly described as behaviour which subjects another to a course of persistent conduct, whether active or passive, which taken together over a period of time amounts to harassment or pestering.

The common methods employed by stalkers; pursuing, making obscene telephone calls, committing act of violence or using abusive and threatening language, indicate the range of actions which may affect victim's lives. More often that not, this is psychological harm.

The problem is most often not simply a nuisance affecting only celebrities who have in some way forfeited their right to privacy, but may simply originate from someone trying to start or resurrect a relationship with another. Between January 1994 and November 1995 The National Anti-Stalking and Harassment campaign (NASH), reported that over 7,000 victims of stalking telephoned their helpline. This statistic, in addition to incidents such as the Perry Southall case of 1996 reported in considerable detail, highlighted that stalking was a widespread problem. The outcome was a strong argument and widespread support for the introduction of new legislation to criminalise stalking. As a result of a 1996 Home Office Consultation Paper on the subject, the relevant legal terms were pestering and harassment.

Relief was arguably already provided to those threatened by stalking in English criminal and civil Law. The civil law afforded litigation in several ways. Provisions of the Domestic Violence and Matrimonial Proceedings Act (1976) permitted the granting of injunctions against molestation by one spouse or cohabitant against the other. Additional protection was given to spouses by the Domestic Proceedings and Magistrates' Courts Act (1978) and the Matrimonial Homes Act (1983). A wider range of “associated persons” within a domestic or family relationship were included under the Family Law Act (1996) and could find remedies for particular behaviour and the prohibition of molestation. The act also extended the power of arrest for police where violence is used or threatened against the victim.

Legislation existed in criminal law which related to the activities of stalkers. Sections 4 and 4(A) of the Public Order Act (1986), created by s.154 of the Criminal Justice and Public Order Act (1994), made it an offence to use “threatening, abusive or insulting words or behaviour with intent to cause a person to believe that immediate violence will be used against him, or whereby that person is likely to believe that such violence will be used”. An offence is also committed “if a personal intentionally causes harassment, harm or distress by using threatening, abusive or insulting words or behaviour”.

Other areas of the criminal law dealt separately with aspects of stalking. The making of malicious telephone calls is contrary to section 43 of The Telecommunications Act (1984), “for the purpose of causing annoyance, inconvenience or needless anxiety to another”.

Section 1(1) of the Malicious Communications Act (1988) made it possible to prosecute for the sending of obscene letters or parcels, although they must be of a “grossly offensive nature”. The original Protection from Harassment Act (1997) included measures to tackle stalking but did not define of formally proscribe it.

Together these statutes made many of the actions commonly associated with stalking a criminal offence.

The law of Tort also provided actions obstructive to several aspects of stalking. The torts of trespass to the person; assault and battery, and negligence causing personal injury, as well as the torts of trespass to land and nuisance were highlighted in cases in which the courts considered molestation. In Khorasandijan v Bush (1993) injunctive relief was granted to the plaintiff through the tort of nuisance to “prevent harassment which was causing harm because of continual stress”. The question of the tort of harassment was also debated, with authority for the tort emerging in the Court of Appeal decision in Burris v Azadini (1995). Sir Thomas Bingham MR stated that “Nor…can the view be upheld that there is no tort of harassment”. Cases reflected several relevant offences of harassment prosecutions under the Offences against the Person Act (1861) against stalkers, of assault causing actual bodily harm (ABH) or grievous bodily harm (GBH) where, rather than physical harm, the harm was serious psychological injury on the victim, for example in the cases of R v Ireland (1996) and R v Burstow (1996), and represent an important and useful application in dealing with stalking. The significance here is that in most cases the harm is not physical but mental. In R v Chanfook (1993) it was deemed necessary however to have medical evidence of the injury and was held as authority. Following the case of R v Johnson (1996) section 47 of the 1861 Act could be used to prosecute for public nuisance; a common law offence.

Existing law therefore had the power to protect the public from several aspects of stalking, in particular through a civil injunction or a criminal conviction. It was agreed however by the majority of the public and the judiciary that measures to combat stalking were not sufficient and legislation to criminalise the behaviour needed to be introduced.

In the civil courts powers were extended by the provisions of the Family Law Act (1996). However where the stalker is a stranger or not a co-habitee, the use of non-molestation orders was not available. The result was a reduced effectiveness. The precise definition of the protected right under molestation wasn’t clear. The law of nuisance has given greater protection but the law was intended to deal with property rights only, and in cases of molestation its protection is not available; thereby excluding cases where the stalker has not breached this right and excluding actions such as telephone calls.

The maximum term of imprisonment for contempt of court, for breach of a court order, was two years; considered an insufficient penalty to deter stalkers and not adequate. The powers of arrest are very limited in relation to the civil law and the police can only have a limited role in investigating breaches of civil law. Due to the high risk taken by the victim, the lack of financial assistance, in the form of legal aid, created a position where many cannot afford to take the risk.

Under criminal law the major problems concern the issues of standards of proof, and intent. The burden of proof in criminal courts is very high and it can to be difficult to prove harassment through a charge of “behaviour likely to cause a breach of the peace”, where a defendant intends to cause no harm and is merely shadowing the victim. Convictions under section 20 of the Offences against the Person Act (1861) for psychological assault, for example R v Burstow (1996) establishing the doctrine of psychological assault, were possible because the psychological harm inflicted on the victims was so extensive so as to constitute grievous bodily harm. Medical evidence to prove the offence and secure the conviction was also required. However “victims should not have to suffer to such an extent in order for the law to provide an effective remedy”1).

To commit an offence under the provisions of sections 4 and 4(A) of the Public Order Act and other statutes embodying some element of stalking where the defendant has caused harassment, alarm, distress or the fear of violence, intent was required. Where the stalker did not intend any harm to the victim, a problem could thus arise if the behaviour is passive. The result was that many stalkers could go unpunished despite the suffering caused to the victim.

Overall the position for the victim or litigant was one of uncertainty. Legislation formally combating stalking must therefore deal with these shortcomings of both the criminal and civil systems. Defining stalking and intention arise again as two of the greatest problems in attempting to legislate to criminalise.

The term 'stalking' covers such a broad range of actions that its prohibition and definition for the statute books created problems. It must be exact but must also exclude the every day behaviour of innocent people. This includes investigative journalists, debt collectors and those legitimately looking to begin a relationship with someone; where no act of nuisance could be held to be apparent. In terms of overseas' approaches as a reference to defining the offence, under the West Virginia Code (1993) stalking is where ”…place person in reasonable fear of death or serious bodily harm”. Canadian law also required that the victim is in fear of bodily harm.

Intention is the additional issue. In criminal law the establishment of a mens rea or 'guilty mind' is required, as well as the actus reus or 'guilty act'. Where the defendant intends no harm or distress this could lead to many victims receiving little or no justice, yet still serious harm; be it physical or psychological. Any legislation needed to overcome this problem. This had been done to some extent in Scottish law, where activities commonly referred to as stalking were criminal acts under breach of the peace ”…conduct which may reasonably be expected to cause any person to be alarmed, upset or annoyed”. In 2010 stalking was made a statutory offence in Scottish Law under s.39 of the Criminal Justice and Licensing (Scotland) Act (2010).

The United Kingdom Government initially outlined its proposals to criminalise stalking in a Consultation Paper, published in July 1996. Civil and criminal remedies were advocated, developed around the existing provisions. A new tort of molestation was proposed, dealing with the problems of intent by making unlawful ”…where he realised, or ought to have realised, that his conduct … distress”. Breach of an order restraining molestation, or injunction, would be punishable by up to five years imprisonment. Two new criminal offences were also proposed, encompassing elements of stalking, with a maximum of five years imprisonment and an unlimited fine.

Previous civil and criminal measures had been insufficient in dealing with both the defendant and the plaintiff in cases of stalking. Legislation had to effectively address the problems of intent and definition in particular. Ultimately the legislation must balance public liberties while ensuring effectiveness is maintained.

The Protection from Harassment Act (1997) created a civil tort of harassment in addition to two criminal offences of harassment; where it is unlawful to 'pursue a course of conduct which amounts to harassment of another and which the defendant knows, or ought to have know, amounts to harassment of another' and 'putting a person in fear of violence'. Stalking was not named or defined in the provisions.

Following a Home Office Consultation2) catalysed by campaigns by Protection against Stalking (PAS), the National Association of Probation Officers (NAPO) and a Parliamentary Group Independent Parliamentary Inquiry into Stalking Law Reform (2012), the Protection from Harassment Act (1997) was amended by the Protection of Freedoms Act (2012) to define and formally proscribe stalking.

Section 111 of the 2012 Act added new section to the 1997 Act. Sections 2A and 4A defined and created specific offences:

Section 2A on the Offence of stalking; 'a person is guilty of an offence if … course of conduct amounts to stalking … if it amounts to harassment'. The 'examples of acts or omissions which, in particular circumstances, are ones associated with stalking' include following, contacting, publishing, monitoring, loitering, interfering, watching or spying. Section 4A on Stalking involving fear of violence or serious harm or distress.

While the amendments did not strictly define stalking in legal terms, it should be noted that listed examples were non-exhaustive and indicative of relevant behaviours. The legislation, in addition to the Home Office guidance circular3) and all previous relevant legislation, forms a more comprehensive body of law and reference.

References

Burris v Azadani (1995) 1 WLR 1372
Crown Prosecution Service Stalking and Harassment http://www.cps.gov.uk/legal/s_to_u/stalking_and_harassment/
Home Office Consultation Paper Stalking - The Solutions (July 1996)
Howarth, D. SWOT English Legal System (1995)
Justice Unions’ Parliamentary Group Independent Parliamentary Inquiry into Stalking Law Reform (Feb 2012)
New Law Journal Is there a law against stalking? March 22 1996
Khorasandijan v Bush (1993) QB 727


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