Stalking Harassment by any other name..

Stalking Harassment by any other name.. On 25 November The Protection of Freedoms Act 2012 came into force. Among its provisions, the introduction of two new offences: stalking and stalking with fear of serious harm or distress. But what difference will this make to the prosecution of a stalker? Are there any material differences between stalking and harassment? On 8 March 2012 International Women s Day, the Prime Minister announced his support for legal reform, proudly setting out the government s commitment to tackle stalking; to recognise the criminality not simply as a branch of harassment but as an offence in its own right and to properly reflect that in tougher sentences. Although delivered by David Cameron as an empowering pro-active legislative step the need for legislative reform was in fact long overdue. In reality Britain was playing catch-up to the developments of other jurisdictions. Denmark first recognised stalking as a criminal offence in 1933, Queensland (Australia) and Canada introduced stalking into their respective criminal laws in 1993 and the most recent jurisdiction to particularise stalking as a criminal offence was Scotland in 2010 with the enactment of their Criminal Justice & Licensing (Scotland) Act. In fact with 13 EU member states already recognising stalking as a criminal offence, our legislature has been slow on the uptake. In England and Wales, developments in harassment law have always been reactionary, in response to cases which have caught the media and public attention and/or relentless campaigning. Over the last twenty years campaigners have fought hard to drag stalking out of the periphery of public perception and into the spotlight of the government agenda. It has not been an easy fight as historically the only cases which attracted media attention involved either celebrities or members of the Royal Family and bore little resemblance to the day to day experiences of ordinary victims. The first of these significant developments however came in 1997. One Paper Buildings 2012 Page 1

Pre 1997 Prior to the enactment of the Protection from Harassment Act, harassing behaviour could only be prosecuted if it fell within one of the offences set out in the Public Order Act. The obvious difficulty being that the elements of a public order offence could never comfortably fit the sometimes innocuous but persistent behaviour of stalkers. It was an obviously inadequate statute with very limited practical application to the circumstances of stalking and limited sentencing powers on conviction. In 1997 the case of Tracy Morgan came to the media s (and therefore public s) attention. Mrs Morgan was 22 years old and happily married when she was befriended by Anthony Burstow. Mr Burstow was a colleague at a nearby naval establishment, his wife was serving in Hong Kong and he often appeared depressed. Mrs Morgan took pity on him, inviting him out several times with her and her husband Andy. Outside of work Mrs Morgan began to bump into Mr Burstow more and more, at college, at aerobics and she became concerned. One day she found him parked outside her house and so she went out and told him to go away in strong terms. She also told her boss who ordered Mr Burstow to stay away. In fact it had the opposite effect and sparked a stalking campaign lasting ten years. He made silent telephone calls to her. He also made abusive calls to her. He distributed offensive cards in the street where she lived. He was frequently, and unnecessarily, at her home and place of work. He took photographs of the victim and her family. He sent her menacing notes. Such was the effect of his behaviour that Mrs Morgan suffered a severe depressive illness. The case received considerable publicity and in its wake the government turned their attention to developing a framework of legislation to address the problem. Protection from Harassment Act 1997 The Act came into force on 16 June 1997. Its primary aim? To tackle the problem of stalking by introducing two new criminal offences of harassment; section 2 of the Act established a summary only offence punishable with a maximum of 6 months imprisonment, whilst section 4 of the Act introduced an either-way offence where the victim fears that violence will be used, the maximum sentence being 5 years imprisonment. Both offences required there to be a course of conduct, two or more incidents to constitute the offence. The teeth of the act was the new power it gave courts to impose restraining orders on conviction. The hope was that it would deter repetition of the behaviour. Breach of any such order was an offence in its own right, with a maximum sentence of 5 years imprisonment. So how successful was the government s new weapon in its arsenal against stalkers? One Paper Buildings 2012 Page 2

Home Office Research Study 203 (2003) An evaluation of the use and effectiveness of the Protection from Harassment Act 1997 In 2003 the Home Office published a report by Jessica Harris, which sought to evaluate the effectiveness of the legislation. 39% of the cases studied were terminated by the CPS. 50% were because the defendant had agreed to be bound over, usually on the grounds of insufficient evidence, most commonly because the victim had retracted their statement. Only 10% were remanded in custody at the first court appearance, the majority of the remainder were bailed with noncontact conditions. Despite this, evidence showed that 21% of those bailed breached those conditions. When cases did reach court, 63% pleaded guilty, 21% were convicted after trial and 16% were acquitted. Staggeringly the most frequently imposed sentence was a conditional discharge (43% of cases) usually accompanied by the imposition of a restraining order. In addition the research revealed that the legislation was rarely being used to police stalking but instead used in a variety of other situations including domestic and neighbour disputes. Despite these findings nothing changed legislatively for 9 years. Inquiry into stalking law reform In May 2011 The Justice All Party Group under its chair The Right Honourable Elfyn Llwyd MP conducted an independent inquiry into stalking law reform. This time the results were damning the panel deemed the Act not fit for purpose. They found that the sinister nature of stalking was being diluted by the application of harassment to other more minor situations e.g. on-going neighbour disputes. Following input from members of the Police Force, court users and victims of stalking the panel s recommendations were in part, radical. Amongst other things they suggested that section 2 of the Protection from Harassment Act should be made triable either-way to reflect the serious nature of the offending behaviour and that section 4 should be replaced entirely with a specific offence of Stalking. Furthermore the panel proposed that a new offence of going equipped to stalk, harass or cause physical harm be introduced. One Paper Buildings 2012 Page 3

They advocated the imposition of a duty on social media and internet providers to co-operate with the police in the conduct of any stalking or harassment inquiry and pressed for Sentencing Guidelines to be reviewed in order that they could take account of the different types of stalking behaviour and its seriousness. In fact, in their view such was need for holistic reform that amendments to the 1997 Act simply wouldn t suffice. And yet unfortunately that it is precisely the step the government took. Spot the difference s.111 of the Protection of Freedoms Act introduces two new offences into the existing Protection from Harassment Act: (1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert 2A Offence of stalking 1. A person is guilty of an offence if a. the person pursues a course of conduct in breach of section 1(1), and b. the course of conduct amounts to stalking 2. For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person s course of conduct amounts to stalking of another person if a. it amounts to harassment of that person b. the acts or omissions involved are ones associated with stalking, and c. the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person 3. The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking a. following a person b. contacting, or attempting to contact, a person by any means, c. publishing any statement or other material d. relating or purporting to relate to a person, or One Paper Buildings 2012 Page 4

e. purporting to originate from a person f. monitoring the use by a person of the internet, email or any other form of electronic communication g. loitering in a place (whether public or private) h. interfering with property in the possession of a person i. watching or spying on a person 4. A person found guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51weeks, or a fine not exceeding level 5 on the standard scale, or both 5. In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months 6. This section is without prejudice to the generality of section 2 (2) After section 4 of that Act (putting people in fear of violence) insert 4A Stalking involving fear of violence or serious alarm or distress 1) A person ( A ) whose course of conduct a) amounts to stalking, and b) either i) causes another ( B ) to fear, on at least two occasions, that violence will be used against B, or ii) causes B serious alarm or distress which has a substantial adverse effect on B s usual day to day activities is guilty of an offence if A knows or ought to know that A s course of conduct will cause B so to fear on each of those occasions or (as the case may be) will cause such alarm or distress. 2) For the purposes of this section A ought to know that A s course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in One Paper Buildings 2012 Page 5

possession of the same information would think the course of conduct would cause B to so fear on that occasion. 3) For he purposes of this section A ought to know that A s course of conduct will cause alarm or distress which has a substantial effect on B s usual day to day activities if a reasonable person in possession of the same information would think that the course of conduct would cause B such alarm or distress. 4) It is a defence for A to show that a) A s course of conduct was pursued for the purpose of preventing or detecting crime b) A s course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or c) The pursuit of A s course of conduct was reasonable for the protection of A or another or for the protection of A s or another property 5) A person guilty of an offence under this section is liable a) on conviction on indictment, to imprisonment for a term not exceeding five year, or a fine or both b) on summary conviction, to imprisonment for a term not exceeding twelve month, or a fine not exceeding the statutory maximum or both 6) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (5)(b) to 51 weeks is to be read as a reference to six months At first blush, it is difficult to see how the addition of either new offence adds anything to the Act in terms of victim protection. The only difference between s.2 and s.2a is the requirement that the acts or omissions which form part of the alleged course of conduct, are ones associated with stalking. Section 3 then goes on to list examples of such acts or omissions (subsections a-g). Arguably everything listed is a prime example of behaviour which would have been considered harassment for the purposes of s.2 in any event. When one goes on to look at the maximum sentence prescribed for an offence under s.2a, there is no material difference to an offence under s.2 both are summary only offences with a maximum term of imprisonment of 6 months. That being the case, how can it sensibly be said that the addition of this new section affords the victims of stalking more protection or the court any greater powers to deal with such behaviour? One Paper Buildings 2012 Page 6

The position regarding s.4a is marginally different. The single appreciable difference between s.4 and s.4a (save of course the addition that the behaviour should be of a kind associated with stalking) is that a defendant can be convicted of it, not only if (as in s.4) he causes another to fear on at least two occasions that violence will be used against him/her but also if the defendant causes another serious alarm or distress which has a substantial adverse effect on that person s usual day to day activities. However this addition in itself may cause more problems than it solves for the Crown. In deciding upon the correct level of charge and when seeking to persuade a jury of the defendant s guilt, the prosecutor will need to surpass the seemingly high threshold set out in the statute the alarm or distress must be serious and the adverse effect on the aggrieved s day to day life must be substantial. It remains to be seen whether the effect of this wording will mean prosecutions and convictions for s.4a offences will happen in only the most serious cases of stalking, of the kind seen in Burstow. Again the maximum sentence prescribed for the new offence under s.4a takes the powers of the court no further than the existing maximum for an offence contrary to s.4, a maximum term of imprisonment of 5 years. So when one stands back to compare the declarations of David Cameron on International Women s Day with section 111 of Protection of Freedoms Act 2012, it may be hard to shake the feeling that we have all been somewhat short-changed. Louise Howard Chambers of Michael Hubbard Q.C. and Karim Khail Q.C. ONE PAPER BUILDINGS One Paper Buildings 2012 Page 7