|Written by Criminal Law and Justice Weekly|
|Saturday, 26 January 2013 00:00|
Neil Addison and Jennifer Perry examine the stalking provisions of the Protection of Freedoms Act
On November 25 last year, ss.111 and 112 of the Protection of Freedoms Act 2012 came into force. Stalking campaigners hope the new legislation will lead to better management and prosecution of stalkers.
Looking at stalking legislation introduced in Scotland in 2010 gives campaigners here hope. In Scotland, 150 stalkers were prosecuted in the first four months of a new law coming into force, whereas before there had only been 70 convictions over the previous decade. Ninety per cent of the perpetrators pleaded guilty.
When Tracey Morgan was stalked for nine years by her work colleague Anthony Burstow 20 years ago, stalking was associated with domestic violence. There were no laws that applied in Tracey’s case.
Tracey and others campaigned and were successful in bringing in the 1997 Protection from Harassment Act. Sixteen years later, we understand more about stalking, victims and the long-term impact on them. During that time, stalking has increased and it also has gone digital. The British Crime Survey suggests there may be up to 120,000 victims a year, with a current conviction rate of only two per cent.
What does the new legislation offer victims? Through ss.111 and 112, the Protection of Freedoms Act 2012 adds three new offences to the Protection from Harassment Act 1997, namely “stalking” (s.2A(1)), “stalking involving fear of violence” (s.4A(1)(b)(i)), and “stalking involving serious alarm or distress” (s.4A(b)(ii)).
Looking at the new offences alongside the existing s.2 and s.4 of the 1997 Act, it is clear that s.4A(b)(ii) is the only offence that adds anything new to the law or any real additional protection to victims of stalking. That said, organizations representing victims of stalking have welcomed the fact that stalking has been recognized as a specific crime, distinct from harassment, and they hope that this will increase the likelihood of the police and CPS taking action in cases of harassment and stalking that might, in the past, have been ignored.
Both the new s.2A and s.4A carry the same maximum sentence as s.2 and s.4, namely six months for ss.2 and 2A and five years for ss.4 and 4A, so, in terms of likely penalty, there is no specific reason why the police or CPS should prefer the new stalking offences to the existing harassment offences.
The new s.2A is peculiar in that it is parasitic on the existing s.2 offence and cannot be read separately from s.2. As is already the case with s.2, the defendant must pursue a course of conduct in breach of s.2, which means there must be conduct on at least two occasions that causes the victim “harassment, alarm or distress”, and the conduct can include speech. What is different is that the court must decide not merely that the defendant has pursued a course of conduct that caused harassment but also must decide that “the course of conduct amounts to stalking” (s.2A(1)(b)). In order to decide this, the court must decide that “the acts or omissions involved are ones associated with stalking” (s.2(2)(b)).
In order to convict, therefore, a court must be satisfied that:
This requirement that the prosecution prove (a), (b), (c) and (d) means that the new s.2A stalking offence is more difficult to prove than the existing s.2 offence, where the prosection only has to prove (a) (b) and (c) in order to obtain a conviction for s.2 harassment.
Section 2A(3) gives “examples of acts or omissions which in particular circumstances are ones associated with stalking”:
The wording of s.2A(3) makes it clear that this list is not exhaustive and it will be open to courts to look at other acts by a defendant and say that, in the particular circumstances, those acts constitute stalking even if they are not on the s.2A(3) list. It is likely that the High Court will regard decisions as to whether any particular acts are those “associated with stalking” as being a pure decision of fact for magistrates to decide on and will not accept any appeal based on the argument that a particular course of conduct should not be classed as stalking. That said, the more that a course of conduct includes elements not in the s.2A(3) list, the greater the likelihood that defence lawyers will argue that their client is guilty of harassment, not stalking.
The new s.4A(1)(b)(i) offence is basically identical to the existing s.4 offence and requires the prosecution to prove that:
Though it is not clearly stated in s.4A, it can be assumed that a court considering whether conduct “amounts to stalking” will follow the list set out in s.2A(3). As with s.2A and s.2, the new offence in s.4A(1)(b)(i) adds nothing to the existing offence in s.4, where the prosecution already has to prove (a) (b) and (c) to get a conviction under s.4 and will have to prove (a) (b) (c) and (d) in order to get a conviction under s.4A(1)(b)(i).
The choice between the two charges will probably depend on the nature of the course of conduct and there may be scope for defence lawyers to argue that a s.4 charge is more appropriate.
Section 4A(1)(b)(ii), however, creates a significant new offence which could fill an important gap in the protection offered to victims of stalking, because it applies where:
This new offence does not duplicate anything in the existing offences in the 1997 Act and fills an obvious gap between s.2 and s.4. Whilst many types of obsessive stalking can cause a fear of violence, this is often because the persistence of the stalker is, in itself, a source of concern; however, the stalker may avoid specifically threatening words or actions, which means that they can only be charged under s.2 even if the campaign of harassment has lasted many years and has had a devastating effect on the life and mental stability of the victim.
The new offence will fill that gap. The important elements in the new offence are that the course of conduct must cause “serious alarm or distress” and this must have a “substantial” adverse effect.
With these requirements, it is highly unlikely that a short campaign of stalking would qualify. Unlike the existing s.4 and the new s.4A(1)(b)(i), however, it is the cumulative effect of the stalking which is important and it does not require any particular incident in the stalking to be especially alarming or serious.
This is an important aspect of the new offence, since looking at the cumulative effect of stalking and indeed all harassment is what is important, rather than getting bogged down in the effect and nature of individual incidents.
With a potential sentence of five years’ imprisonment, s.4A(1)(b)(ii) could prove a significant charge if used wisely by the police and CPS. Defence lawyers will also need to be aware that there will be a lot of media and political attention attached to the use of the new offences and, therefore, where s.4A(1)(b)(ii) is charged, it is highly unlikely that the CPS will be willing to accept a plea to a s.2A offence.
For both s.4A offences, the defences are the same as for s.4 and, in the Crown Court, a jury can find a defendant not guilty of an offence under s.4A, but guilty under either s.2 or s.2A, in which case the maximum penalty will be six months’ imprisonment.
Anthony Mantova, 34, received an 18-week custodial sentence after pleading guilty to harassing Chloe Hopkins. Upon his release from prison, he broke an indefinite restraining order. He was jailed again for 28 days at Prestatyn magistrates’ court for harassment of Ms Hopkins and breaching his restraining order.
Twenty-eight days for breach of a restraining order so soon after release from prison is unsatisfactory. This case shows that new legislation is only the first step. It will also require raising awareness, changing attitudes, and better guidance and training for the police, CPS and the courts.
However, the volume of victims is so high that the police won’t be able to assist all of them. Consequently, there is a challenge to develop support, advice and tools that victims can use to protect themselves, especially on the digital front.
The Network for Surviving Stalking and Women’s Aid have issued the document Digital Stalking: a guide to technology risks for victims, which offers step-by-step safety advice. Safer-Settings.com is a new service designed to help protect victims who are being stalked or harassed via Facebook.
But we need more initiatives, more funding for support organizations and, most importantly, for industry to get engaged and offer not only resources but expertise.