More symbol than substance - Stalking: new changes to the law
in England and Wales
The Facts
The Government responded to extensive lobbying from stalking victims and charities by
introducing amendments to the Protection of Harassment Act 1997. The relevant
clauses were added to the Protection of Freedoms Bill which gained royal assent on 1st
May 2012. Its provisions concerning stalking came into effect on 25th November 2012.
The changes to the law are modest, but of symbolic significance. Those who drafted the
Protection from Harassment Act 1997, which was specifically introduced to deal with
stalking, judged that it was preferable to use the term harassment, rather than stalking,
and that the types of behaviour which could constitute harassment should not be
explicitly stated. The new amendments to the Act have the effect of reversing this state
of affairs.
The Protection from Harassment Act had introduced two criminal offences of
harassment. The less serious section 2 offence, pursuing a course of conduct
amounting to harassment, is a summary one, triable only in a magistrate’s court, where
the maximum prison sentence which can be given is six months. The more serious
section 4 offence (putting a person in fear of violence) is “triable either way” (in the
Crown Court or a magistrate’s court) and has a maximum prison sentence of five years.
Activities which would constitute stalking should theoretically fall within these broader
offences. However, the provisions of the Act were underused, and it was argued that
the police had no clear concept of stalking, and therefore limited understanding of the
issue, because there was no specific offence of stalking in law.
The amendments to the Protection from Harassment Act introduce two new offences of
stalking, which sit alongside those of harassment: a section 2a offence of stalking and a
section 4a offence of stalking involving fear of violence or serious alarm or distress. The
penalties under the new sections 2a and 4a are the same as those for the pre-existing
sections 2 and 4 harassment offences. The new section 2 offence largely duplicates the
old one, but is slightly more onerous to prove, in that, in addition to satisfying the criteria
for the offence of harassment, the acts or omissions involved must be ones "associated
with stalking". As well as introducing the term stalking, the amendments to the 1997 Act
give for the first time a (non-exclusive) list of behaviours that are associated with
stalking.
There are two new powers that have been introduced. Firstly, in addition to the section
4 offence of putting a person in fear of violence, there is a second offence available
under section 4A(1)(b)(ii) concerning a course of conduct which has caused the victim
"serious alarm or distress which has a substantial adverse effect on usual day-to-day
activities". Secondly, there is a new power which allows the police to apply to a
magistrate for a search warrant under the section 2 offences, which had not previously
been available.
Theseus Partners LLP Mall House The Mall Faversham Kent ME13 8JL T +44(0)20 7060 5041
Theseus LLP is a UK registered partnership no.OC348688
www.theseusllp.com
Theseus Opinion
There are few behaviours covered by the new sections which could not be prosecuted
under the pre-existing sections of the Act. And the new offences largely duplicate the
old. However, the new offence under section 4A(1)(b)(ii) should allow those who have
caused a devastating effect through a long campaign of harassment, but who have not
previously fallen within the section 4 provisions, to be prosecuted under section 4,
which carries more serious penalties, rather than under section 2.
The greatest impact of the new amendments is likely to be symbolic. It is hoped that the
new powers will have a considerable effect on the number of people charged and
convicted under the Act. The fact that the crime is now named and that sample stalking
behaviours are included in the new amendments is intended to bring about a
fundamental change in the way that stalking is conceived of amongst police and other
agencies within the criminal justice system. In effect, stalking now exists as an offence,
even though the powers to deal with it remain largely unchanged.
To be convicted of stalking is likely to carry greater social stigma than being convicted
of harassment. It is possible that this may have some deterrent effect, but it is also likely
that defendants will contest stalking charges in court or plea bargain, seeking instead to
be convicted of harassment.
Also of note is that specific mention is made in the list of behaviours associated with
stalking of "monitoring the use by a person of the internet, email or any other form of
electronic communication". And the new search powers under section 2 will make it
easier for police to seek computer evidence. This updates the 1997 legislation to the
networked age.
Contact Us
For further information on our services visit our website at www.theseusllp.com. For a
confidential discussion email us on [email protected] and a member of our operations team
will contact you, or call +44 (0)20 7060 5041.
Theseus Partners LLP Mall House The Mall Faversham Kent ME13 8JL T +44(0)20 7060 5041
Theseus LLP is a UK registered partnership no.OC348688
www.theseusllp.com