The Government has introduced two new criminal offences aimed at stalking. Section 111 of the Protection of Freedoms Act 2012 came into force on 25 November 2012.
Stalking is a phenomenon that has received considerable media attention in recent years with prominent and high profile cases of police inaction where women have been left exceedingly vulnerable. A parliamentary inquiry earlier this year found that about 120,000 victims, mostly women, were stalked every year.
However, only 53,000 incidents are recorded as crimes by police – and only one in 50 of these reports lead to an offender being jailed.
An Independent Parliamentary Inquiry into Stalking Law Reform considered the effectiveness of existing legislation and reported in February 2012. In his foreword to the report, the Rt Hon Elfyn Llwyd MP stated that:
“The Protection from Harassment Act 1997 was a landmark piece of legislation, but the view of nearly all those giving evidence was that it was not an effective tool against stalking and that too many perpetrators were falling through the net. As the author of a Home Office evaluation of the Act written in 2003 observed, ‘the Act is being used to deal with a variety of behaviour other than stalking including domestic and inter-neighbour disputes and rarely for stalking itself.’”
We are bombarded with media reports of stalking behaviour from celebrity sufferers to Facebook abusers. Some are more tragic than others.
In 2005, Michael Pech began stalking Clare Bernal after their three week relationship ended. Pech followed her in the street, pestered her with phone calls/texts, and stood outside her house.
One day he followed her from work and blocked her getting off the train. She told him to leave her alone or she would call the police. He told her “if you dare report me I will kill you” and “if I can’t have you, nobody will”. He was charged under s 2 of the 1997 Act and breached bail on a number of occasions. Whilst awaiting sentence he went back to Slovakia and purchased a gun. On his return, Pech walked up behind Clare at her place of work and shot her in the head before turning the gun on himself.
Clifford Mills was convicted this year of murdering his ex-partner Lorna Smith. He had stalked his ex-partner via Facebook under an assumed name before killing her.
Section 111 of the Protection of Freedoms Act 2012 introduces two new offences of stalking. Section 2A creates the basic offence of stalking and consists of two elements: (i) the person pursues a course of conduct; and (ii) the course of conduct amounts to stalking.
A course of conduct which amounts to stalking is defined as: (i) amounting to harassment; (ii) the acts or omissions involved are ones associated with stalking; and (iii) the person knows or ought to know that his course of conduct amounts to harassment of the other person.
Stalking is deliberately left undefined and a non-exhaustive list of examples of conduct amounting to stalking is provided. The list includes: (i) following a person; (ii) contacting or attempting to contact a person; (iii) publishing any statement or material relating or purporting to relate a person/purporting to originate from them; (iv) monitoring a person’s internet usage, email or other electronic communication (eg cyber-stalking through social media websites); (v) loitering; (vi) interfering with property; and (vii) watching or spying on a person.
Section 4A creates the more serious offence of stalking involving a fear of violence or serious alarm or distress. There are three elements to this offence: (i) a person pursues a course of conduct amounting to stalking and either: (a) causes another to fear, on at least two occasions, that violence will be used against B; or (b) causes another serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities; and (ii) the person knows or ought to know that his course of conduct will cause another to fear violence on each of those occasions or will cause such alarm and distress. The test for (ii) above is whether a reasonable person in possession of the same information would think the course of conduct would have such an effect.
What is striking is that, albeit stalking is explicitly referenced in the legislation, the penalties mirror the original 1997 Act offences which provide for a maximum of five years imprisonment where there is “fear of violence”. The new legislation does nothing to increase the penalty. Whilst we have adopted the Scottish approach to stalking by bringing in almost identical legislation, arguably it changes very little.
This new legislation coincides with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which allows for an extended sentence where the offender is considered to be “dangerous” and the custodial term would merit four years. This would allow an offender at the upper end of the range to be monitored for up to five years on licence.
Is it a question of enforcement? The Parliamentary Inquiry heard evidence from both PAS and Napo in their studies of both victims and perpetrators published in November and December 2011 shows that most stalkers commit multiple breaches of restraining orders over their criminal careers. Examples submitted to the inquiry show that some perpetrators breached their order at least five times or more but still received either a non-custodial sentences or were fined. The Inquiry took the view that the courts do not take these offences sufficiently seriously, or alternatively that patterns of behaviour are not detected. There is, however, a definitive guideline on breaching restraining orders, albeit between 12 months and five years offers little in the way of guidance allowing the punishment to be tailored to the individual facts.
Criminalising “stalking” rather than harassment takes these crimes away from the side-show of neighbour disputes. What is questionable is the maximum penalty. The harm that is caused by these offences, years of mental distress, living in fear for the safety of partners and children, is simply not reflected in the sentence that can be imposed. Arguably, the harm that is caused is just as great as the victim of a robbery or a threat to kill, both of which offer stiffer penalties.
Of course, judges are not mind readers and we simply cannot predict whether someone will prove to be harmless or homicidal. Labelling “stalking” as different will perhaps effect a culture change in how we approach and deal with these types of offence but it falls seriously short of what pressure groups and victims have been asking for.