STALKING AND HARASSMENT IN SCOTLAND
In Scotland, as in other jurisdictions, there has been extensive political, media and academic debate around the issue of stalking and harassment in recent years. The Protection from Harassment Act, which made harassment a statutory offence in England and Wales, was passed in 1997. While the 1997 Act included provisions relating specifically to Scotland, harassment was not made a statutory offence under Scots law. It was argued at the time that the common law crime new of breach of the peace was sufficient to cover such behaviour in Scotland.
The Crime and Disorder Act 1998 made provisions for anti-social behaviour orders (ASBOs). The Act gives local authorities power to apply to the sheriff for such an order against a person (aged over 16) where it can be shown that they have acted in an anti-social manner or pursued an anti-social course of conduct.
Concern about the Scottish criminal justice system's ability to deal with stalking and harassment continued to be expressed, however, and after devolution the new Scottish Executive announced in its first programme for government 1 that: " we will review the law by 2001 in relation to sexual and violent offenders, including harassment and in particular stalking."
In October 1999 2, Justice Minister Jim Wallace announced that the laws that tackle stalking in Scotland were to be reviewed to determine whether new legislation was required:
"In recent years there have been a number of cases that have hit the headlines and caused public anxiety. I think the time is right to look once again at the law in this area. I am therefore announcing a wide ranging review of stalking legislation and the way it is applied in Scotland. This may mean new legislation is required or it may mean making the existing law work better so that the authorities can intervene swiftly and effectively".
The following March, the Executive published a consultation document 3 seeking views on tackling this problem. The main options for change outlined in the consultation paper were:
Improving the procedures of the police, courts and Procurators Fiscal
Improving the application of the current law
Making changes to the current law
Creating a new statutory stalking offence
Key issues flagged in the consultation responses 4 included uncertainty about the remedies available and how these worked in practice; police powers in relation to breach of non-harassment orders made under the 1997 Act; the cost of access to civil law remedies; the amount of information on previous convictions available to the courts; and lack of information about the level of incidence of stalking and of research into the issue more generally.
Opening a debate 5 on stalking and harassment in the Scottish Parliament in January 2001, Jim Wallace set out proposals to strengthen the protection for victims in Scotland. These included:
- Early legislative proposals to add statutory powers of arrest to non-harassment orders
- Liaising with the police and judiciary to improve guidance and training and to clarify public understanding of this area of law
- Establishing pilot training schemes for lay advisers in women's refuges to assist victims with applications for interim interdicts
- Commissioning extensive research into the issues surrounding stalking behaviour in Scotland
This report describes the research that was undertaken. The main aims of the research were to:
- obtain information on the nature and extent of stalking and harassment in Scotland
- identify levels of public awareness of existing remedies to deal with cases
- examine perceptions and experiences of both victims of stalking and harassment and professionals involved in dealing with its consequences.
Since then, the Protection from Abuse (Scotland) Act 2001 has been passed by the Scottish Parliament and has been in force since February 2002. The 2001 Act deals with violent or abusive behaviour and allows the police to arrest without warrant an interdicted person where they have reasonable cause for suspecting that person is in breach of an interdict. The Act applies in all such cases, no matter the nature of the relationship with the potential abuser.
The Criminal Justice (Scotland) Bill 6 was introduced in March 2002 and is currently being considered in Parliament. The Bill contains provisions to strengthen the protection for victims of stalking and harassment, in particular to attach a power of arrest on breach of a non-harassment order 7.
LEGISLATIVE POSITION IN SCOTLAND 8
There is no legal or clear-cut definition of stalking and harassment in the UK, and the two terms are often used interchangeably. However, stalking and harassment is generally used to describe intentional repeated behaviour, which causes fear, upset and annoyance to the victim.
In Scotland there is no specific crime of stalking. Behaviour which might be construed as stalking or harassment is usually prosecuted under breach of the peace. As the following judgement indicates, breach of the peace covers a broad range of anti-social conduct:
' There is no limit to the kind of conduct which may give rise to a charge of breach of the peace. All that is required is that there must be some conduct such as to excite the reasonable apprehension to which we have drawn attention, or such as to create disturbance and alarm to the lieges in fact.' 9
In that specific case, the ' reasonable apprehension' was that mischief would ensue 10. Breach of the peace can be tried in the District and Sheriff Courts in Scotland. The maximum sentence available to the District Court is 60 days' imprisonment or a fine of up to 2,500. Where breach of the peace is prosecuted under summary procedure in the Sheriff Court, the maximum sentence is 3 months' imprisonment (6 months if a subsequent offence) or a fine of up to 5,000. More serious cases can be prosecuted under solemn procedure, which carries a maximum of 3 years' imprisonment of an unlimited fine. The sheriff can remit the case to the High Court for sentencing where a more stringent sentence (including life imprisonment) may be deemed appropriate.
Stalking and harassment may also amount to and be prosecuted in Scotland under the common law crime of threats. There are two classes of threats. The first includes threats to ' burn a man's house [...] to put him to death, or to do him any grievous bodily harm, or to do any serious injury to his property, his fortune, or his reputation.' The second class involves any other threat that does not amount to grievous bodily harm.
The Protection from Harassment Act 1997 provides for non-harassment orders, which can be obtained through criminal and civil procedures. Section 11 of the Act allows for the prosecutor in criminal proceedings to move for an NHO where the accused is convicted of 'an offence involving harassment of a person'. NHOs may also be granted on application of a victim via civil proceedings (see below).
Stalking and harassment may also come within the ambit of anti-social behaviour orders (ASBOs) which were introduced by the Crime and Disorder Act 1998. ASBOs are dealt with under section 19 of the Act, which gives the local authority the power to apply to the sheriff for such an order against a person (aged over 16) whom they can show has acted in an anti-social manner or pursued an anti-social course or conduct. Anti-social behaviour is defined as actions, including speech, that 'caused or was likely to cause alarm and distress', a definition which echoes the essence of the offence of breach of the peace 11. A course of conduct requires at least two incidences, and the behaviour in question must have been directed at a person or persons from a different household in the local authority area. In addition, the ASBO must be shown to be necessary to prevent further anti-social behaviour.
There are also remedies available for harassment in civil law. The Protection from Harassment Act 1997, in its application to Scotland, contains civil remedies with regard to protection from harassment. Under the Act, victims of harassment can take an action to the civil courts to obtain damages for the harassment, for example for any anxiety caused or for any financial loss. Furthermore, victims can also obtain a non-harassment order with the aim of preventing any further harassment.
Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, a court can grant an exclusion order which prevents a spouse from entering the matrimonial home where this is necessary to protect the other spouse (or any children of the family) from conduct which would injure them, either physically or mentally. Also, under the same Act, the court can grant a matrimonial interdict, which would restrain or prohibit the conduct of one spouse towards the other spouse or any children of the family. The interdict, which may also exclude one spouse from entering or remaining in the matrimonial home or in a specified area in the vicinity of the matrimonial home, may also have the power of arrest attached to it. The protection under the Act is limited to married couples only and ceases to have effect when the spouses divorce.
The provisions of the Protection from Abuse (Scotland) Act 2001 are designed to deal with violent or abusive behaviour and allow the police to arrest without warrant the interdicted person where they have reasonable cause for suspecting that person is in breach of an interdict. The protections offered under the Act are available to the applicant no matter the nature of the relationship with the potential abuser. In particular, the Act provides that the court must, under certain circumstances, attach a power of arrest to an interdict for the purpose of preventing abuse and sets out the circumstances and procedure under which a person can be detained.
LEGISLATIVE POSITION IN ENGLAND AND WALES
The Protection from Harassment Act 1997, in its application to England and Wales, not only contains civil remedies for protection from harassment, but also created new statutory criminal offences. Although the Act does not mention nor define stalking, it adopts a definition of harassment that includes behaviour that could be construed as stalking.
The Act makes a distinction between harassment that is violent and that which is not by creating two offences: the offence of harassment and the offence of putting someone in fear of violence.
Under section 2, a person who pursues a course of conduct (defined as more than one occasion) which amounts to harassment of another is guilty of an offence of harassment provided that they know or ought to know that it amounts to harassment of the other. Section 7 defines 'harassment' as 'alarming the person or causing the person distress' and also defines 'conduct' as including speech.
The maximum sentence for the offence of harassment is six months imprisonment and/or a level 5 fine (5,000).
Under section 4, a person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against them is guilty of the more serious offence of 'putting people in fear of violence', provided that the offender knows or ought to know that their course of conduct will have such a consequence on each of those occasions.
Where found guilty of such an offence, the perpetrator will face a maximum sentence of five years imprisonment and/or an unlimited fine.
The court can also make a restraining order prohibiting the defendant from doing anything described in the order.
The Protection from Harassment Act 1997, as with its application in Scotland, contains civil remedies for victims of harassment in England and Wales. Under section 3(1) if the court has made a restraining order, any breach of this may be the subject of a claim in civil proceedings by the victim.
A NOTE ON TERMINOLOGY
Throughout this report, the terms 'stalking' and 'stalking and harassment' are used interchangeably. There is no clear and agreed definition of what stalking consists of, and to impose one would inevitably restrict the scope and usefulness of the work. What is obvious is that stalking is a form of harassment - but this does not mean that the two terms are synonymous. While all stalking may involve an element of harassment, not all harassment could be said to involve stalking, since the latter is almost invariably focused on a personal relationship (real or imagined, ended or on-going) between offender and victim.
For the purposes of survey measurement, questions asking directly about experience of 'stalking' were avoided in the course of the survey - not least because many victims would have been unlikely to recognise the applicability of the term to them. Questions drew instead on the formulation developed for the BCS in England & Wales, which asked about experience of 'persistent and unwanted attention' and gave examples of the type of behaviour that might be involved.
The research had four main components:
- A review of existing literature relating to the prevalence and characteristics of stalking, its impact and the legislative responses to it in different jurisdictions.
- A nationally-representative survey of the adult Scottish population (n=1024), carried out in respondents' homes by interviewers using Computer Aided Personal Interviewing (CAPI). This drew heavily on a set of questions developed as part of the British Crime Survey in England & Wales to determine the extent of 'persistent and unwanted attention' but also to collect basic quantitative data about the nature and impact of stalking behaviour.
- A series of qualitative interviews with victims of stalking, some of whom were identified from the quantitative survey described above, with the remainder drawn from the records of three Scottish Police Forces - Grampian, Tayside and Dumfries & Galloway.
- A series of qualitative interviews with practitioners within (or linked to) the criminal justice system. While the majority of these interviews were with police officers, they also included interviews with solicitors, fiscals, sheriffs and representatives of organisations such as Women's Aid and Victim Support Scotland.
Further details on each of these aspects of the work are included in the relevant sections of the report and a more detailed overview of the research methodology can be found at Appendix A.
STRUCTURE OF THE REPORT
The report is structured as follows.
- Section B summarises the main issues emerging from the literature review. These are broadly organised under four main themes: what is stalking?; what is known about stalking?; how is stalking currently dealt with in Scotland and other jurisdictions?; and what are the current issues?
- Section C provides an overview of the results from the survey of the general public. In particular, this examines public perceptions and awareness of the concept of stalking; the prevalence and patterning of 'persistent and unwanted attention'; and the characteristics of cases and offenders.
- Section D uses the qualitative interviews with victims to examine in detail experiences of stalking and to shed further light on the form of such behaviours, its impact and typical responses to it.
- Section E provides a perspective from practitioners and explores perceptions of how such cases are and should be policed, the adequacy of current criminal justice responses and the need for changes in legislation and/or operational practice.
- Section F summarises the main themes emerging from the study and draws out some of the possible implications for policy and practice.