Following reports about the seven year ordeal suffered by Lily Allen, stalking is back in the mainstream media. Most people will be familiar with the term ‘stalking’. Unfortunately, familiarity can breed contempt: many people, including, significantly, many Police Officers, still either fundamentally misunderstand what stalking is, or fail to appreciate how serious a problem it presents for our society. As a result, many victims receive poor advice and little, if any, protection.
What is ‘stalking’? Is it the same as harassment?
The words ‘stalk’ and ‘harass’ have been in use for hundreds of years. To ‘harass’ originally meant to wear out, or to trouble or vex someone by repeated attacks, whereas to ‘stalk’ meant to pursue someone without being seen. Some might see stalking as a specific form of harassment, with the latter being effectively an umbrella term. Others might use them interchangeably. Since at least the 1980s, both words have been used colloquially to describe a pattern of obsessive behaviour where one person repeatedly contacts or follows another. Early awareness of such behaviour tended to focus on ex-lovers, or would-be lovers, who could not accept that their love was unrequited. Films such as Play Misty for Me, Fatal Attraction and Single White Female may have contributed to this particular idea of stalking.
Until the mid-1990s there was no criminal or civil law in England and Wales which specifically dealt with stalking: perpetrators may have been prosecuted by the state, or sued in the civil courts by their victims, if the individual acts which they committed amounted to offences, or wrongdoings, in and of themselves (for example, actual bodily harm, malicious communications, public order offences, or trespassing). Early attempts to legislate specifically against stalking were rejected, in part because of the difficulty in defining such behaviour, in part because it was felt that there were a relatively small number of victims, and finally, because it was hoped that pre-existing offences were sufficient to safeguard them.
That changed with the introduction of the Protection from Harassment Act 1997 which made it an offence and a civil wrongdoing in England and Wales to ‘pursue a course conduct which you know or ought to know amounts to harassment of another’.
The Act provides that said ‘conduct’ must involve at least two distinct occasions, and can include speech. It states that harassment includes causing alarm or distress, but does not attempt to define it beyond that. The Courts have since added that the conduct must be ‘oppressive and unreasonable’ (Thomas v News Group Newspapers Ltd  EWCA Civ 1233). The Act did not set out a list of behaviours, whether proscriptive, or indicative, that could form part of the course of conduct. The position therefore is that any series of behaviour, including acts which viewed in isolation would be considered lawful, might amount to harassment, if they had the effect of causing alarm or distress. In practical terms, a defence only arises where, in the particular circumstances, the course of conduct was objectively reasonable (there are other defences, but these will seldom apply). The Act also introduced a more serious offence of ‘harassment likely to cause fear of violence’ which is essentially the same offence, but where the conduct causes the victim to fear that violence will be used against them, and the perpetrator knew or ought to have known that their conduct would cause this fear.
Although the Act was brought about specifically to tackle the menace of stalking, the word ‘stalking’ did not originally feature at all, and none of the acts most commonly associated with stalking, such as physically following someone, were described in the Act or specifically prohibited. This was, perhaps, because Parliament was keen to ensure that they did not rule out less obvious behaviours which might equally be capable of causing alarm and distress. Such an approach might be said to have been vindicated by the fact that a whole host of activities have since been held to amount to harassment, many of which had likely not been considered when the Act was drafted (examples include the operation of a website that invited the publication of abusive/negative comments about solicitors, and false/malicious complaints to professional bodies). Others, however, considered that the Act’s failure to specifically refer to stalking was letting victims down: there appeared to be a prevailing feeling that there was a systemic failure to prosecute cases of stalking, and people hypothesised that this might be precisely because the Act was so widely drawn.
In response to this, the Government introduced a ‘new’, specific offence of stalking in the Protection of Freedoms Act 2012. Thus, it is now an offence to ‘pursue a course of conduct which you know or ought to know amounts to harassment of another, and where the conduct amounts to stalking’. Stalking is not specifically defined, but a series of indicative behaviours are listed. These are: –
- Following a person
- Contacting, or attempting to contact, a person by any means
- Publishing any statement or other material (i) relating or purporting to relate to a person, or (ii) purporting to originate from a person
- Monitoring the use by a person of the internet, email or any other form of electronic communication
- Loitering in any place (whether public or private)
- Interfering with any property in the possession of a person
- Watching or spying on a person
Critics of this legislation would argue that, in practical terms, this new offence adds nothing to the pre-existing harassment offence: (1) you cannot be guilty of stalking if you are not guilty of harassment, (2) there is no definitive list of what behaviour amounts to stalking and, (3) the sentencing powers in respect of harassment and stalking are the same. The counter-argument would be that the particular phenomena of stalking was sufficiently prevalent and serious enough to warrant an offence in its own right, even if for no other reasons than to raise awareness of it and make it easier to collate data about it (an analogy might be the offences of assault, and assaulting a police officer).
A further offence, of ‘stalking involving fear of violence, or serious alarm or distress’, was also introduced. The first limb of this offence effectively mirrors that of ‘harassment likely to cause fear of violence’, save that the behaviours involved must be associated with stalking. In respect of that element therefore, the same question as to whether this is really a new offence at all arises. The second limb, however, takes the law further than before. That provides that it is an offence to engage in a course of conduct amounting to stalking which causes serious alarm or distress which has a substantial adverse effect on the person’s usual day-to-day activities. Home Office Circular 018/2012 states that such effects may include: –
- The victim changing their routes to work, work patterns or employment
- The victim arranging for friends or family to pick up children from school (to avoid contact with the stalker)
- The victim putting in place additional security measures in their home
- The victim moving home
- Physical or mental ill-health
- The victim’s deterioration in performance at work due to stress
- The victim stopping or changing the way they socialise
The Circular also notes that although some victims will continue their existing routines in defiance of the stalker, they may still be able to demonstrate a substantial adverse effect. With this offence, it might be said that the Government has made provision for those particularly serious or unusual cases.
So, with a whole series of criminal offences now in place to combat stalking, what is the effect on the ground? Figures published by the Crown Prosecution Service, and extrapolated by Paladin, the National Stalking Advocacy Service, show that there were 9,792 prosecutions for harassment, and 743 for stalking, in 2013/14. This is about 16% of the total allegations recorded by Police in the period. Of course, victims do not necessarily go to the Police to complain about the specific offences of ‘harassment’ or ‘stalking’, but rather complain about what they are experiencing, therefore it may be impossible to distinguish between the two at that level. What we do know is that prosecutions for stalking are arising in only 1% of complaints about the broader category of behaviour. Of those convicted of the stalking offences in 2013 (and that number will inevitably be somewhat lower than the figure for those charged), Paladin reports that only 20% received an immediate sentence of imprisonment.
So, why do the statistics appear so bad, and why do high profile individuals like Lily Allen report that, notwithstanding their profile, they feel they were failed by the Police?
- Focusing on individual acts, and not the course of conduct, or the effect on the victim
As will be clear from the above, there is no easy way to define harassment or stalking. However, this ‘difficulty’ is arguably something of a red herring: legislators have deliberately written the law as widely as possible, in order to avoid the issue. Our experience is that too many police officers and lawyers still start their analysis by looking at the individual acts the perpetrator is committing. By way of examples, our clients frequently report the Police as having said ‘he’s not actually doing anything to you’, ‘there’s no law against shopping in Tescos’ or, ‘we do have freedom of speech’.
All of these statements miss the point: the harassment/stalking legislation is not about individual acts, it is about a course of conduct.
Perhaps the most instructive approach is as follows:-
- To consider whether the course of conduct is causing the victim alarm or distress; and if it is
- To consider whether, instinctively, the conduct – taken as a whole – appears to be reasonable.
Thus, the questions to be asked are whether it is reasonable to follow someone when they are going about their day, whether it is reasonable to do your food shopping five miles away from where you live, simply because you know someone else shops there, or whether someone leveling an allegation against someone for the 100th time is simply exercising ‘freedom of speech’.
- Lack of faith in victims, and the Criminal Justice System
The courses of conduct pursued by stalkers often involve a variety of behaviours. Some will appear relatively innocuous, and the stalker will often carry these out openly, confident that people will see nothing remarkable. Others will be more overtly criminal, and the stalker will often try to cover their tracks in the way that ‘conventional’ criminals do. Joining the dots can be difficult from an evidential perspective, but again, this is often something of a red herring. If there is good evidence that the victim is being harassed in one way, or has been harassed in the past, there is often a logical inference that the same person is responsible. Yet Police often appear more willing to believe that a person is paranoid, or severely unlucky, than that they are being targeted. Even if the Police do believe the victim, they, or the Crown Prosecution Service, often take the view that the Courts will not. It is a curious reality of the Criminal Justice System – which criminal practitioners will recognise – that some categories of offending seem to precipitate a different understanding of the standard of proof than others. A person will be convicted if their guilt is beyond reasonable doubt: this does not mean, and has never meant, that there has to be some independent, incontrovertible proof. Indeed, other types of offending are often prosecuted on the strength of the victim’s testimony alone; sadly not always so for stalking.
- A failure to understand how serious it is
There is also the lingering feeling that the police do not take stalking or other forms of harassment seriously. The fact that there are huge numbers of allegations relating to harassment and stalking made to Police each year ought to underline the fact that it is a very serious issue for society, and that we need a more proactive response, and greater public awareness. Unfortunately, the reverse sometimes seems to be true: allegations which are common are dismissed as minor, and will rarely be prioritised by a stretched police force. The police are also too well aware that there is a civil remedy (see below) and victims are often told to “see a solicitor” and/or “get an injunction”.
- Over-reliance on ‘harassment warnings’
As Rachel Horman, the chair of paladin, pointed out in her recent Guardian article on this topic, there is an argument that the Police have been too quick to issue Police Information Notices (‘PINs’), referred to colloquially as ‘harassment warnings’. PINs do not represent any finding of fact against the recipient: the purpose of a PIN is to make the recipient aware that their alleged conduct may amount to harassment. So, to use a straightforward example, if John had been repeatedly texting his ex-girlfriend Cynthia, and claimed not to realise, or have any reason to believe, that this was causing her distress, the Police may decide to issue John with a PIN. If John then continued to text Cynthia, the fact that he had been issued with the PIN might be relied upon as evidence as to his state of mind in any subsequent prosecution. They are a good idea in some cases, and indeed, lawyers can make representations to Police on behalf of our clients that a PIN should be issued. However, there is a feeling that some Police forces now go through the process of issuing a PIN even where the alleged harassment/stalking is of a very serious nature, and there is sufficient evidence and justification for an immediate prosecution. Equally, the fact that a PIN can be issued does not mean that an allegation should not be investigated thoroughly. Only once an investigation has taken place, can an informed decision be made about whether the issuing of a PIN would be appropriate. It is not uncommon to hear about people being given PINs without ever having been properly spoken to, or interviewed, about the allegations against them.
- The civil route: an expensive last resort
As mentioned earlier, the Protection from Harassment Act simultaneously creates both a criminal offence and a civil wrongdoing. This is unusual. By way of contrast, whilst you can sue a burglar for trespass to your goods and/or property, the underlying law is not the same. In the case of harassment, the civil courts are dealing with the same beast as their criminal counterparts, and whilst the burden and standards of proof are of course different, decisions about what amounts to harassment, and what is reasonable etc. will often have cross-applicability.
Unfortunately, those lawyers who deal with harassment in a civil context are usually a world away from the representatives of the Crown who are regularly prosecuting cases in front of local magistrates:. The caselaw that there is is rarely referred to in the criminal courts. It would be treated extremely seriously by a civil judge, but is given short shrift in a world where serious offending is routine, and the acts of a stalker, wrongly focussed upon, appear less severe than those of other criminal defendants. Moreover, few people can afford to sue for harassment. Even assuming the claim is handled in the county court, and using the slimmed down procedure provided for by Part 8 of the Civil Procedure Rules, legal costs and court fees are still likely to run into tens of thousands of pounds. Even if the victim has those funds (and most will not), it is likely that their stalker will not, and therefore they must decide whether they wish to spend their life savings on pursuing a remedy which offers no guarantee of their objective. Although a civil injunction can, in theory, be policed in a similar way to a Restraint Order made by the criminal courts, this must be done by the victim, thus entailing the spending of yet more money. Very few police officers understand all this. Many will know that there is a theoretical option, and nothing more. This confuses some into thinking that harassment is a ‘civil problem’, or among the more sophisticated, that there is less public interest in the prosecution of harassment offences. Indeed, many of those who work for charitable and advisory organisations are also ill-aware: they often believe that ‘harassment injunctions’ can be obtained relatively cheaply and routinely, in a similar manner as the Family Courts’ Non-Molestation Orders. There is no such thing as a ‘standalone’ harassment injunction. One is committed to taking proceedings to trial.
In fact, civil proceedings, or even the threat of civil proceedings, can provide a viable alternative, particularly in the early stages, for some victims. But a lack of joined up thinking means that they often do not get the advice they need. A good harassment practitioner ought to be able to advise a person, based on experience, whether the problem they are facing is one in which police involvement might be desired or essential and, if the police response has been inadequate, to offer to make representations, or a complaint to the Police
This post originally appeared on the Brett Wilson website and is reproduced with permission and thanks