What is meant by ‘stalking’?
Two new offences of stalking were created by the Protection of Freedoms Act 2012, which meant new Sections 2A (Stalking) and Section 4A (Stalking involving fear of violence or serious alarm or distress) were inserted into the PHA 1997.
The new offences came into force on 25 November 2012. They are not retrospective.
Is there a legal definition of ‘stalking’?
No. There is not a strict legal definition in place, and this is part of why it is so vital that you contact our stalking solicitors so that we can advise whether you are indeed guilty of any offence.
However, Section 2A (3) of the PHA 1997 gives examples of acts, or omissions, which – in certain circumstances – are ones associated with stalking. These include:-
(a) following a person,
(b) contacting, or attempting to contact, a person by any means,
(c) publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person,
(d) monitoring the use by a person of the internet, email or any other form of electronic communication,
(e) loitering in any place (whether public or private),
(f) interfering with any property in the possession of a person,
(g) watching or spying on a person.
Note: The examples given in Section 2A (3) do not form an exhaustive list but suggest the types of behaviour which may indicate a stalking offence.
In addition, it should be noted that the effect of such behaviour is to inhibit a person’s freedom such that they always feel they have to give careful thought to what they do.
Although often the stalking behaviour may appear to be innocent (when taken in isolation), it is the repeated nature of such acts which might cause significant alarm, harassment or distress to the victim.
How does the Section 4A offence differ from the above?
The elements of the more serious Section 4A offence are as follows:-
- a course of conduct;
- which amounts to stalking; and
- which causes another to fear, on at least two occasions, that violence will be used against him or her; or
causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities
The Section 4A offence can be committed in two ways, according to CPS guidance notes:-
- a course of conduct that amounts to stalking and causes the victim to fear, on at least two occasions, that violence will be used against them (which is similar to the existing section 4 offence).
- a course of conduct which causes “serious alarm or distress” which has a substantial adverse effect on the day-to-day activities of the victim. This limb recognises the overall emotional and psychological harm that stalking may cause to victims, even where an explicit fear of violence is not created by each incident of stalking behaviour.
Evidence of a ‘substantial adverse effect’ may include the following (although this is not an exhaustive list):-
(a) the victim changing their routes to work, work patterns, or employment;
(b) the victim arranging for friends or family to pick up children from school (to avoid contact with the stalker);
(c) the victim putting in place additional security measures in their home;
(d) the victim moving home;
(e) physical or mental ill-health;
(f) the deterioration in the victim’s performance at work due to stress;
(g) the victim stopping /or changing the way they socialise.
What other legislation covers offences relating to stalking and harassment?
Guidance issued by the CPS reminds prosecutors that stalking and harassment behaviours could mean that other legislation applies, as follows:-
- the Protection from Harassment Act 1997;
- the Offences Against the Person Act 1861;
- the Sexual Offences Act 2003; and
- the Malicious Communications Act 1988.
All relevant legislative powers should be taken into account before a charging decision is made.
What defences are there to a charge of stalking?
As regards the Section 2A offence, CPS guidance is as follows:-
“If the suspect is able to show that any of the defences to harassment under section 1(3) of the PHA are made out, he or she can not be guilty of stalking as without harassment there can be no conviction for stalking.”
As regards the Section 4A offence, there are the following statutory defences if the defendant can show that:-
- the course of conduct was pursued for the purpose of preventing or detecting crime;
- the course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or
- pursuit of the course of conduct was reasonable for the protection of him or herself or another or for the protection of her, his or another’s property.
If you are charged with, or investigated for, this offence, it is vital that our stalking solicitors review the whole case and advise whether a defence exists.
What sentencing powers do the courts have for stalking?
Stalking (Section 2A) is a summary only offence, which means it can be tried in the magistrates’ court. As the sentencing powers of the magistrates’ court are limited, the maximum penalty for this offence is 6 months’ imprisonment and/or a level 5 fine.
However, stalking involving fear of violence or serious alarm or distress (Section 4A) is an either way offence, which means it can be tried in the magistrates’ or crown court, depending on the seriousness of the offence. This carries a maximum of five years’ imprisonment and/or a fine on indictment.