From Sunday 25 November 2012, two new offences have come into existence in England and Wales relating to stalking. There is also a new power of entry and search for the summary stalking offence.

The offences are introduced into the Protection from Harassment Act 1997 by s.111 of the Protection of Freedoms Act 2012.

Section 2A of the Protection from Harassment Act 1997 (‘the Act’) creates the offence of Stalking (a summary only offence), while s.4A creates the offence of “Stalking involving fear of violence or serious alarm or distress”, triable either way. The new offences do not criminalise behaviour that was previously lawful, but are targeted at the particular type of harassment that also constitutes stalking.

What Constitutes Stalking?

The new offence of stalking is a sub-class of the existing offence of harassment. Under s.2A a person is guilty of an offence if they pursue a course of conduct in breach of s.1(1) , and where that course of conduct amounts to stalking.

Section 1(1) – and the offence of harassment under s.2 – is committed when a person pursues a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment. “Harassment” is not defined, but includes alarming the person or causing the person distress. There are three particular defences:

  • conduct pursued for the purpose of preventing or detecting crime,
  • conduct pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
  • where in the particular circumstances the pursuit of the course of conduct was reasonable.

Under s.2A, an offence of harassment constitutes stalking if it amounts to harassment, the acts or omissions involved are ones associated with stalking, and the defendant/suspect knows or ought to know that the course of conduct amounts to harassment of the other person.

What are the extra acts that turn mere harassment into stalking? As with harassment, the new offence does not have a specific definition. In s.2A(3) examples are given of acts that “in particular circumstances, are ones associated with stalking”. These statutory examples, albeit not exhaustive, are very wide. They are :

  • following a person,
  • contacting, or attempting to contact, a person by any means,
  • publishing any statement or other material— (1) relating or purporting to relate to a person; or (2) 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.

However, it must be emphasised that harassment that includes one or more of the above features is not automaticallystalking. The course of conduct must still fit the generally received interpretation of the word. Equally, despite how broad the statutory examples are, conduct might constitute stalking, even though it did not include actions in any of the above categories.

Section 2A Stalking

The above explanation includes all the ingredients of the s.2A offence. As it is a pre-requisite for the offence of stalking that the course of conduct is also harassment, the statutory defences to harassment in s.1, as set out above, will also constitute defences to stalking.

The s.2A offence is triable only summarily. The maximum sentence is 51 weeks, or a level 5 fine or both.

Section 4A Stalking involving fear of violence or serious alarm or distress

This offence is committed where a person commits s.2A stalking, and in addition the course of conduct either:

  • causes the victim to fear, on at least two occasions, that violence will be used against her/him, or
  • causes the victim serious alarm or distress which has a substantial adverse effect on her/his usual day-to-day activities.

There is the additional mental element that the defendant/suspect must either know, or ought to know that his course of conduct will cause the victim to fear violence on each of those occasions, or that the course of conduct will cause alarm or distress. Sections 4A(2) and 4A(3) provide that the “ought to know” test is an entirely objective test. It will be satisfied if “a reasonable person in possession of the same information” would know that fear of violence, or serious alarm or distress would be caused.

The statutory defences available to a s.4A stalking are slightly narrower than for s.2A stalking or s.2 harassment. The prevention/detection of crime and fulfilling of a legal requirement defences are worded in the same way. However, the reasonable conduct defence is limited to such conduct as was reasonable for the protection of the defendant/suspect or another, or for the protection of the defendant’s/suspect’s or another’s property.

A jury is entitled to acquit on a s.4A charge but convict of the lesser s.2 offence.

On conviction, the maximum sentence for a s.4A offence is 5 years’ imprisonment and/or a fine in the Crown Court, and 12 months’ imprisonment and/or a fine at the statutory maximum in the Magistrates’ Court.

Power of Entry and Search for a Section 2A Offence

Under s.2B, a Magistrate may issue a warrant of entry / search, provided they are satisfied that there are reasonable grounds for believing that:

  • an offence under s.2A has been, or is being, committed, and
  • that there is material on the premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence, and
  • the material is likely to be admissible evidence, and include privileged, excluded or special procedure material, and
  • either entry to the premises will not be granted without a warrant is produced, or the purpose of a search may be frustrated or seriously prejudiced unless immediate entry is gained by the officer who attends.

Similar provisions to search warrants issued under other enactments apply.

Guidance

While technically these new offences add little to the core elements of the offences of harassment / harassment with intend to cause fear of violence, they mark a significant step forward in how the Government expects the police, the CPS and other agencies to tackle stalking, and how they are to approach the issuing of warning notices, cautions and charging and the enforcement of injunctions / restraining orders.

The Government and ACPO are due to issue updated joint guidance on the policing of both the new stalking offences and also ‘straightforward’ harassment. No specific timescale for circulation of this guidance has yet been given, but we will provide a link to the guidance when it becomes available.