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Meeting the Article 2 Operational Duty

In the second of a two-part article for Police Professional George Thomas and Cecily White examine procedures and safeguards that may assist in establishing an appropriate standard for the investigation of all stalking allegations following a review of the existing criminal and civil law relating to stalking.

The first part of this article summarised recent developments in both the criminal and civil law relating to the investigation of stalking allegations and the protection of victims. There is no doubt that both the public and the courts expect a more energetic and effective response than a small number of high-profile murders suggest may have sometimes previously been the case. This article considers some of the procedures and safeguards that may assist in establishing an appropriate standard for the investigation of all stalking allegations.

Recognition of the need for change

It is imperative that all police forces understand why stalking investigations have been prone to failure in the past, and – from a legal perspective – the types of changes that need to be made to fulfill the duty to protect the victim.

The stalker will often be highly motivated to avoid police interference. Regardless of personal, social or criminal background, the stalker may be, or may become, adept at counter-allegations, going to ground, appearing to have given up or changing tack to persecute his victim in a different way.

Unless the investigating officer can at least compete with – if not match – the stalker in determination and resourcefulness, failure is likely. Once an investigating officer has lost grip of, or enthusiasm for, the investigation, if the stalker does not go on to kill or seriously harm the victim, this may solely be down to good fortune: despite the police response, rather than because of it.

This is not a pessimistic assessment – the investigating officer ought to be a match for the stalker. He or she should be appropriately trained and experienced, and have the resources, support and expertise of a police force behind him/her. Crucially, from the outset, the investigating officer must be aware that they are already involved in a contest with a worthy opponent. Complacency may be fatal.

There needs to be both cultural and organisational change. This must start with the recognition that all stalking cases are inherently serious, and frequently lead to ever increasing risk and criminality if the police response is inadequate.

To satisfy the Article 2 Operational Duty in future, changes must be implemented in areas including:

  • training;
  • appointment of the investigating officer;
  • initial response and risk assessment;
  • supervision; and
  • disruption of stalking activity.


Online training is now available for all officers on the new stalking offences. As a minimum, all officers who may be involved in investigating stalking allegations should take this training. It seems likely that the forthcoming Home Office/Association of Chief Police Officers (ACPO) guidance on the new offences will provide specific recommendations – and a benchmark against which subsequent alleged police failures will be measured.

The investigating officer

An investigating officer must be appointed who has sufficient skill, experience and energy to handle the job. There is no reason in principle why the investigating officer need be a trained detective in all cases, provided all three criteria are met. Regardless of the qualifications of the officer initially appointed, it must be emphasised from the outset that there will be no shame in the officer acknowledging that he or she will need assistance in the investigation, and may need the appointment of a senior investigating officer (SIO) if the scope or seriousness of the investigation changes.

Initial response and risk assessment

Upon appointment, every investigating officer will immediately need to meet the victim, formulate an investigative plan and complete a structured risk assessment, including identifying risk indicators. This is not a bureaucratic, box-ticking exercise – these are tools to be applied. The plan and assessment should be followed, unless there are developments which suggest they should be adapted. It is almost inevitable that they will need to be regularly updated.

Provided these two documents are completed in an intelligent, meaningful way and then followed, the foundation for an effective investigation will be set.

In Van Colle, the House of Lords and the European Court of Human Rights (ECHR) identified a list of factors relevant to whether the operational duty on the police to intervene has been engaged. Although the list is focused on the harassment of a witness in criminal proceedings, it highlights the sorts of considerations that should generally be in the mind of the investigating officer:

  • The suspect’s criminal record and the extent to which it indicates a propensity to violence;
  • Whether the witness is the only or main witness in criminal proceedings and the value of his evidence to the prosecution as a whole;
  • The seriousness of the offence for which the suspect is being tried and any sentence likely to be imposed;
  • The nature and seriousness of the acts of intimidation, their intended target, and whether they are suggestive of violence or a threat to life; and
  • Whether these acts have been reported to the police.

This is not an exhaustive list.

The 2012 Independent Parliamentary Inquiry into Stalking Law Reform considered a detailed 2011 report from Napo, together with the S-DASH (Domestic Abuse, Stalking and Honour Based Violence) risk-assessment checklist. It identified that S-DASH, despite being recommended by Napo as being mandatory, was by no means universally implemented in stalking investigations. Following the S-DASH model, the Inquiry highlighted the following victim questions as particularly significant in assessing risk:

  • Q1 – Are you very frightened?
  • Q2 – Has the person engaged in harassment before (involving you and/or anyone else)?
  • Q3 – Has the person ever destroyed or vandalised your property?
  • Q4 – Does the person visit you at work, home, etc, more than three times per week?
  • Q5 – Has the person loitered around your home, workplace, etc?
  • Q6 – Has the person made any threats of physical or sexual violence in the current harassment incidents?
  • Q7 – Has the person harassed any third party since the harassment began (eg, friends, family, children, colleagues, partners or neighbours)?
  • Q8 – Has the person acted violently towards other people within the current stalking incidents?
  • Q9 – Has the person persuaded other people to help him/her (wittingly or unwittingly)?
  • Q10 – Is the person known to be abusing drugs and/or alcohol?
  • Q11 – Is the person known to have been violent in the past (physical or psychological)?

Pending the publication of formal guidance from the Home Office/ACPO, these matters should be routinely considered as part of a structured risk assessment. From the perspective of the Article 2 Operational Duty, it might be difficult to establish that the minimum standard of investigation or prevention had been met if the S-DASH or a comparable risk assessment were not followed.


In all the high-profile murders by stalkers in recent years where failures by the police have been identified, these have included a failure in supervision. In some cases, including Tania Moore and Arsema Dawit, the failure in supervision may have been as serious as the shortcomings of the investigating officer.

Regardless of the qualifications or experience of the IO, stalking cases require initial involvement of a supervisor, followed by regular, routine, intrusive supervision.

Initial involvement: input into and/or review of the initial investigation plan and risk assessment by the supervising officer is a simple way of maximising the chances of both ensuring a competent investigation is being commenced, and protecting the officers and the organisation should something go wrong, as it did in cases such as Osman, Smith and Van Colle.

Routine: the supervisor must not wait for the investigating officer to come to him with problems, or for the victim to challenge the progress of the investigation. If a structure for routine supervision is imposed from the start, the investigating officer will be encouraged to raise uncertainties or difficulties at this time, without any implied failure on the part of the investigating officer. This will also be an opportunity to ensure the investigative plan and risk assessment are being meaningfully applied and updated.

Regularity: escalation in the seriousness of stalker actions is a very common feature. The longer investigations are allowed to drift, the greater the misery and risk endured by the victim. Regular, effective supervision should prevent the investigation stagnating.

Intrusiveness: The supervisor is part of the investigatory team. He or she must have a good understanding of the case. Without this, the supervisor will neither have the necessary perspective, nor be able to suggest fresh approaches to the problem. The investigating officer must be asked why certain steps have been taken (or not taken), and be in a position to test the answers, not simply note them.


Arresting the suspect on suspicion of one of the offences in the Protection from Harassment Act 1997 (‘the Act’), should be considered an immediate and ongoing option in all stalking investigations.

The victim’s initial statement alone may, in some circumstances, constitute reasonable grounds. If it does not, sufficient corroborating evidence may not be difficult to identify, for example, by text or telephone messages, social media, etc.

As soon as reasonable grounds exist to suspect a stalking offence has been committed, the investigating officer (and supervisor) should challenge themselves over why the suspect is not being arrested. There may, of course, be very good reasons why arrest should be deferred, but if there are they must be balanced against the potential benefit of an early arrest.

Even if an arrest does not lead to a charge, it may dent the stalker’s sense of self-confidence and slow the escalation in subsequent stalking. The risk that it will do the opposite should, of course, be considered and catered for.

The activities of the stalker may be disrupted in other ways. The specific power of entry and search under s2B of the Act should routinely be considered. In cases where there is concern that the suspect is using the internet or mobile phone network to obtain information or for carrying out stalking, seizure and interrogation of the suspect’s computer and/or mobile phone is likely to be both a source of evidence as well as highly disruptive.

The police need to be aware of the victim’s right to seek a civil injunction preventing harassment. This right exists prior to conviction, and a potential restraining order. While the police cannot obtain an injunction on a victim’s behalf, in appropriate cases the victim should be advised to consult a solicitor, and be reassured that the police will provide evidence in support of an application.

Although beyond the scope of this article, consideration of the involvement of a multi-disciplinary team is essential. Multi-agency risk assessment conferences should be convened if there has been a restraining order or one may be sought.


The new offences should provide a fresh focus to the police response to stalking. Given the propensity for the risk of harm to escalate, there can be no room for complacency when the police receive a complaint of stalking.

The key to minimising risk and preventing escalation is to change the nature of the police response from a reactive investigation to proactive evidence gathering and disruption. This requires: 

  1. Early identification that the victim’s complaint fits the pattern of stalking;
  2. Early assignment of an appropriate investigating officer;
  3. A carefully constructed risk assessment;
  4. Formulation of, and following, an investigation plan;
  5. Routine, regular, intrusive supervision, which tests the risk assessment, plan and progress; and
  6. Disruption: via arrest, entry and search, etc.

This requires training for all officers, including supervisors. All officers must be encouraged to undertake the online training now available. The Home Office/ACPO guidance on the new offences is awaited. Civil claims will follow – and far more importantly, the lives and well being of victims will continue to be threatened – if the new regime is not energetically embraced.

This post first appeared as an article in Police Professional and is reproduced here by kind permission of the Editor.