In the first of a two part article for Police Professional George Thomas and Cecily White examine how recent legal developments make a review of the existing criminal and civil law relating to stalking timely.
The murder of a victim by their stalker is a poignant tragedy. Unlike most homicides, in many cases of murder by stalker the police are already aware of, and are investigating, allegations made by a specific victim or group of victims against the eventual killer. The conclusion that effective police intervention could have prevented the death is often difficult to resist. All too frequently there has been a missed opportunity to intervene, with the urgent need to do so only identified in hindsight. For every murder, there are numerous stalking cases where victims have suffered significant physical or psychological harm due to a tardy or inadequate response by the police.
The need to ensure that all stalking allegations are effectively investigated and victims protected has become increasingly apparent over recent years. In 1998, the European Court of Human Rights (ECHR) first established that the police would be potentially liable for a breach of Article 2 of the Convention where a known victim of stalking has come to serious harm or been killed (Osman v UK).
The 2012 Independent Parliamentary Inquiry into Stalking Law Reform led to the creation of two new offences dealing with stalking, which came into effect on Sunday, November 25, 2012. Also last month, the decision of the ECHR in the Van Colle case has confirmed the legal threshold for liability on the part of the police in stalking cases.
These two recent developments make a review of the existing criminal and civil law relating to stalking timely. This article provides a brief summary of these recent developments.
Criminal law: The new stalking offences
The two new offences of ‘stalking’ are introduced into the Protection from Harassment Act 1997 (‘the Act’) by s111 of the Protection of Freedoms Act 2012.
Section 2A of the Act creates the offence of ‘stalking’, a summary only offence. Section 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.
Under s2A, a person is guilty of an offence if they pursue a course of conduct in breach of s1(1) of the Act that amounts to harassment and where that harassment also amounts to stalking. As with harassment, the new offence does not have a specific definition of stalking. Section 2A(3) of the Act gives examples of acts that “in particular circumstances, are ones associated with stalking”:
- following a person;
- contacting, or attempting to contact, a person by any means;
- publishing any statement or other material – relating or purporting to relate to a person, or 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; and
- watching or spying on a person.
Harassment that includes one or more of the above features is not automatically stalking. The course of conduct, assessed in the round, must fit the generally received interpretation of the word ‘stalking’.
The more serious offence, triable either way, is s4A – ‘stalking involving fear of violence or serious alarm or distress’. This offence is committed where a person commits a s2A stalking offence, 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; and
- 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 s4A stalking offence are slightly narrower than for s2A stalking or s2 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.
There is also a new power of entry and search for the s2A offence. Under s2B of the Act, a magistrate may issue a warrant of entry and search, provided they are satisfied that there are reasonable grounds for believing that:
- an offence under s2A 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, does not consist of privileged, excluded or special procedure material, and
- either entry to the premises will not be granted unless 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.
Civil liability when the police have failed to prevent harm: The operational duty
A superficial awareness of the ECHR decision in the recent case of Van Colle might suggest that the potential for civil liability following failure to prevent stalkers killing or seriously harming their victims is limited. This is not the case. It should be anticipated that the greater onus on protecting the victims of stalking, in part due to the new offences, will increase the prospects of successful claims being brought in future.
This section addresses:
- the ‘core principle’ providing immunity in the suppression or detection of crime;
- Osman v UK (1998);
- Van Colle v UK (2012); and
- Smith v Chief Constable of Sussex Police (2008).
Core immunity
Hill v Chief Constable of West Yorkshire [1988] 1 QB 60 is the well-known case brought by the mother of the last murder victim of Peter Sutcliffe. It was alleged that, due to negligence by officers in the ‘Yorkshire Ripper’ investigation, Sutcliffe remained at large for longer than he ought to have been and that the West Yorkshire police were accordingly liable for the death of the final victim, which would have been prevented by a competent investigation.
The House of Lords confirmed that no actionable duty of care was owed by the police to potential victims of crime. No duty was owed to the victim, both because Peter Sutcliffe had not been identified and because she was at no greater risk than any other female member of the public. Further, it was held that it would not be fair, just or reasonable to impose a duty of care on the police, as the existence of such a duty had the potential to undermine the efforts of the police in the detection and prevention of crime. This was a decision fundamentally founded in public policy. More recently, in Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495, the House of Lords has confirmed the principle:
“A retreat from the principle in Hill’s case would have detrimental effects for law enforcement. While focusing on investigating crime and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim, time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim.”
Osman v UK
Osman v United Kingdom (1998) 29 EHRR 245 contains the ECHR’s formulation of the test to be applied in cases where a person’s Art 2 right to life is said to have been breached due to police inactivity. It creates a clearly defined exception to the Hill core immunity.
The ECHR held that to find there was an actionable breach of Article 2, a court must be satisfied of two matters:
- that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party; and
- that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
The first limb has come to be described as the ‘operational duty’ on the police to take steps to preserve the life of the identified individual. In formulating the second limb, the ECHR expressly rejected the suggestion that the test incorporated notions of either gross negligence or willful disregard of the Article 2 duty.
The test has been applied in the domestic courts over the past 14 years in a variety of factual situations. In Van Colle, the victim’s relatives sought to challenge the way in which the Osman test has been applied by the domestic courts.
Van Colle v UK – ‘An escalating situation of intimidation’
Giles Van Colle was an optometrist who was to give evidence for the prosecution against his former employee, Daniel Brougham, at the latter’s trial on theft charges.
Between July and November 2000, Brougham threatened and/or offered bribes to each of the witnesses on a series of occasions, some, but not all of which, were reported to the police. On one occasion, Mr Van Colle’s car was set on fire but he did not report the incident. On another, Brougham telephoned Mr Van Colle and said words to the effect of, “I know where you live. I know where your businesses are and where your parents live. If you don’t drop the charges, you will be in danger”, a threat which Mr Van Colle did report.
Brougham then telephoned Mr Van Colle again, asking him to get the other witnesses to drop the charges. Mr Van Colle reported the matter and at approximately 3pm on November 22, 2000, a detective constable (DC) spoke to him and arranged a meeting for the following day to take a statement. Later that day, Mr Van Colle was shot dead by Brougham as he left work.
In June 2003, a police disciplinary panel found the DC guilty of failing to perform his duties in connection with the intimidation of Mr Van Colle. The panel considered that the events had amounted to an “escalating situation of intimidation” and the DC had “the fullest picture of the developing situation”. He had failed to investigate whether offences of witness intimidation had been committed, to identify possible links between events, and to consider the power to arrest Brougham when there had been sufficient evidence to do so.
UK proceedings: Lowering the Osman threshold?
Mr Van Colle’s parents brought a claim against the chief constable of Hertfordshire Constabulary under the Human Rights Act, claiming damages for a breach of Article 2 of the Convention (A further complaint under Article 8 was ultimately held not to raise any separate issue).
(i) High Court
In 2006 the High Court concluded that the police had failed to discharge their positive obligation under Article 2 to take operational measures to protect the life of Mr Van Colle, whose life was at risk from the criminal acts of another individual.
The High Court considered that the threshold of risk under Article 2 had been crossed. In doing so, it concluded that the threshold established in Osman that the authorities knew or ought to have known at the time of a “real and immediate risk” to the life of the identified individual was “too high”. Where the conduct of a state authority had itself exposed a person to a risk to his life, for example where that person was required to be a prosecution witness, and was thus entitled to expect a reasonable level of protection, the court held at [91] that:
“If there is a risk on the facts, then it is a real risk, and “immediate” can mean just that the risk is present and continuing at the material time, depending on the circumstances.”
(ii) Court of Appeal
In 2007 the Court of Appeal unanimously rejected the chief constable’s appeal, agreeing with the High Court on the application of the Osman test. In doing so, their Lordships appeared to expand the scope of the ‘operational duty’ under Article 2, finding at [94]:
“In short we do not disagree with the judge’s conclusion, which was consistent with that of the [panel], that the police should have taken action to protect Giles. They should have known that there was a real risk to his life and that the risk was and would remain immediate until the date of Mr Brougham’s trial. In these circumstances they should have done all that could reasonably have been expected of them to minimise or avoid the risk […] The judge was correct to hold that the police were under a duty to take preventive measures in relation to Giles and that they were in breach of that duty and therefore acted incompatibly with Giles’ right to life under Article 2 of the Convention.”
(iii) House of Lords
In 2008, the House of Lords unanimously allowed the chief constable’s appeal. It was found that the lower courts had misdirected themselves in considering that a witness was in a special category of persons at risk, and treating the Osman test as lowered in such a case. The Osman test was not a variable standard. Lord Bingham clarified the central question at [39]:
“The question is whether, making a reasonable and informed judgment on the facts and circumstances which were or should have been known to him at the time, he should have apprehended such violence. The fact that Giles was a witness in a forthcoming Crown Court trial was of course a relevant fact, but not one of great weight having regard to the minor character of the charges and the unlikelihood of a severe penalty. Approaching the matter in this way, and applying the standard Osman test, I cannot conclude that the test was met in this case. “
(iv) ECHR judgment
In November 2012, the ECHR agreed with the House of Lords that the Osman test was not a variable standard and had not been met on the facts of the case. The Chamber concluded at [103]:
“Accordingly, while it ought to have been known to [the DC] that there was an escalating situation of intimidation of a number of witnesses, including Giles Van Colle, by Mr Brougham, the court does not consider that it can be said that there was a decisive stage in the sequence of events leading up to the tragic shooting of Giles Van Colle when [the DC] knew or ought to have known of a real and immediate risk to the life of Giles Van Colle from Mr Brougham.”
Importantly, the court was not persuaded that, even if the DC had made further enquiries, and discovered the probable link of Brougham to all the fires, as well as the intimidation of other witnesses, this additional knowledge should have led him to perceive Brougham’s activities as life-threatening for Mr Van Colle. There was a “substantial difference” between such intimidation and the shooting dead of a minor witness. His conduct could therefore not be impugned from the standpoint of Article 2.
Smith v Chief Constable of Sussex Police
Smith concerned threats which had been made by Mr Smith’s former partner, Mr Jeffrey, by telephone, text message and internet over a period of two months. The threats had been numerous, at times up to 15 messages per day. They were explicit and included death threats. Mr Smith contacted Sussex Police on several occasions to inform them of the nature of the threats and to provide Mr Jeffrey’s contact details. No action was taken against Mr Jeffrey. He went on to assault Mr Smith at his home with a claw hammer, causing fractures of the skull and brain damage.
Mr Smith sued Sussex Police for failing to intervene, alleging that effective intervention would have prevented the attack on him. However, he failed to start his claim within the one year limitation period required for claims under the Human Rights Act. He could only purse a claim in negligence. His negligence claim failed due to the Hill ‘core principle’ protecting “the police function of investigating and suppressing crime in the public interest”.
As Mr Smith could not bring an Article 2 claim, he could not take his case to the ECHR. However, had Mr Smith brought an Article 2 claim in time, it seems likely on the facts of that case that he may have been successful in recovering compensation under the Osman test. The failure of the Van Colle case in Europe should not mask this.
In future cases where, like Mr Smith:
- a member of the public has provided clear evidence to the police that he/she (or an identifiable other person) is the victim of a stalker;
- the identity of the stalker is known, or could be ascertained;
- there are threats, intimations or a history of violence; or
- there is an identifiable escalation in the seriousness of the behaviour, or risk associated with it;
- there will be an expectation (at the very least, by the civil courts) that the police will intervene. If the police do not intervene and serious harm or death results, then there is every chance that the police will be found liable.
Exposure to civil liability does not stop here. While the infamous stalking claims have typically garnered publicity because of the eventual killing of the victim, civil claims will not be confined to Article 2 (right to life). In a sufficiently serious, non-fatal case, the victim will have a potential claim under Article 3 (freedom from inhuman or degrading treatment), or even possibly Article 8.
Pending Home Office/Association of Chief Police Officers (ACPO) guidance on the new offences, next week’s article will address practical steps the police can take to meet the operational duty to protect identifiable victims of stalking.
This post first appeared as an article in Police Professional and is reproduced here by kind permission of the Editor.
Part 2 of this article will consider the minimum standards of investigation/ supervision that the civil courts are likely to expect in those cases where the police response has been insufficient to prevent death or serious harm.