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  • Rai Gill

What is Stalking?

There are two main offences relating to stalking which are contained within the Protection from Harassment Act 1997. Both of the offences are based off, and built upon, the underlying concept and offence of harassment – an article summarising harassment can be found here.


The Offences 


Stalking is not specifically defined by the Act, although subsequent cases have fleshed out a little more as to what may amount to an offence. The two main offences are “simple” stalking under section 2A, and more serious stalking where fear of violence is caused under section 4A.


For an offence under section 2A, the Prosecution would need to prove that:


  1. The defendant pursued a course of conduct against another person;

  2. The course of conduct amounted to harassment (see the harassment article);

  3. The acts, speech, or omissions that form the course of conduct are associated with stalking; and

  4. The defendant ought to have known that the course of conduct amounted to harassment of another person.


For stalking with fear of violence offence under section 4A, the Prosecution will have to prove that:


  1. The defendant pursued a course of conduct that amounted to stalking (as under section 2A);

  2. That the course of conduct caused another person to fear that violence would be used against them on at least two occasion: or

  3. That the course of conduct caused another person serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities; and

  4. The defendant knew or ought to have known that his course of conduct would either cause fear on each of those occasions or would cause alarm or distress.


Definitions


In order to understand what this all means, we need to look at the definitions of the important phrases.


Course of conduct – this where a person says or does something on two or more occasions against another person.


Ought to have known – this is an objective test, where a judge or jury must decide whether a reasonable person who had been in the same situation, knowing the same things, would have considered the conduct to have been harassment, or that the conduct would have caused another to fear violence or cause alarm or distress


Stalking – Case law has stated that the word “stalking” is to be taken in its ordinary meaning, i.e. in the sense that the average, reasonable person would consider it. The Act also provides some examples (which is a non-exhaustive list) which can be associated with stalking in specific circumstances, including:


  • Following a person;

  • Contacting a person;

  • Monitoring a person;

  • Loitering; and

  • Watching or spying on a person.


Sentence and Procedure


Stalking under section 2A (the lesser offence) carries a maximum sentence of six months’ imprisonment, or an unlimited fine, or both. It is a summary only offence and can only be tried in the magistrates’ court.


An offence under section 4A has a maximum sentence of 10 years’ imprisonment, or an unlimited fine, or both. The offence can be tried either in the magistrates’ court or the Crown Court, dependent on the circumstances of he case and the defendant’s decision of where or not to elect trial by jury.


Restraining Order


Where a person has been on trial for any of the above offences, the Court may, upon either an acquittal or a conviction, make a restraining order in order to protect the complainant (section 5A of the Protection of Harassment Act and section 360 of the Sentencing Act 2020). Breaching a restraining order carries a maximum sentence of five years’ imprisonment, or a fine, or both.


Stalking Protection Order


The police may also consider applying for a Stalking Protection Order using their powers under section 1(1) of the Stalking Protection Act 2019. This is generally considered in place of an individual being charged with a criminal offences.


In order to make the application, there must be a complaint made to demonstrate that the defendant has carried out the following:


  • has carried out acts associated with stalking

  • poses a risk associated with stalking to another person

  • there is reasonable cause to believe the proposed order is necessary to protect the victim (or other person(s)) from such a risk.


Any such application is made on notice in the magistrates’ court and a bundle is served by the police in support of their application. If following the hearing, a Stalking Protection Order is made, or an interim Order is imposed, the individual will be required to attend their local police station to provide their name and home address within a specified time (section 9 of the Stalking Protection Act 2019).


If the individual subject to the Order breaches any term of the Order or fails to comply with the notification requirement, without reasonable excuse, they are at risk of being liable on conviction to imprisonment for a maximum of five years.


Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.


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