COMMENT Protection from Harassment Act 1997: The ‘New’ Stalking Offences Judith Gowland* Keywords Stalkers; Prosecuting stalking as assault; Prosecuting stalking as harassment; Stalking behaviour; Victims of stalking On 25 November 2012 yet another amendment to the much maligned Protection from Harassment Act 1997 came into force in that ‘stalking’ was, for the first time ever, explicitly criminalised. This followed various amendments that have been made over the years to a piece of legislation that has long been criticised for its shortcomings.1 The Protection from Harassment Act 1997, which took effect on 16 June 1997, shortly after the Labour Party swept to victory in the General Election, had been introduced at great speed by a Conservative government desperate to win a General Election where all parties knew it was important to be seen as being ‘tough on crime and tough on the causes of crime’.2 Many of the drafting problems may be attributable to the speed at which the Act was rushed through, but the decision to avoid using the word ‘stalking’ in an Act designed chiefly to deal with this particular problem was quite deliberate. This decision has since given rise to various campaigns either to legislate specifically against stalking or, alternatively, to bring stalking within the ambit of the anti-harassment legislation. Some 15 years on, the latter has finally occurred with the enactment of the Protection of Freedoms Act 2012. Stalking is now expressly said to be a form of behaviour that can form a course of conduct that gives rise to alarm or distress, thereby falling within the ambit of the Protection from Harassment Act. Before assessing the value of this recent legislative amendment, it is necessary to examine why it was felt necessary to make this change, and in so doing, consider the background to the Protection from Harassment Act 1997 and its strengths and limitations. It should be noted that although this Act also provides for civil proceedings, this commentary will focus purely on the extent to which the criminal law in relation to stalking has been affected.

Stalking prior to the Protection from Harassment Act 1997 Prior to the Protection from Harassment Act, stalking victims had to seek redress by persuading the Crown Prosecution Service to prosecute a * Senior Lecturer, Northumbria University; e-mail: judith.gowland@northumbria. ac.uk. 1 Significant amendments were made by the Criminal Justice and Public Order Act 2001 and the Serious Organised Crime and Police Act 2005, which expanded the remit of the offence and the police powers respectively. 2 Labour Party General Election Manifesto 1997.

The Journal of Criminal Law (2013) 77 JCL 387–398 doi:10.1350/jcla.2013.77.5.865

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particular, individuated aspect of the stalking behaviour that comported to the definitional elements of another bespoke offence. By way of illustration, obscene phone calls could be prosecuted under the Telecommunications Act 1984; harassing letters could be dealt with under the Malicious Communications Act 1988; a broken window could be simple criminal damage; a break-in could amount to burglary; a black eye could be an assault. The chief drawback with this approach was that something quite obvious and objectively serious needed to have taken place before charges could be brought, albeit that such conduct might still not reflect the gravamen of egregious conduct that had been engaged. To an extent, this was alleviated slightly by the cases of R v Constanza3 and R v Ireland and Burstow,4 both cases that reinterpreted the somewhat antiquated Offences Against the Person Act 1861 to ensure that stalkers could be prosecuted under non-fatal offences. In relation to Constanza, the Court of Appeal decided that an assault did not necessarily require a physical action. In this particular case, the defendant had written letters, made silent phone calls and loitered outside the complainant’s home and place of work. It was also decided that the requirement that the victim apprehend imminent personal violence was rather stringent and was therefore relaxed to include a ‘fear of violence at some time not excluding the immediate future’.5 A matter of months later, in the case of Ireland and Burstow, it was decided that the phrases ‘assault occasioning actual bodily harm’ and ‘causing grievous bodily harm’ could include situations where psychiatric harm had been caused by indirect means such as the sending of letters and making of telephone calls; the result being that the stalking victim did not have to await a physical beating before a prosecution could be brought.6 Whether or not psychiatric harm had actually occurred, the extent of that harm, and whether it was caused by the offending behaviour was a matter for expert opinion.7 For many commentators, the decisions in these two cases resulted in the courts stretching the concept of assault and bodily harm too far,8 albeit it brought about a just outcome by convicting three 3 4 5 6 7

[1997] 2 Cr App R 492. [1997] 4 All ER 225. R v Constanza [1997] 2 Cr App R 492, per Scheimann LJ. R v Ireland and Burstow [1997] 4 All ER 225. R v Chan-Fook [1994] 2 All ER 552 at 559 CA, per Hobhouse LJ: ‘In any case where psychiatric injury is relied upon as the basis for an allegation of bodily harm, and the matter has not been admitted by the defence, expert evidence should be called by the prosecution. It should not be left to be inferred by the jury from the general facts of the case.’ And again at 559, per Hobhouse LJ: ‘In the absence of appropriate expert evidence a question whether or not the assault occasioned psychiatric injury should not be left to the jury. Cases where it is necessary to allege that psychiatric injury has been caused by an assault will be very few and far between’; at 560, ‘There is no reason for refusing to have regard to psychiatric injury as the consequence of an assault if there is properly qualified evidence that it has occurred’. 8 For example, see C. M. V. Clarkson, H. M. Keating and S. R. Cunningham, Clarkson and Keating Criminal Law: Text and Materials, 7th edn (Sweet & Maxwell: London, 2010) 565: ‘This whole approach adopted by the House of Lords is misguided and involves stretching the existing concept of assault too far’. See also A. P. Simester, J. R. Spencer, G. R. Sullivan and G. J. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine, 4th edn (Hart Publishing: Oxford, 2010) 440: ‘Psychiatric injury

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very determined stalkers who would otherwise have avoided liability. One might therefore be forgiven for concluding that after a little judicial intervention, the stalking victim was already adequately catered for, but in the absence of a specific anti-stalking law, there were considerable limitations. The primary problem encountered when dealing with stalking as an assault, or malicious communication, or whichever other bespoke offence is most appropriate, is what Emily Finch describes as ‘fragmentation’.9 This occurs when the stalking behaviour is broken down into individual incidents so that they can each be viewed as separate, discrete offences. There are two aspects to this problem, both affecting the victim. The first issue is that by focusing on individual incidents the ‘totality of the ordeal suffered by most stalking victims’10 is overlooked. This is borne out by reading the personal accounts of stalking victims who often make it clear that it is the behaviour ‘as a whole’ that has resulted in the trauma, rather than each individual incident. Closely linked to the issue of the totality of the conduct is the persistent nature of the conduct. Persistence is one of the hallmarks of stalking behaviour and for many victims it is the ongoing nature of the attention, rather than each individual act in isolation, that is so distressing. Once it becomes clear to the victim that the behaviour is more than just a ‘one off’, the uncertainty of knowing when the next incident is going to occur is every bit as painful as the incident itself. Unless this persistence forms part of the charge, the victim is being sold short and the stalker is being sent the wrong message in relation to inculpatory behaviour, in that he has only crossed a line into criminal liability and he therefore needs to step back behind it, rather than desist entirely. This supports the longestablished theory that stalkers can learn how to avoid prosecution by slowly pushing the boundaries until they know how far they can go before incurring liability.11 Furthermore, the particular elements of certain offences can prove a barrier to prosecution, such as the particularised offence within s. 47 of the Offences against the Persons Act 1861. If one considers the elements of s. 47, they require an assault that occasions ‘actual bodily harm’. Since the case of Ireland and Burstow, it has been accepted that actual bodily harm can include psychiatric harm provided it has been diagnosed by a psychiatric professional.12 A stalker

9 10 11

12

may have devastating consequences but it is different from physical injury. Policing the causing of psychiatric injury by way of nineteenth-century laws focused on matters physical is not the way forward’. For a more detailed exploration of ‘fragmentation’, see E. Finch, The Criminalisation of Stalking: Constructing the Problem and Evaluating the Solution (Cavendish Publishing: 2001). Ibid. at 172. ‘You learn what not to do. I didn’t know that sending her stuff through the post was illegal. I mean, I knew it was wrong but not that I could get nicked for it. I was gutted when I got arrested so I soon stopped doing that and, get this, when I thought of taking photos of her, I asked [the police] first if it were criminal and when they said ‘no’, I knew I was on a winner. It worked as well. Drove her round the bend’—Case history 38, taken from Finch, above n. 9 at 15. R v Ireland and Burstow [1997] 4 All ER 225 at 233, per Lord Steyn: ‘I would hold that “bodily harm” in sections 18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness’.

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who is closely monitoring his victim may stop short of that level, and maintain a pattern of behaviour that simply serves to irritate and upset, thereby avoiding liability. A further criticism was that in the absence of a specific anti-stalking provision, the various existing offences had created a gap in liability where the stalker engages in innocuous behaviour that appears to be entirely lawful, but for the context—the obvious example being the stalker who sends flowers every day to a woman who has rejected him. To ignore these concerns is to ignore what lies at the very heart of stalking, and this is obsession. Many stalkers are so obsessed with their target that they will work around the existing laws to ensure that they can continue to stalk for as long as possible in order to maximise the distress to their victim whilst remaining beyond the reach of the criminal law. It was for this reason that the Protection from Harassment Act 1997 was ultimately enacted. Prior to the Protection from Harassment Act, and as stalking cases were starting to attract increasing media attention, the Labour Party introduced and supported the Stalking Bill 1996 which criminalised stalking and provided a list of examples of stalking behaviour so that it could easily be recognised.13 The Bill was ultimately dismissed due to concerns that on one hand it was too broad, in that it may lead to the criminalisation of otherwise lawful behaviour such as journalistic inquiry, but on the other hand, it was too specific as it provided a comprehensive list of stalking behaviour and a ‘catch all’ clause that included any similar behaviour.14 The provision of a list prevented the flexibility that was so vital to stamping out stalking, which by its very nature was context dependent and incapable of being definitively listed. It was clear that the focus would have to shift to the effect of stalking, rather than the stalking behaviour itself.

Protection from Harassment Act 1997 Due to the above-mentioned concerns, s. 1 of the newly drafted Act simply referred to ‘harassment’ which was to be subjectively assessed. If a victim had suffered harassment, whatever the context, be it quarrelling neighbours or more traditional notions of stalkers, then there would be the potential for criminal liability. The Act described harassment as causing a person to suffer ‘alarm or distress’, both terms that would appear to be straightforward and certainly capable of encompassing the emotional impact of stalking.15 It is here that we find the appeal of the Protection from Harassment Act 1997. The focus is very much upon the reaction of the victim, rather than the behaviour of the offender. It would seem that this provides an obvious solution to the problem of 13 The Stalking Bill was introduced by Janet Anderson MP, see HC Deb, 6 March 1996, vol. 273, cols 370–1. 14 Although the Bill was blocked in the House of Commons, it was reintroduced by Lord McIntosh in the House of Lords in June 1996 and similar arguments regarding whether specific anti-stalking legislation was required were again rehearsed—see HL Deb, 12 June 1996, vol. 572, cols 1817–28. 15 Protection from Harassment Act 1997, s. 7(2).

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listing and thereby limiting harassing/stalking behaviour, but it can immediately be criticised for creating a lack of certainty in the law. It is undoubtedly unsettling to have criminal liability rest on the reaction of the victim, which is an unknown quantity, but surely this is inevitable given the nature of the offence. Since stalking can involve a limitless range of behaviour, from completely innocuous to outright blameworthy, then there has to be some form of filter to decide who should be criminally liable. The alternatives are to focus on the intent of the perpetrator, or the reaction of the victim. To criminalise only those who intended to cause alarm and distress is to ignore the vast majority of stalkers who are incapable of appreciating that their behaviour is unwelcome, either because they are blinded by their depth of feeling or because they are delusional. The alternative is to criminalise only those who cause their victim to feel harassed. To take the latter certainly casts the net as wide as possible, but the Act imposes further requirements so that simply feeling harassed is not the sole determiner of liability. The first requirement is that the behaviour in question amounts to a ‘course of conduct’, which is defined in s. 7(3) as conduct on at least two occasions. The courts have been fairly generous when it comes to the timings between the incidents.16 It stands to reason that incidents that happen in close succession may not necessarily count as separate incidents, and that the further removed in time the second incident is, the less likely it is to count as a course of conduct. For many stalking cases, the timing requirement is easily satisfied as stalking generally involves repetitious behaviour. Difficulties can, however, occur in on/off relationships where what would otherwise constitute a course of conduct, is often considered a routine aspect of a difficult relationship.17 Once a course of conduct has been established, the prosecution must identify a nexus between the incidents.18 This can be somewhat more problematic, as switched-on stalkers will try to keep their incidents as random as possible to avoid any form of pattern emerging, thereby forcing the victim to suffer several incidents before a clear nexus is established. Having established that the behaviour amounts to a course of conduct, the focus then turns to the state of mind of the offender. According to s. 1(1) of the 1997 Act, the defendant must know, or ought to have known that his behaviour would cause harassment.19 It is clear that the first part of the mens rea poses little concern, as those who knowingly intend to cause harassment are surely the most culpable and deserving of liability, but the inclusion of those who ‘should’ have known the 16 Kelly v DPP [2002] EWHC 1428 (Admin)—three telephone calls within five minutes, all of which were recorded on an answering machine and listened to in one sitting, held to amount to a course of conduct. 17 R v Curtis [2010] 3 All ER 849 at 857, per Pill LJ: ‘The spontaneous outbursts of illtemper and bad behaviour, with aggression on both sides, which are the hallmarks of the present case, interspersed as those outbursts were with considerable periods of affectionate life, cannot be described as such a course of conduct’. 18 R v Lau [2000] Crim LR 580. 19 Protection from Harassment Act 1997, s. 1(2): ‘For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other’.

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effect of their behaviour is certainly problematic. This returns us to the need for certainty within the law. Already the defendant’s liability rests on an unknown quantity in the reaction of the victim, and in addition he is now to be judged by an objective, arbitrary standard of what he ‘should have known’. In the absence of a list of sample behaviour, there is no clear indication from the outset as to what sort of behaviour will meet this standard, so how will he know to keep within the law? Furthermore, if he is convicted, then in addition to any sentence imposed for his behaviour to date, he could face a restraining order which, if breached, is likely to attract a further spell in custody. A term of imprisonment seems a rather harsh outcome for an ‘unknown crime’, but it should be noted that there is a defence of reasonableness built into the Act.20 This should afford protection for defendants who unwittingly have been causing distress through their legitimate actions, such as bailiffs or undercover police officers. What it does not provide is any protection for genuinely misguided or mentally ill individuals who simply do not appreciate that their behaviour might be unwelcome. Such a person will potentially find himself on the wrong side of the law, but is this the risk we have to take, the compromise we have to make if we are to retain the flexibility of the Act and provide protection for victims who suffer the same harm regardless of the culpability of the offender? The answer was handed down in the case of R v Colohan,21 where the Court of Appeal made it clear that if they were to interfere with the objective test of reasonableness by making allowances for illness or other characteristics, this would essentially water down the protection that the Act afforded. In Colohan, the defendant, who suffered schizophrenia, had been convicted under s. 2 as he had written a number of letters to his local Member of Parliament containing threats of violence.22 On appeal, he argued that the practice of endowing the hypothetical reasonable person with the same relevant characteristics as the defendant, as was the procedure in provocation (as it was then) and duress should apply to the s. 1(2) test, and accordingly, in assessing whether his behaviour was ‘reasonable’ under s. 1(2), the jury would need to take into account his schizophrenia. In dismissing this argument, the Court of Appeal stated that the aim of the Act was to protect victims in situations where it was not unusual for the perpetrator to be suffering from some form of mental illness, and to exclude liability on this basis would undermine the protection afforded by the Act.23 It is 20 Protection from Harassment Act 1997, s. 1(3)—this provides a defence where the course of conduct has been in order to detect or prevent crime, pursued in accordance with an enactment of law, or where it was reasonable in all the circumstances 21 R v SPC [2001] EWCA Crim 1251. 22 Ibid. at [2], per Hughes J: ‘The letters were rambling and in many places incoherent. They demonstrated an obsessive concern about a number of real or imaginary local issues. They also, however, contained a measure of abuse and some material capable of being construed as threats of violence and/or death directed to the Member of Parliament to whom they were sent’. 23 Ibid. at [19], per Hughes J: ‘We are satisfied that to give the Act the construction for which [defence counsel] contends would be to remove from its protection a very large

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therefore clear that the objective test is here to stay, regardless of the unfairness it may bring about. As observed by Emily Finch, who has written extensively on this subject, there are three different types of stalkers—mad, bad and sad— and they all display different motives for their behaviour and therefore require a different response from the law, yet whether they are brought to book is entirely dependent upon an unknown quantity, namely the reaction of the victim.24 It follows that a sad stalker, who repeatedly sends letters of unrequited love to the object of his affections, may cause a nervous individual to become completely paranoid and afraid to leave the house, whereas a more robust individual may simply dismiss his letters along with the junk mail. In the first scenario, the hapless lover has become a stalker and could face imprisonment and a restraining order, but in the second scenario there is no liability whatsoever. In terms of certainty of the law, this results in a most unsatisfactory position, but this is inevitable given the fact that stalking is a contextdependent crime. The only common feature in amongst all of the complaints is that the behaviour is always unwelcome, persistent and causes distress. If we bear this in mind, then it is inevitable that liability must always depend upon the reaction of the victim, and there must always be more than one incident of behaviour. Assuming all of these requirements have been met, in that there has been a course of conduct, which has caused harassment, and the perpetrator knew, or ought to have known it would cause harassment, then liability can follow. There are then two alternative offences. The first offence is s. 2 which makes it an offence to pursue such a course of conduct, punishable by a maximum of six months’ imprisonment or a fine not exceeding level 5. It can be seen that in many stalking cases, this low threshold for liability is easily met. The second, and more serious offence, is s. 4 which prohibits a course of conduct that causes the victim to fear on at least two occasions that violence will be used against her, and the offender must know, or ought to know, that his victim would have that fear. This offence carries a maximum of five years’ imprisonment. It is the gulf between these two offences, both in terms of the enhanced level of fear required by the victim and the resulting sentence for the offender, which gives rise to the majority of concerns about the Protection from Harassment Act 1997. This is by no means a new or recent insight and it was raised before the Act even came into force. In Ireland and Burstow in 1996, Lord Steyn considered how the case might be approached under the new law and flagged up the difficulties of cases that may fall somewhere in between the two offences.25 In many stalking cases, the behaviour is too serious to merit s. 2, but it falls short of meeting the very high threshold of s. 4 which requires a fear that violence will be used on two occasions. All too often, the victim fears that her stalker may use violence, but as no violence has taken place as number of victims and indeed to run the risk of significantly thwarting the purpose of the Act’. 24 Finch, above n. 9 at 281. 25 R v Ireland and Burstow [1997] 4 All ER 225 at 228.

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yet, she does not know for certain that it will. Even if the victim fears her stalker will use violence, she has to demonstrate that she had that fear on two separate occasions. This puts the victim in the unenviable position of having to suffer at least one act of violence, so that she knows for certain that he will use violence again, before her tally of two incidents can even begin. Rather than await such a fate, many stalking victims may pursue their complaint via s. 2, simply to ensure that they can secure a restraining order as quickly as possible, albeit at the cost of a much shorter period of imprisonment for their tormentor. It is clear that the low threshold for s. 2 is a double-edged sword in that it may be easy to reach, but as such, it can become the safe option for the prosecution in cases where really the s. 4 offence may be more appropriate, but a conviction is not assured. Furthermore, the prosecution may often choose to dismiss minor incidents, albeit that they clearly give rise to a s. 2 offence, in favour of threats of violence which clearly demand their attention. This creates a Catch 22 situation for the stalking victim—does she suffer the behaviour until it reaches the point where she can easily demonstrate fear of violence on at least two occasions and the police are bound to respond, or does she run to the police with more trivial behaviour which may well be brushed aside as a mere ‘domestic’? It is doubtful that the parliamentary draftsmen ever envisaged such a situation, but this is the reality of the Act, albeit that of course some fault lies with poor policing of low-level harassment which is rarely taken as seriously as it should be. Due to these concerns, in 2011, an independent parliamentary inquiry was launched to consider whether the existing measures designed to prevent stalking were in need of reform.26 The inquiry heard evidence from victims, legal practitioners and experts. The conclusion was unsurprising. It was felt that the Protection from Harassment Act 1997 was not fit for purpose: Victims, along with a number of professionals who gave evidence also made it clear that the breadth of the Act is its weakness rather than its strength . . . a neighbour arguing about a hedgerow was wholly different from when one person fixates on another and hence a specific offence of stalking was required.27

There was also widespread concern amongst those giving evidence to the inquiry that the failure by the authorities to enforce restraining orders and adequately punish their breach was compounding the problem.28 In the absence of meaningful prosecution and sentencing of those found to be in breach, victims were losing faith in the criminal justice

26 For further information, see Justice Unions’ Parliamentary Group, Independent Parliamentary Inquiry into Stalking Law Reform: Main Findings and Recommendations, February 2012, available at http://www.protectionagainststalking.org/InquiryReportFinal. pdf, accessed 11 August 2013. 27 Ibid. at 21. 28 Ibid. at 2, per Elfyn Llwyd MP, Chair of Inquiry: ‘Too many victims receive little or no support from the criminal justice system while sentencing practices mean perpetrators receive insufficient punishment for the damage they have caused’.

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system.29 In short, it was time for change. In amongst the recommendations made by the report was a proposal that a specific offence of stalking should replace the current s. 4,30 the existing s. 2 should be made either way to underline the seriousness of the offence,31 and the starting point for breach of a restraining order should be a custodial sentence.32 In the light of the report, and in a speech reminiscent of the 1997 election rhetoric, Prime Minister David Cameron announced that he would criminalise stalking ‘[t]o make sure that justice is done, protect the victims and show beyond doubt that stalking is a crime’.33

The ‘new’ stalking offences The new law derives from ss 111 and 112 of the Protection of Freedoms Act 2012. These sections amend ss 2 and 4 of the Protection from Harassment Act 1997 so as to create what have been hailed as three ‘new offences’, namely s. 2A(1) ‘stalking’, s. 4A(1)(b)(i) ‘stalking causing fear of violence’, and s. 4A(1)(b)(ii) ‘stalking causing serious alarm or distress’. In reality, the offences are not ‘new’; rather they make explicit that which was previously implied, in that stalking is now clearly brought within the ambit of harassment. The new legislation provides that s. 2 can now be committed where the course of conduct that causes the harassment is ‘associated with stalking’ and the Act goes on to provide a non-exhaustive list of examples of such conduct.34 Similarly s. 4 is amended so that the course of conduct that gives rise to a fear that on at least two occasions violence will be used can be a course of conduct that ‘amounts to stalking’. In relation to these sections very little has changed other than the Act now specifically cites stalking as a type of behaviour that can give rise to conduct that amounts to harassment. The key change is to be found in s. 4A(1)(b)(ii). This creates a brandnew offence, albeit still sharing some of the same requirements as the original s. 4. An offence will be committed where the defendant has pursued a course of conduct that has caused the victim ‘serious alarm or distress which has a substantial adverse effect on the victim’s usual dayto-day activities’ and the defendant knew, or ought to have known, it would have the effect. This new offence provides a neat solution to the problem of those repeated incidents of stalking/harassing behaviour that, although devastating to the victim, do not cross the original s. 4 threshold of causing a fear that the defendant will use violence. Whereas 29 Above n. 26 at 3, per Executive Summary: ‘The panel found that victims had a profound lack of confidence in the criminal justice system; very few prosecutions under the Act resulted in custodial sentence and that little if any treatment was available for perpetrators’. 30 Ibid. recommendation 24. 31 Ibid. recommendation 25. 32 Ibid. recommendation 26. 33 Home Office Press Release, 8 March 2012, available at https://www.gov.uk/government/ news/new-offences-of-stalking-announced, accessed 11 August 2013. 34 See s. 2A(3) which includes behaviour such as following a person, monitoring his or her e-mails, watching or spying on him or her and loitering in any place (public or private).

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previously, such behaviour would at best be charged as plain s. 2 harassment and attract at most a sentence of six months’ imprisonment, these incidents would now be covered by this new offence and attract a maximum sentence of five years’ imprisonment. This must surely be a welcome addition to the prosecutor’s arsenal of harassment offences, but it remains to be seen whether it will be used to maximum effect. It does, of course, beg the question why the wording of the existing s. 4 was not simply changed to may use violence rather than pushing through an amendment which has effectively created two levels of s. 4. Undoubtedly, there will be a period of uncertainty as the courts grapple with what precisely is meant by ‘serious alarm or distress which has a substantial adverse effect on the victim’s usual day-to-day activities’, but it is hoped that such words will be given their ordinary meaning. A Home Office circular on the new law has provided some guidance on this point, for example suggesting that the victim having to move house, suffering a change in physical or mental health, adding security measures to the house, changing their route to work, etc. are all indicative of a substantial adverse effect to everyday activities.35 Certainly this list of examples seems to cover what would traditionally be considered the ill effects of stalking behaviour.

Conclusion Any legislative change that puts stalking on the map is to be welcomed, not least for raising public awareness of this most distressing offence. But one has to question whether the same aims could have more easily been achieved. The fact that the Protection from Harassment Act 1997 has been amended, rather than creating a brand new piece of ‘stalking’ legislation, speaks volumes. Stalking is clearly a form of harassment and it is quite rightly incorporated within the existing Act. If there were to be a separate Act for stalking, then many of the measures of the Protection from Harassment Act would have to be duplicated such as the defence of reasonableness, the need for a course of conduct, the focus on the reaction of the victim and the restraining orders. Unfortunately, the chief criticism of the 1997 Act was that the six-month maximum sentence for a s. 2 offence was often inadequate in cases where justice required a harsher punishment. To an extent, this is inevitable given that the main aim of the Act was to protect the victim from further harassing conduct, rather than focus solely on the punishment of the perpetrator. Accordingly the low sentence reflects the low threshold for liability, as the victim is presumably more concerned with securing a restraining order which provides an easier means of redress should the stalker recommence his or her behaviour, rather than focusing solely on the punitive element. That said, the fact remains that many serious stalking cases that fall just short of s. 4 end up being charged under s. 2 due to the difficult requirement that the victim fears violence will be 35 Home Office Circular 018/2012, 16 October 2012, available at https://www.gov.uk/ government/publications/a-change-to-the-protection-from-harassment-act-1997-introductionof-two-new-specific-offences-of-stalking, accessed 11 August 2013.

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used, and unfortunately the sentencing gulf between the two offences remains immense. It would have been far preferable, and simpler, to increase the sentencing powers on s. 2 conviction, or make the offence triable either way as proposed by the parliamentary inquiry, so that serious s. 2 cases can be adequately sentenced. Another criticism that has not been addressed by the recent changes is the continued inclusion of constructive knowledge (the defendant ‘should have known’ that his behaviour would cause harassment) in the mens rea of these offences. This remains problematic as research tends to show that many stalkers are completely unaware of the effect of their behaviour, either because they are socially naïve, deluded into thinking that their efforts are appreciated, or because they are otherwise mentally ill, yet these people continue to be criminalised by the Protection from Harassment Act. One way of meeting this concern is to establish different levels of harassing/stalking behaviour, with calculated stalking being charged as a more serious form of stalking, and more reckless forms of stalking, or deluded stalking, ranking less seriously. Finch has considered re-evaluating the Protection from Harassment Act 1997 in this manner and has proposed that the s. 2 offence be split into two separate offences based on the state of mind of the defendant; deliberate and inadvertent harassment, with the former carrying a higher penalty that the latter.36 Such a proposal has clear merit; the original wording of the Act is preserved, but there is a clear demarcation between cases where the defendant knew he was causing harassment and cases where he ought to have known. To have this clear division would be preferable for both victim and defendant. For the victim of a determined stalker, one who has set about causing as much distress as possible, there is the satisfaction of knowing that this level of culpability will be reflected in both the sentence and the stigma that will inevitably attach to being convicted of ‘deliberate’ harassment. As far as the unwitting stalker is concerned, there would inevitably be an increase in the number of guilty pleas (and therefore restraining orders which afford the victim’s peace of mind and protection) if the charge was termed ‘inadvertent’ harassment, as such a term implies less moral culpability than the existing, all encompassing offence of harassment. Clearly the recent changes have failed to create such a hierarchy of offending and it is unclear why this option was not investigated further. To an extent, splitting the offence in this way would serve as a labelling exercise, but, as outlined above, a division based on levels of awareness is an attractive alternative. Assuming, however, that the new offences, with the old concept of constructive knowledge, are here to stay, then it is incumbent on the Sentencing Council to address this issue by providing detailed sentencing guidance that indicates different sentencing starting points according to the level of awareness of the stalker, so that the ‘mad, bad and sad’ stalkers are dealt with appropriately. This would indirectly

36 E. Finch, ‘Stalking the Perfect Stalking Law: An Evaluation of the Efficacy of the Protection from Harassment Act 1997’ [2002] Crim LR 703.

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create a hierarchy of offending that takes into account both the reaction of the victim and the state of mind of the stalker. Finally, so much of the success of these measures will be dependent upon the public’s level of awareness. If more people were aware that stalking is a common criminal offence, and not just the preserve of celebrity victims, then perhaps fewer people would indulge in such behaviour. A hard-hitting advertising campaign similar to the recently televised ‘Would you see rape?’ campaign would serve to raise more awareness amongst perpetrators and victims alike.37 We also need to ensure that the police take a consistent and rigorous approach when responding to allegations of stalking, so that victims can have confidence that their complaint will be taken seriously. That said, there will need to be an element of discretion. If we return once more to Finch’s ‘mad, bad and sad’ stalkers, it may well be that a police warning issued to a ‘sad’ stalker, or an offer of counselling for a ‘mad’ stalker would be sufficient to bring an end to the behaviour without the need for formal proceedings which may only become necessary in cases of ‘bad’ stalkers.38 In conclusion, aside from s. 4A(1)(b)(ii), the new legislation has simply set out that which was always implicit—stalking counts as behaviour that can cause harassment. We have returned to, as originally proposed by the 1996 Stalking Bill, a list of examples of stalking-type behaviour, something that has never really been required by the courts, but may serve as a public awareness exercise. There may also be some measure of cold comfort in that the perpetrator charged under the new provisions is now labelled as a stalker, but, again, one has to query how much value there is in this. Victims of stalking would have preferred sentencing options to be increased or have restraining orders made mandatory. It is, however, pleasing to see some form of bridging offence between s. 2 and s. 4 in the form of s. 4A(1)(b)(ii), an offence that carries a suitable sentence to reflect the severity of the behaviour, but without the onerous threshold of the original s. 4. Unfortunately, there is a fear that the new s. 4A will in many ways become the old s. 2, in that it is the lesser option for those cases that fall short of s. 4. It would have been better to retain the original s. 4 and simply lower the threshold to may use violence. As it stands, there is now a new gulf set to open up between ‘alarm and distress that adversely affects day-to-day activities’ and ‘fear of violence’ although the pill is sugar coated with an equivalent sentence. It is hoped that by having a similar sentence to s. 4, the old s. 2 victim will no longer have to resort to fragmenting the behaviour into isolated incidents in an attempt to bring the offender to justice, and that the stalker will now be labelled and sentenced as such.

37 See http://thisisabuse.direct.gov.uk/, accessed 11 August 2013. 38 Finch, above n. 9 at 282.

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