Criminal Law
8. Criminal law in Scotland is still largely based on common law. This entails broadly defined offences such as breach of the peace. In England statute law, which entails precisely defined criminal offences, predominates.
9. The emphasis on common law is generally seen as one of the strengths of the Scottish system. It offers the courts greater flexibility in interpreting and applying the law than would be possible under statute. The role of statute law in Scotland is nonetheless important. It covers a range of novel offences - drugs offences are a prime example.
Common Law Breach of the Peace
10. At present behaviour in Scotland which might be described as harassment or stalking is usually prosecuted as a breach of the peace. This common law offence covers all behaviour (including single incidents) which causes, or is likely to cause, fear, alarm, upset or annoyance. The Courts recognise that breach of the peace can be serious. In 1997, 1,378 people received custodial sentences for that offence. Since the start of 1998 incidents of breach of the peace involving harassment have been recorded explicitly by the police but it is too soon to analyse the effect of this new development.
11. In addition, the common law allows for great flexibility in sentencing. Thus the maximum penalty for common law offences such as breach of the peace is limited not by statute but the court which hears the case. In the High Court, a life sentence is theoretically possible, and a sentence of 8 years was recently imposed.
Common Law of Threats
12. In Scotland there also exists the common law crime of threats. There are two classes of threats: the first includes threats to "burn a man's house....to put him to death, or to do him any grievous bodily harm, or to do any serious injury to his property, his fortune, or his reputation." There is a completed crime in such cases as soon as the threat is made, for example, by posting a threatening letter. The second class comprises all other threats including threats of violence not amounting to grievous harm. Clearly threats of violence could also be charged as breach of the peace if the conduct involved puts someone in a state of fear or alarm.
Civil Law
13. Remedies designed to deal with harassment are also available in civil law.
Interdicts
14. A court can impose the remedy of interdict. An interdict is a court order that prohibits behaviour by the person named in the order from taking any action specified in the order. An interdict can be obtained quickly on an interim basis. A person who breaches an interdict is liable to be held in contempt of court. This could bring a penalty of up to two years in prison. A fine could also be imposed. That may be a sufficient deterrent for many stalkers.
Exclusion Orders and Matrimonial Interdicts
15. Under the Matrimonial Homes (Family Protection) Act 1981, a court can grant an Exclusion Order to prevent a spouse from entering the matrimonial home where it is necessary to protect the other spouse or any children of the family from conduct which would injure them either physically or mentally. At the same time as making an Exclusion Order, the court can also grant a Matrimonial Interdict. This would restrain or prohibit the conduct of one spouse towards the other spouse or any children of the family. It may also prohibit one spouse from entering or remaining in the matrimonial home or in a specified area in the vicinity of the matrimonial home. Importantly, if the court makes a Matrimonial Interdict at the same time as an Exclusion Order, the court (if asked) must attach a power of arrest to the matrimonial interdict. Thus, the subject of the order can be arrested without warrant if there is reasonable cause for suspecting that he is in breach of the interdict. Breach of an interdict carries a penalty of up to 2 years' imprisonment.
16. A Scottish Law Commission report on Family Law recommended clarifying the availability and scope of matrimonial interdicts. Following the Scottish Office consultation paper "Improving Scottish Family Law", the Deputy First Minister announced on 20 January 2000 that a Family Law White Paper containing the Executive's detailed proposals will be published in May. This will propose:
Protection from Harassment Act 1997
17. The Protection from Harassment Act 1997, in its application to Scotland, strengthened both the civil and criminal law. Victims of harassment are able under that Act to take action in the civil courts to obtain damages for the harassment, including for any anxiety or for any financial loss. Most importantly, victims are also able to obtain a non-harassment order (NHO) to prevent any further harassment. Such an order would prohibit further behaviour of the sort that has caused a victim distress, and breach of the order is a criminal offence punishable on indictment by up to 5 years' imprisonment. The Act also enables the Scottish criminal courts to make such an order after convicting someone of a criminal offence involving harassment, in addition to any other sentence for the offence. As in England and Wales, the order can only be made if there is evidence of a 'course of conduct', that is relevant conduct on at least two occasions.
18. There are other additional remedies that may be appropriate in cases of harassment: for example, a special condition of bail can be sought requiring the accused to refrain from contacting or approaching the victim, or made a feature of a probation order or a deferred sentence, at the discretion of the judge.