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19. Before considering the possible options for change in Scotland, it is worth reviewing the position in other jurisdictions. For this purpose we have looked in particular at the position in England and Wales. We have looked also at the provisions in certain parts of the USA.
English Law
20. In addition to the statutory provisions it introduced for Scotland, the Protection from Harassment Act 1997 created new offences, described below, which are applicable in England and Wales only. In England and Wales the legal system is predominantly statute-based and no previously existing offence captured the conduct involved. For the statutory offence of harassment (which includes alarming the person or causing the person distress) to be committed a 'course of conduct' must have taken place. A "course of conduct" must involve conduct on at least two occasions. "Conduct" includes speech. A person guilty of this offence is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
21. The 1997 Act also introduced in England and Wales the offence of putting people in fear of violence. This is defined as follows: "A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions". The maximum penalty on indictment is 5 years' imprisonment and/or a fine.
22. The Home Office is intending to review the operation and effectiveness of the Protection from Harassment Act later this year. We will look with interest at any findings from that review, including the question of the setting up of an offenders' register, and any implications these might have for Scotland.
US Law
23. Although "stalking" is not a term used in any UK legislation, other jurisdictions do have such an offence. For example, in South Dakota "Any person who wilfully, maliciously, and repeatedly follows or harasses another person or who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury is guilty of the crime of stalking." There is, therefore, the same emphasis on the repeated element of the behaviour in this definition. A number of other US States also have defined harassment and stalking offences including, in at least one state, harassment aggravated by stalking.
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