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24. The first part of this paper summarises the current position. In moving forward, we need to consider whether what exists now is sufficient to achieve the objectives of prevention and protection; whether something more needs to be done; and, if so, what that should be. The remainder of the paper identifies and discusses options and invites views on them. This is not intended to be an exhaustive list and further suggestions from those commenting are welcome.
25. In broad terms, the options are:
These are not all mutually exclusive, and are considered in more detail below.
Rely on Existing Law
26. The first part of this paper reviewed what is available under both the criminal and civil laws of Scotland to address this type of menacing behaviour. Within the criminal context, much reliance is placed on the common law. In terms of the legal framework, some may therefore consider that there is sufficient flexibility at common law to deal with stalking and its attendant behaviour (particularly if employed in conjunction with other statutory remedies for dealing with domestic violence and abuse, and violent or sexual offenders, and in conjunction with remedies available under the civil law).
27. On the other hand, there is real public concern about stalking and tragic cases where stalking behaviour has escalated into serious physical assault or murder. This suggests that there is a problem to be solved. That problem may be with the law or with the application of the law. Either way, we need to ask whether the law as it stands does enough to address those concerns.
Changes to Current Practice
28. It is clearly of fundamental importance that any person who fears they are the victim of stalking, whether or not by someone they know, is confident that their concerns are properly addressed by all the appropriate agencies, in particular the police.
29. The nature of stalking and harassment means that the justice system _ from the police through to the courts - should be alert to the possibility that one incident may be part of a series of such incidents, and that the victim may be very concerned for his or her personal safety. We are aware that there have been cases where victims have felt that these issues were not fully recognised and taken into account.
Police Procedure
30. In the operational sense, the police are naturally heavily involved in dealing with stalking and harassment. They are concerned to ensure that force procedures and practices address the victims' interests appropriately. It is important that the police should be aware of the offending history or pattern of behaviour in particular cases. They should also be able to check for the existence of non-harassment orders or interdicts with powers of arrest that may apply.
31. Scottish Police Forces now have review mechanisms in place to ensure that actions taken at the time of any incident and subsequent investigations are prompt and thorough. This process is designed to identify repeat victims and many Forces have a database containing details of domestic violence victims. This provides a system for victims should they move house within the force area. All Forces have also undertaken extensive training programmes. Personnel receive guidance and instruction to raise their awareness of the many complex issues involved in domestic violence, as well as the practices and procedures to be adopted. This resulted from a thematic report by HM Inspectorate of Constabulary into the Police response to domestic violence, entitled 'Hitting Home', which was issued to all Scottish Police forces in 1997. It identified the need to engage in a fundamental review of policy and practice in relation to domestic violence.
Changes to Current Law
32. One option is to modify the existing law, but without the introduction of a specific offence. The aim would be incremental change to enhance the present safeguards. The following modifications are offered for consideration:
Information on Previous Convictions
33. In order to prove harassment sufficient for the purposes of applying for an NHO, 'a course of conduct' (that is conduct on at least 2 occasions) has to be proved. This understanding was established following an Appeal Court ruling in the case of McGlennan v McKinnon (1998 SCCR 285). In that particular case the Court determined that in order for an NHO to be available on conviction the accused must have been convicted of an offence which itself involves relevant conduct on at least two separate occasions. In that case the offender had been convicted of breach of the peace involving shouting at his victim, and had been convicted on 4 previous occasions of breach of the peace involving the same victim. The Crown argued that taken together these might have been viewed as a course of conduct amounting to harassment of the victim. However, the Appeal Court held that for this purpose the court could not take account of these previous convictions and that for an order to be available there must, as a matter of interpretation of the statutory provision, have been averments of conduct on at least two occasions in relation to the current offence. The Appeal Court referred to the tradition that criminal courts do not look behind previous convictions in order to establish any relation between them. This tradition relies on a decision by Lord Justice Clerk Macdonald in the 1908 case of Connell v Mitchell.
34. The Court's findings in the more recent case of Riley v HMA (1999 SCCR 644) does suggest that the rigid rule in Connell v Mitchell can no longer be regarded as universal practice - the Court found that in appropriate cases the Crown might append to the notice of previous convictions further information about those convictions (limited to the terms of the charge on which the previous convictions were based including the name of the victim, in harassment cases). However, it still remains the position that "a course of conduct" must be demonstrated before an NHO can be contemplated.
35. This would not detract from the requirement that, for an NHO to be available on conviction, the accused must have been convicted of an offence which itself involves relevant conduct on at least two separate occasions. However, the knowledge of relevant previous convictions might assist the court at the time of sentencing in assessing both the penalty and the appropriateness of an NHO. A further step would be to broaden the definition of a "course of conduct".
36. Clearly these are complex legal issues but comments are invited on whether there is scope to seek changes in this area that may be beneficial in dealing with cases of stalking.
Obligatory Non-Harassment Orders
37. At present, courts have an unfettered discretion to consider making an NHO under the provisions introduced by the 1997 Act, on the motion of the prosecutor, when they are convicting a person of an offence involving harassment.
Additional Powers of Arrest
38. Breach of an NHO does not in itself constitute an offence for which the police can arrest without warrant. Police can of course arrest a suspect involved in conduct that is considered to amount to another offence for which the police can arrest, such as breach of the peace. However, at present the police could not arrest someone without warrant if, for example, the person is breaching an NHO requirement by not staying away from the victim's house. In such circumstances, the police would not be able to arrest him without a warrant unless he committed a separate arrestable offence. However, in such circumstances the police should arguably be able to act immediately to prevent further distress, alarm or even violence before it takes place.
Reduced Burdens of Proof
39. In this context, it has been suggested that the requirement of corroboration should be abolished in cases where an NHO is breached, both because it may be difficult to obtain corroboration, and because the fact that an NHO is in place implies that a degree of proof has been established. However, (and unlike breach of Community Service Orders or Probation Orders) breach of an NHO is a criminal offence which carries a sentence of imprisonment of up to 5 years. We doubt whether it is appropriate in a jurisdiction that requires corroboration of criminal offences generally to make an exception of this offence. It may also represent a breach of Article 6 of the European Convention on Human Rights _ the right to a fair trial.
A New Statutory Offence
40. There is a view that the creation of a new statutory offence would strengthen the message that stalking and harassment are unacceptable forms of behaviour.
41. The English offence of 'harassment' in the Protection from Harassment Act 1997 requires a course of conduct to be proved and carries a maximum sentence of 6 months, and the related offence of 'putting people in fear of violence' a maximum sentence of 5 years. The term "stalking" is not defined in statute in England.
42. There are other examples of new offences being created to deal with a specific type of offending behaviour in Scotland. For example The Scottish Office undertook a wide consultation on racist crime in 1997. Here many respondents argued that there were advantages in highlighting the particular nature of the crime to ensure it was readily recognised and dealt with. The resulting offence of racially aggravated harassment was introduced in the Crime and Disorder Act 1998 and carries a maximum sentence of 6 months imprisonment on summary conviction or seven years on conviction on indictment. The Act also introduced a requirement for courts to take account of any established racial motivation in any offence as an aggravation when determining the appropriate offence. It is too early to assess how effective these provisions have been.
43. Similarly, the Criminal Justice (Scotland) Act 1980 introduced the statutory offence of vandalism. According to the Stair Memorial Encyclopaedia, "When this statutory offence was being enacted, its promoters argued that the common law of malicious mischief was insufficient to deal with the prevalence of criminal damage and that, while in substance the new offence added nothing to the common law, the introduction of a modern name which was easily understandable was an acceptable objective of the statute." Vandalism is of course a much narrower offence. Malicious mischief does not require physical damage to have occurred.
44. It has also been argued that the existing offence of breach of the peace does not always convey the seriousness of the offence committed and that there is a danger in using such a "catch-all" offence that is too diverse and unfocussed. Some feel too that more severe custodial sentences are required to act as a deterrent; and claim that breach of the peace does not lead to a penalty that properly reflects the seriousness of the offending.
45. However, the case for creating a new offence is not clear-cut. This paper has already noted the fact that the Scots common law appears to enable the court to deal with the relevant type of offending behaviour and, if appropriate, to hand down severe penaties. There is consequently a concern that a statutory offence might reduce the flexibility offered by the common law without obvious compensation. Then there is the question of defining any new statutory provision. Any definition would have to be drawn very generally if it were not to exclude a wide range of behaviour - experience suggests that stalkers use a variety of means to harass their victims and would be likely to find ways to circumvent any narrowly defined statutory offence. This is not a problem with breach of the peace.
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