Imported from http://www.cps.gov.uk/legal-guidance/stalking-and-harassment
Introduction to the law
This legal guidance addresses behaviour which is repeated and unwanted by the victim and which causes the victim alarm or distress. Cases involving stalking and harassment can be difficult to prosecute, and because of their nature are likely to require sensitive handling, especially with regard to victim care. The provision of accurate and up-to-date information to the victim throughout the life of the case, together with quality support and careful consideration of any special measures requirements are essential factors for the CPS to consider.
It is important that the CPS work closely with the police and other agencies to ensure that the best evidence is gathered and presented to the court, to this end prosecutors should be aware of the Protocol on the appropriate handling of stalking offences between the Crown Prosecution Service & NPCC. A strong, coordinated prosecution team is required to proactively build and manage a case. It is also important that, where appropriate, victims are able to access relevant support organisations. This is to ensure that their safety and support needs are addressed throughout the criminal case (and sometimes beyond) and to reduce the risk they face as a result of the offending.
In many circumstances, cases of stalking and harassment will come within the definition of ‘domestic violence’ and as such the CPS Domestic Violence Policy and legal guidance will also be relevant. Further information can be found at:
In this legal guidance, the term harassment is used to cover the ‘causing alarm or distress’ offences under section 2 of the Protection from Harassment Act 1997 as amended (PHA), and ‘putting people in fear of violence’ offences under section 4 of the PHA. The term can also include harassment by two or more defendants against an individual or harassment against more than one victim.
Although harassment is not specifically defined in section 7(2) of the PHA, it can include repeated attempts to impose unwanted communications and contact upon a victim in a manner that could be expected to cause distress or fear in any reasonable person.
The definition of harassment was considered in Plavelil v Director of Public Prosecutions  EWHC 736 (Admin), in which it was held that the repeated making of false and malicious assertions against a doctor in connection with an investigation by the GMC could amount to a course of harassment. The Court of Appeal rejected the argument that malicious allegations could not be oppressive if they could easily be rebutted.
A prosecution under section 2 or 4 requires proof of harassment. In addition, there must be evidence to prove the conduct was targeted at an individual, was calculated to alarm or cause him/her distress, and was oppressive and unreasonable.
Closely connected groups may also be subjected to ‘collective’ harassment. The primary intention of this type of harassment is not generally directed at an individual but rather at members of a group. This could include: members of the same family; residents of a particular neighbourhood; groups of a specific identity including ethnicity or sexuality, for example, the racial harassment of the users of a specific ethnic community centre; harassment of a group of disabled people; harassment of gay clubs; or of those engaged in a specific trade or profession.
Harassment of an individual can also occur when a person is harassing others connected with the individual, knowing that this behaviour will affect their victim as well as the other people that the person appears to be targeting their actions towards. This is known as ‘stalking by proxy’. Family members, friends and employees of the victim may be subjected to this.
The Protection of Freedoms Act 2012 created two new offences of stalking by inserting new sections 2A and 4A into the PHA 1997. The new offences which came into force on 25 November 2012, are not retrospective, and provide further options for prosecutors to consider when selecting charges. The Home Office issued guidelines in relation to the stalking offences.
Whilst there is no strict legal definition of ‘stalking’, section 2A (3) of the PHA 1997 sets out examples of acts or omissions which, in particular circumstances, are ones associated with stalking. For example, following a person, watching or spying on them or forcing contact with the victim through any means, including social media.
The effect of such behaviour is to curtail a victim’s freedom, leaving them feeling that they constantly have to be careful. In many cases, the conduct might appear innocent ( if it were to be taken in isolation), but when carried out repeatedly so as to amount to a course of conduct, it may then cause significant alarm, harassment or distress to the victim.
Prosecutors should note that the examples given in section 2A (3) is not an exhaustive list but an indication of the types of behaviour that may be displayed in a stalking offence.
Prosecutors should note that stalking and harassment of another or others can include a range of offences such as those under: the Protection from Harassment Act 1997; the Offences Against the Person Act 1861; the Sexual Offences Act 2003; and the Malicious Communications Act 1988. It is important when considering this type of offending to look at all relevant legislation when formulating charges.
This section covers the criminal legislation most relevant to cases of stalking and harassment.
Protection from Harassment Act 1997
The PHA was brought into force on 16 June 1997 and was amended by the Protection of Freedoms Act 2012 to include two new specific offences of stalking, through the insertion of sections 2A and 4A. A court dealing with a person convicted of any offence, including those under sections 2, 2A, 4 or 4A of the PHA, may make a restraining order prohibiting the defendant from doing anything described in the order. This order can be made in addition to a custodial sentence or other sentence. The order can be especially useful in preventing continued stalking and harassment by defendants, including those who are given sentences of imprisonment.
The PHA includes the following provisions:
- Harassment (section 2): a summary only offence, carrying a maximum of six months’ imprisonment and/or a level 5 fine;
- Stalking (section 2A): a summary only offence, carrying a maximum of six months’ imprisonment and /or a level 5 fine;
- Fear of violence (section 4): an either way offence, carrying a maximum of five years’ imprisonment and/or a fine on indictment;
- Stalking – involving fear of violence or serious alarm or distress (section 4A): an either way offence, carrying a maximum of five years’ imprisonment and/or a fine on indictment;
- Breach of a civil injunction (section 3(6)): an either way offence, carrying the same penalty as for the section 4 offence;
- Breach of a restraining order (section 5(5)); an either way offence, carrying the same penalty as for the section 4 offence;
- a civil tort of harassment, created by section 3.
Crime and Disorder Act 1998
Prosecutors should note that there may be cases of stalking and harassment which may be linked with racial or religious hatred.
Section 2A and 4A (PHA 1997) Stalking offences which are also racially and religiously aggravated are covered under Part 11 of Schedule 9 of the Protection of Freedoms Act 2012. Prosecutors should consider Section 32 of the Crime and Disorder Act 1998 ( CDA 1998) which provides for two racially or religiously aggravated harassment offences, provided the racial or religious aggravation test in section 28 of the CDA 1998 Acts met.
Under section 32(1)of the CDA 1998, a person is guilty of an offence under this section if he commits-
a) an offence under s2 or s2A of the Protection from Harassment Act 1997 (offences of harassment and stalking); or
b) an offence under s4 or s4A of that Act (putting people in fear of violence and stalking involving fear of violence or serious alarm or distress), which is racially aggravated for the purposes of this section.
Under section 32(5) of the CDA 1998, if, on the trial on indictment of a person charged with an offence falling within subsection (1)(a), the jury find him not guilty of the offence charged; they may find him guilty of either basic offence mentioned in that provision.
Under 32(6) CDA 1998 if, on the trial on indictment of a person charged with an offence falling within subsection (1)(b), the jury find him not guilty of the offence charged, they may find him guilty of an offence falling within subsection (1)(a).
More information is available in the Legal Guidance on Racist and Religious Crime.
Domestic Violence, Crime and Victims Act 2004
Section 12 of the Domestic Violence, Crime and Victims Act 2004, as well extending the availability of restraining orders to all offences, provides the court with the power to make a restraining order even when a person has been acquitted, where the court considers it necessary to do so to protect a person from ongoing stalking or harassment from the defendant.
Section 2 offence – Harassment
The elements of section 2 offence are:
- a course of conduct;
- which amounts to harassment of another; and
- which the defendant knows, or ought to know amounts to harassment of another.
Prosecutors should also note section 1(1A), as inserted by section 125(2) of the Serious Organised Crime and Police Act 2005 (SOCPA):
The elements of section 1(1A) offence are:
- a course of conduct;
- which involves harassment of two or more persons; and
- which the defendant knows or ought to know involves harassment of those persons;
- by which he intends to persuade any person (whether or not one of those mentioned above);
- not to do something that he is entitled or required to do; or
- to do something that he is not under any obligation to do.
As a summary only offence, the section 2 offence requires information or a complaint to be laid within 6 months from the time when the offence was committed, or the matter of complaint arose. The 6 months’ limitation should run from the last date of the course of conduct alleged.
In determining whether the defendant ought to know that the course of conduct amounts to harassment, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
Defence – Harassment – section 2
Three defences are available to the section 2 offence:
- that the course of conduct was pursued for the purpose of preventing or detecting crime;
- that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or
- that in the particular circumstances the pursuit of the course of conduct was reasonable.
The Protection from Harassment Act 1997 was intially introduced as a Stalking Bill and was always intended to tackle all forms of harassment including stalking. Although stalking offences were prosecuted under the PHA 1997,many victims of stalking felt that they were not taken seriously by the criminal justice system and that stalking should be a specific offence.
The Protection of Freedoms Act 2012, s.111 created 2 new offences (inserted in PHA 1997):
- Stalking – harassment which involves a course of conduct that amounts to stalking (s.2A(1) PHA 1997)
- Stalking – s.4A (1) PHA 1997 which can be committed two ways namely:
– Stalking involving fear of violence (s.4A(1)(b)(i) PHA 1997) OR
– Stalking involving serious alarm or distress (s.4A(1)(b)(ii) PHA 1997)
The new stalking offences highlighted:
- Stalking as a specific behaviour as opposed to harassment more generally.
- Closed the lacuna when a course of conduct fell short of causing a victim to feel fear of violence but nevertheless caused a victim serious alarm or distress. (In this circumstance the police and prosecutors could only consider a section 2 summary offence).
- The additional element in the new section 4A offence enable cases to be prosecuted when the defendant’s behaviour falls short of fear of violence.
- Affords more protection to victims of stalking.
Section 2A offence – Stalking
The elements of the section 2A offence are:
- a course of conduct
- which is in breach of section 1(1) of the Protection from Harassment Act 1997 (i.e. a course of conduct which amounts to harassment) and
- the course of conduct amounts to stalking.
This means that there has to be a course of conduct which amounts to harassment and that particular harassment can be described as stalking behaviour.
A course of conduct is the same as defined under section 7 of the PHA 1997 and referred to elsewhere in this guidance.
Definition of stalking
Stalking is not legally defined but section 2A (3) of the PHA 1997 lists a number of examples of behaviours associated with stalking. The list is not an exhaustive one but gives an indication of the types of behaviour that may be displayed in a stalking offence. The listed behaviours are:
(a) following a person,
(b) contacting, or attempting to contact, a person by any means,
(c) publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person,
(d) monitoring the use by a person of the internet, email or any other form of electronic communication,
(e) loitering in any place (whether public or private),
(f) interfering with any property in the possession of a person,
(g) watching or spying on a person.
Harassment that includes one or more of the above features is not automatically stalking. The course of conduct, assessed in the round, must fit the generally received interpretation of the word ‘stalking’.
Prosecutors should note that the list in s.2A(3) is not exhaustive and it will be open to courts to consider other acts by a defendant and conclude that those acts constitute stalking even if they are not on the s.2A(3) list. It is likely that the defence may argue particular acts “associated with stalking” should not be classed as stalking but harassment and that their client is guilty of harassment, not stalking. Where such an argument is raised, prosecutors should state that this should be a decision of fact for the magistrates to decide on. It is therefore imperative that the correct charge is laid from the outset. Section 2A is a summary offence and a person guilty of the offence of stalking is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine.
As a summary only offence, the section 2A offence requires an information or complaint to be laid within 6 months from the time when the offence was committed, or the matter of complaint arose. The 6 months’ limitation should run from the last date of the course of conduct alleged.
Prosecutors should note that an integral part of the stalking offence is establishing that harassment has taken place. In determining whether the defendant ought to know that the course of conduct amounts to harassment, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
Defence – Stalking – section 2A
If the suspect is able to show that any of the defences to harassment under section 1(3) of the PHA are made out, he or she can not be guilty of stalking as without harassment there can be no conviction for stalking.
Section 4A (1)(b)(i) – Putting People in Fear of Violence
The elements of the section 4 offence are:
- a course of conduct;
- which causes another to fear that violence will be used against him; and
- which the defendant knows or ought to know will cause another to fear that violence will be used against him; and
- the defendant ought to know that his course of conduct will cause another to fear that violence will be used against them if a reasonable person in possession of the same information would think that the course of conduct would cause the other so to fear on that occasion.
Defence – Putting People in Fear of Violence – s.4
Section 4 also includes the following statutory defences. It is for the defendant to show that:
- the course of conduct was pursued for the purpose of preventing or detecting crime;
- the course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or
- pursuit of the course of conduct was reasonable for the protection of him or herself or another or for the protection of her, his or another’s property.
Section 4A(1)(b)(ii) Offence – Stalking involving fear of violence or serious alarm or distress
The elements of the section 4A offence are:
- a course of conduct;
- which amounts to stalking; and
- which causes another to fear, on at least two occasions, that violence will be used against him or her; or
causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities
In determining whether the defendant ought to know that the course of his or her conduct will cause the other person to fear that violence will be used against them or will cause the other person serious alarm or distress, the question to be determined is whether a reasonable person in possession of the same information would think it so.
A course of conduct is the same as defined under section 7 of the PHA 1997 and referred earlier in the guidance.
There are two ways of committing this offence:
First, a course of conduct that amounts to stalking and causes the victim to fear, on at least two occasions, that violence will be used against them (which is similar to the existing section 4 offence).
Second, a course of conduct which causes “serious alarm or distress” which has a substantial adverse effect on the day-to-day activities of the victim. This limb recognises the overall emotional and psychological harm that stalking may cause to victims, even where an explicit fear of violence is not created by each incident of stalking behaviour.
The phrase “substantial adverse effect on … usual day-to-day activities” is not defined in section 4A and thus its construction will be a matter for the courts. However, the guidelines (http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars/circulars-2012/018-2012/) issued by the Home Office suggest that evidence of a substantial adverse effect may include the following:
(a) the victim changing their routes to work, work patterns, or employment;
(b) the victim arranging for friends or family to pick up children from school (to avoid contact with the stalker);
(c) the victim putting in place additional security measures in their home;
(d) the victim moving home;
(e) physical or mental ill-health;
(f) the deterioration in the victim’s performance at work due to stress;
(g) the victim stopping /or changing the way they socialise.
Prosecutors should note that the above list is not exhaustive and that there may be some victims who will try to continue their lives as usual in defiance of a stalker. So the absence of factors such as those listed above does not necessarily mean that stalking is not taking place.
The crucial difference between the offence under section 4 Harassment and the new offence under section 4A Stalking is that the latter introduces an additional element, namely that the defendant’s offending behaviour causes a victim “serious alarm or distress that has a substantial adverse effect on their usual day-to-day activities”.Whereas in previous incidents and prior to the stalking legislation, if there was insufficient evidence to prove ” fear of violence”, the only option was to prefer a summary charge. However, under section 4A, the additional element will allow prosecutors to consider an either way offence.
Unlike the existing s.4 and the new s.4A(1)(b)(i), however, it is the cumulative effect of the stalking which is important and it does not require any particular incident in the stalking to be especially alarming or serious.
This is an important aspect of the new offence and prosecutors should consider the cumulative effect of stalking on the victim and the effect and nature of individual incidents, rather than looking at specific incidents in isolation.
Defence – Section 4A
In contrast to section 2A, the defences at section 1(3) are specifically included in section 4A.
There is a defence to stalking involving fear of violence or serious alarm or distress, as set out in section 4 A (3), where it can be shown that the course of conduct was:
(a) pursued for the purpose of preventing or detecting crime;
(b) the conduct was pursued under any enactment or rule of law; or
(c) the pursuit of A’s course of conduct was reasonable for the protection of A or another or for the protection of A’s or another’s property.
Section 4A is an either way offence and on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both.
If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.
The first defence is that the course of conduct was pursued for the purpose of preventing or detecting crime. This most obviously applies to the police and any other investigative agencies such as the Post Office or HMRC. It is possible that it could be raised as by individuals such as investigative journalists or Neighbourhood Watch members who claim that their activities are for the purpose of detecting or preventing crime.
In Hayes v Willoughby  UKSC 17(a civil case), the issue arose as to what action could be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. The court held that in order to rely on the defence under section 1 (3)(a) of the Protection from Harassment Act 1997, which exempts liability for a course of conduct “pursued for the purpose of preventing or detecting crime”, the alleged harasser would have to show that he had acted rationally.
The second defence to sections 2 and 4 states that the course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under the enactment. This most obviously applies to companies acting within their legal entitlement, for example, a Building Society manager warning in writing of repossession proceedings, because of default in mortgage payments, followed by repossession taking place.
The third defence to section 2 is that the defendant was acting reasonably in the particular circumstances. This is a wide defence, which covers the pursuit of a legitimate trade or profession. Ultimately, the decision as to what amounts to reasonable behaviour will rest with the courts.
A Course of Conduct
Section 7 defines a course of conduct as being on at least two occasions. Harassment is not defined but includes conduct causing alarm or distress. It is confirmed as including speech.
The PHA does not specify what period of time should elapse between occasions. Arguably, therefore, so long as the behaviour complained of ceased, even for a short period of time, and then resumed either in the same or a different form, this can form a course of conduct. Acts might be some distance apart, and yet still constitute a course of conduct. Each case will fall to be determined on its own facts.
Section 7(3A) provides that conduct by one person shall also be taken to be conduct by another if the other has aided, abetted, counselled or procured the conduct. It makes it clear that a campaign of collective harassment by two or more people can amount to a “course of conduct”. It also confirms that one person can pursue a course of conduct by committing one act personally and arranging for another person to commit another act.
If there are only two incidents and a long period between them, the less likely it is that they will be accepted by a court as amounting to a course of conduct. In the case of Pratt v DPP  EWHC 483, the Administrative Court held that two incidents almost 3 months apart were “close to the line” but nevertheless sufficient to establish a course of conduct.
However, the courts have ruled that it is not just the number of incidents which make up a course of conduct, but whether those incidents could be said to be so connected in type and context as to justify the conclusion that they could amount to a course of conduct (see Lau v DPP  Crim. L.R. 580 and R v Patel  1 Cr. App. 27).
It is necessary to prove that the conduct is unacceptable to a degree which would sustain criminal liability, and also must be oppressive (R v Curtis  EWCA 123). The prosecution in this case relied on a series of spontaneous outbursts of bad temper and bad behaviour, with aggression on both sides, between partners during the time they cohabited. These were interspersed with considerable periods of affectionate life. The Court of Appeal allowed the appeal against conviction on the basis that the trial judge had not directed the jury that the course of conduct had to amount to harassment and that the facts of the case, largely undisputed by the defendant, did not establish a nexus between the incidents.
There is no specific requirement that the activity making up a course of conduct should be of the same nature. Therefore different types of behaviour by a person such as making a telephone call on one occasion and damaging the victim’s property on another may suffice, provided that the prosecution can also show that there was a common intent to persuade the victims or any other person to do something or not to do something they were entitled to do.
It may often not be immediately apparent that separate incidents are connected as a course of conduct. It is therefore important that officers are alert to the possibility that such incidents could form part of a course of conduct and to take this into account during the investigation of each incident – making whatever inquiries seem appropriate to determine whether the incident is in fact part of a course of conduct. Police will need to ensure that accurate records are kept of each incident.
If an earlier incident is charged under other legislation (for example, a breach of the peace or an offence contrary to section 5 of the Public Order Act 1986), and a subsequent incident establishes a course of conduct, it may be advisable to withdraw the earlier charge and to substitute a charge under the PHA, covering both incidents. Difficulties will arise if an earlier incident has resulted in a conviction. It is unlikely that the courts will allow incidents that have already been dealt with to form part of a subsequent offence, given the doctrines of autrefois acquit and convict.
Similarly, where a defendant has been cautioned, care should be taken before going behind the caution and charging that incident as part of a course of conduct. This may constitute an abuse of process.
Incidents before commencement of Stalking legislation
The stalking offences came into force on 25 November 2012. Prosecutors should note that any incidents which form part of a course of conduct that took place prior to this date can not be included in a stalking charge. This is because the Stalking legislation is not retrospective. Where there is a course of conduct commencing before 25 November 2012 and continuing after that date, it may be appropriate for prosecutors to consider section 2 and section 4 offences. However, if a course of conduct which began prior to 25 November 2012 reflects a serious case of stalking, and there are sufficient further incidents after 25 November which can be used to establish a stalking charge, then consideration should be given to charging a stalking offence and introducing conduct prior to 25 November 2012 as Bad Character Evidence.
Secretary of State’s Certificate – s.12
In order to protect the activities of the security forces, and those investigating serious crime, under section 12, the Secretary of State may issue a certificate to the effect that the behaviour complained of was done in relation to:
- national security;
- the economic well-being of the United Kingdom; or
- the prevention or detection of serious crime.
Such a certificate is conclusive evidence that the PHA does not apply to the conduct of a person on a specified occasion. This will prevent surveillance targets from taking out private prosecutions in order to expose those keeping surveillance, should such prosecutions get as far as trial without being taken over and discontinued by the CPS. It is hard to envisage circumstances where a prosecution resulting from a police charge will result in the need for such a certificate.
As certificates are issued by the Secretary of State, they can be expected to relate only to high level operations concerning terrorism or very serious crime. It is not thought likely that such certificates will be issued in relation to the activities of specialist police units.
Pre charge activity
Upon receipt of an expedited report or evidential file, a prosecutor should:
- create an MG3/3A and an Action Plan with action dates;
- check that the reverse of the MG11 is filled in and any related MG2 is completed. The prosecutor should consider the needs of the victim when advising on charge, including the need to apply for special measures;
- outline a timetable for the police to send the outstanding evidence when the Threshold Test is applied and ensure that any delay is reasonable in all the circumstances;
- ensure that for the Full Code Test to be satisfied at a later stage, all outstanding evidence , outlined in the initial advice is requested and checked;
- make proactive enquiries with the police and ensure all information in respect of the suspect’s criminal behaviour or intelligence reports relating to domestic violence incidents are provided as often stalking and harassment cases are interlinked with domestic violence incidents;
- create a detailed review on CMS and refer to all relevant issues from the advice given.
It is important to note that matters said to constitute the course of conduct amounting to harassment must be properly particularised in the information laid or in the indictment (C v CPS 2008 EWHC 148).
While a course of conduct requires behaviour on at least two occasions, Prosecutors should note that when drafting an indictment for an either way stalking or harassment charge, the following should be borne in mind:
- Stalking – section 4A(1)(b)(i), the wording must contain “at least on two occasions”, as specified in the required elements of this offence.
- Harassment – section 4, the wording must contain “on each occasion”, as specified in the required elements of this offence.
In terms of selecting charges it is important for prosecutors to understand the difference between persons who are stalked and those who are harassed; in some cases the distinction between a stalked victim and a harassed person will not be clear cut and both definitions could easily be applied.
Prosecutors should consider the full ambit of criminal offending when drafting charges. Primary consideration should be given, when drafting charges, to ensuring that the court has adequate sentencing powers to deal with a defendant in light of the offending behaviour. The Code for Crown Prosecutors also states that charges should be selected which enable clear presentation of the case.
Where there is a choice of charges between harassment and stalking, prosecutors should consider the following principles before selecting correct charge:
- Has the defendant been previously warned about his behaviour?
- Has the defendant been convicted of a stalking offence?
- How recent was the stalking conviction?
- Does the evidence show a targeted campaign or fixated behaviour which can be best described as stalking?
- Does the previous conviction show a pattern of behaviour which raises concerns?
- Is there any specific reason why it would be more appropriate for the defendant to be charged with harassment and not stalking?
Each case needs to be considered on its own facts and its own merits, but where the course of conduct involves significant elements of stalking behaviour, a charge under section 2A or section 4A should be the starting point.
The crucial difference between the current offence under section 4 and the new offence under section 4A is that the latter introduces an additional element, namely that the defendant’s offending behaviour causes a victim “serious alarm or distress that has a substantial adverse effect on their usual day-to-day activities”.
One of the reasons for this introduction was to address victims’ concerns that there was a lacuna in the current offence, i.e. when a course of conduct fell short of causing a victim to feel fear of violence but nevertheless caused a victim serious alarm or distress. In this circumstance the police and prosecutors could only consider a section 2 summary offence. It is envisaged that the additional element in the new section 4A offence will enable cases to be prosecuted when the defendant’s behaviour falls short of fear of violence.
Prosecutors should therefore examine the end situation in terms of the impact on the victim to determine whether someone has been stalked or harassed. A detailed statement from the victim in addition to a Victim Impact Statement should be requested from the police in order to determine the right charge.
The following case studies are examples of when it might be appropriate to prosecute a defendant for harassment or stalking . Any charging decision will depend on the particular facts unique to the case and each should be considered on a case-by-case basis.
Case 1- section 2 Harassment
The victim is in her 80’s and suffers from a disability which causes her to walk with a limp. The defendant Rex and his family who live down the street from her, constantly mock her at her disability. When she was walking past the house, the defendant made fun of how slow she walks and started following her very closely up the street laughing at her . The victim felt distressed A few days later someone banged on her door for 5 minutes very loudly and she could hear a male laughing and saw it was Rex standing outside her door. He has since followed her making fun of her age and mobility problems on two further occasions when she has walked past the house. She feels very intimidated by Rex’s behaviour and is starting to feel trapped in her home. She is scared that if she reports Rex to the police, his family will make more trouble for her.
In this case a section 2 charge is appropriate as there is a course of conduct, the course of conduct shows a number of incidents which can be described as harassment, causing the victim alarm or distress.
This is also a disability crime as there is hostility based on the victim’s disability. It is an aggravating factor under Section 146 of the Criminal Justice Act 2003, allowing a heavier tariff to be used in sentencing than the crime might draw without the hate elements.
Case 2 – section 2A charge
A woman walks past a man as she leaves work and recognises him as an old work colleague. He stops her and says hello and states that he is just visiting some old colleagues. Two days later the woman sees the same man standing outside her house for ten minutes, hiding behind the hedge but runs off when she approaches him. The woman’s friend is visiting and says that she passed a strange man sitting in a car outside her house. The woman states that this might be someone she used to work with. She explains that she bumped in to him at work a couple of weeks ago and since then has seen him 4 or 5 times standing outside her house in the evening and watching her. The woman has become nervous and anxious and begins resorting to locking up all the windows and doors and keeps on checking a number of times. The friend suggests he may be living close by but the woman says she is sure he moved away from the area years ago. The woman says that the man has been watching her all the time and is making her feel anxious.
In this case a section 2A charge is appropriate as there is a course of conduct, the course of conduct has a number of features of stalking, and although the victim is troubled by the conduct, this falls short of serious alarm or distress.
Case 3 – section 4A charge
A young woman had had a brief relationship with a man some years her senior who she had met through a dating agency. When she terminated the liaison by text message, he refused to accept her decision. He repeatedly telephoned her, stating that they were destined to be together and insisting she should marry him. He sent hundreds of e-mails at her work and personal email accounts. He kept turning up at her door and began following her to work. He contacted her family to announce their engagement. When she still refused to have anything to do with him, his tone shifted and he wrote to her, stating that, if he could not have her, no-one would. As a result of his behaviour the victim moved out of her address, changed her mobile telephone number and moved to another job.
In this case a section 4A charge is appropriate as there is a course of conduct which causes the victim “serious alarm or distress” and the defendant’s behaviour has a substantial adverse effect on the day-to-day activities of the victim.
Case 4 – section 4A charge
The executive of a bank began receiving e-mails from a woman who appeared to hold him responsible for the failure of her business, the matter relating to a refusal to give a loan two years previously. Her tone was hostile. Over a period of months, her e-mails became more threatening in tone, and she demanded not only financial recompense, but a public apology. She started sending e-mails to his seniors and to clients of the bank, claiming negligence, then persecution and conspiracy. She set up a web-site, dedicated to her cause, containing inflammatory statements about the bank employee. His home address was published on the web-site with an exhortation that others should use it to write and protest on her behalf. The effect of the woman’s behaviours caused serious distress to the extent that the victim went on stress leave and was prescribed medication.
In this case a section 4A charge is appropriate as there is a course of conduct which causes the victim “serious alarm or distress” and the defendant’s behaviour has a substantial adverse effect on the day-to-day activities of the victim.
Pleas to Harassment when Stalking has been charged
When assessing the acceptability of a plea to harassment when stalking has been charged, prosecutors should always consider what pleas best reflect the totality of the offending and the overall impact on the victim. Rather than looking at particular incidents of stalking, prosecutors should note that it is the cumulative effect of the stalking behaviour on the victim which should be assessed.
If a plea to harassment is offered when the defendant has been charged with stalking, as a starting point, the victim’s view must be considered.
Prosecutors must then consider:
- Whether the defence has offered a plea that is in accordance with the evidence available to the prosecution;
- Have there been any changes in circumstances since the decision to charge stalking was made?
- If the victim is reluctant to attend court, would it be in the public interest to witness summons him or her?
- How strong is the evidence to demonstrate behaviours associated with stalking?
- What reasons are the defence giving for suggesting that a plea to harassment should be accepted?
- What explanation can be given to a victim who felt he/she had been stalked but a plea to harassment was accepted?
Prosecutors should bear in mind the fact that defendants will often seek to minimise the offence or give mitigation for their offence or seek to avoid the “stigma” of being labelled as a stalker. In general, we should proceed on the basis that if the behaviour is clearly indicative of stalking, then that is the appropriate charge and should not accept a plea to harassment simply out of expediency.
Since the correct application of a restraining order can be a significant part in managing the risks to a victim and in preventing further harassment, the investigating officer should provide information about possible conditions for an order as soon as possible. Prosecutors should also ensure, as part of reviewing the case, that a victim’s view on a restraining order is sought from the outset.
Restraining orders should be drafted to meet the particular risks presented in each case and should not be a repetition of routine clauses. One issue to be addressed is whether or not it is safe to include the victim’s address on the order. Suggested conditions include:
- not (either alone or by means of agents) to directly or indirectly contact, harass, alarm, or distress the victim and others as appropriate;
- not to knowingly approach within the boundary of (specify street or road names and attach a copy of an annotated map to clarify parameters) any premises where the victim and others as appropriate reside, work or frequent;
- not to telephone, fax, communicate by letter, text, electronic mail or internet with the victim and others as appropriate, or to send or solicit any correspondence whatsoever;
- not to display any material relating to the victim on social networking sites including YouTube, Facebook and Twitter;
- not to retain, record or research by any means, private, confidential or personal facts, or information relating to the victim and others as appropriate; or
- not to use a different name or to change names without immediately notifying the court and/or the police.
In particular, it is essential that the order is checked for accuracy – both in terms of content and spelling. Where the drafting of the order is incorrect, we may not be able to deal with breaches appropriately.
The purpose of the order is to protect the victim (or other named person) from any future harassment or fear of violence, rather than to punish the defendant. The order can be granted for a specified or indeterminate period of time, therefore, leaving the onus on the defendant to satisfy the court that they no longer present a risk to the victim. When preparing an order, consideration should be given to specifying the period of time that it should remain in force.
The restraining order is imposed at the time of sentence. It is imperative that we are supplied with relevant information such as a Victim Personal Statement or MG6 form by the police in good time for the sentencing hearing.
Useful items to include within this information:
- history of the relationship, particularly if there has been violence in the past;
- previous convictions for a similar type of behaviour;
- victim’s injuries, including psychiatric injury;
- if and how the offender planned the harassment;
- effect on any third party (spouse, partner, family, neighbours, work colleagues);
- any civil orders made including non-molestation orders or injunctions;
- likelihood of the offender offending again;
- status of the victim’s current relationship with the offender; and
- the victim’s views on his or her own and the safety of others if a restraining order is or is not made.
It is important that the terms of orders are clear, but not so prescriptive as to allow alternative forms of harassment. Geographical limitations, such as staying 300 metres away from the victim, should be suggested with care. Difficulties could arise in proving distances should there be a breach, and harassment may be possible, for example, from 301 metres.
Restraining orders should also be considered where the defendant receives a custodial penalty, as it is possible to harass or cause fear of violence from prison through the use of telephones, letters or third parties. The prison can be informed of the existence of an order by the police. The order can and sometimes should exceed the custodial period.
A defendant may seek to make repeated applications for variation of the restraining order so as to continue harassing the victim. In such cases, we should remind the court of its powers to control abuse of its process. Victims should be informed of applications to vary, and asked to express their views and to attend if necessary. Further information about restraining orders and the prosecution of breach of the orders (as well as variation) can be found in Restraining Orders , elsewhere in the Legal Guidance.
Breach of a Restraining Order
Sections 3(6) and 5(5) make it an offence for the defendant to do anything which he is prohibited from doing under an injunction issued under section 3, or a restraining order issued under section 5.
It should be noted that whereas the section 2 and 4 offences require a course of conduct, breaches of court orders require only a single act.
Defence to Breach of Criminal or Civil Order
The sole defence to a breach of a criminal or a civil order is that the defendant had a reasonable excuse. The standard of proof, which it is for the defendant to put forward, is the balance of probabilities.
The PHA was introduced in 1997 largely to tackle stalking, though the offence of harassment extends to any form of persistent conduct which causes another alarm or distress. Therefore the range of behaviour that is capable of constituting an offence under the Act is potentially very wide. Examples might include threatening emails, telephone calls, threatening letters, verbal abuse, criminal damage, etc.
In its paper ‘Animal Welfare – Human Rights – Protecting People from Animal Rights Extremists’ (July 2004), the Government announced that it wished to strengthen the law to tackle campaigns of harassment by animal rights extremists and create a new offence of protesting outside homes. It also flagged its intention to consider new offences of causing economic damage to the suppliers of firms or research groups engaged in the legitimate and licensed use of animals.
The Government sought to capture behaviour which causes alarm or distress to individuals to the extent that organisations, universities or companies are deterred from carrying out their lawful business. The Serious Organised Crime and Police Act 2005 (SOCPA) made several amendments to the PHA to enable organisations and their employees to be better protected:
Harassment of two or more persons
Section 125(2) of the SOCPA added a new subsection 1(1A) to the PHA making it an offence for a person (or persons) to pursue a course of conduct involving the harassment of two or more persons on separate occasions which the defendant knows or ought to know involves harassment, the purpose of which is to persuade any person (not necessarily one of the persons being harassed) not to do something that he is entitled to do or to do something he is not under any obligation to do.
Injunctions to protect persons
Section 125(5) of the SOCPA inserted section 3A into the PHA, which permits a person who is, or may be, a victim of conduct within section 1(1A) of the PHA to apply to the High Court or County Court for an injunction.
Course of conduct definition
Section 125(7) of the SOCPA amended the definition of course of conduct in section 7(3) of the PHA so that in relation to two or more persons a course of conduct means conduct on at least one occasion in relation to each person. Again this allows a wider application of the legislation in terms of activities carried out in a group context. This means that companies now have the option to take out injunctions against people harassing their employees in the name of the company and will not have to take action in the name of a particular employee.
However, a course of conduct must involve conduct on at least two occasions, and in relation to the harassment of two or more persons, it means conduct on at least one occasion in relation to each person. It is clearly a matter for the courts, on a case by case basis to determine whether two or more incidents amount to a course of conduct which consequently leads to persons being alarmed or distressed.
Harassment of a person in their own Home
Section 126 of the SOCPA amended the Criminal Justice and Police Act 2001(CJPA) and created a new offence of causing harassment, alarm or distress to a person in his or her home. The offence contains four ingredients which need to be proved. A person will commit an offence under section 42A(1) if:
- he or she is present outside or in the vicinity of any premises that are used as a dwelling;
- he or she is there to represent to the resident or another individual or persuade the resident or another individual that he should not do something he is entitled to do; or that he or she should do something he is not under any obligation to do;
- the person intends his presence to amount to the harassment of, or to cause alarm or distress to the resident; or knows or ought to know that his presence is likely to do so; and
- the presence of the defendant amounts to the harassment of, or causes alarm or distress to the resident, a person in the resident’s dwelling, or a person in another dwelling in the vicinity of the resident’s dwelling; or is likely to result in the harassment of, or cause alarm or distress of any such person.
The purpose of this offence is to give the police the ability to deal with harassing or intimidatory behaviour by individuals towards a person in his home even after an incident has taken place. This means that the police can deal with protestors after the event. This will be useful if, for example, there is evidence of a protest on CCTV but the police were not present, or the police were present and could identify the protestors but there was some difficulty in enforcing a direction at the scene of the protest.
The offence in section 42A of the CJPA might be used where, for example, protestors had conducted a rooftop protest at a person’s home. If the police were not in attendance, but the resident had CCTV evidence of particular individuals on the roof of his house, and he had been harassed, alarmed or distressed by the presence of the protestors, the police could arrest the suspects for the new offence.
The penalty for this offence is imprisonment for a term not exceeding six months or a fine not exceeding level 4 on the standard scale or both.
Section 42A(2) of the CJPA defines persons who can be subjected to harassment, alarm or distress by the presence of others at their home. They are the resident; a person in the resident’s dwelling, for example, a child or partner; and a person in another dwelling in the vicinity of the resident’s dwelling, i.e. a neighbour.
There is no legal definition of “vicinity” and ultimately it is for the courts to determine what is meant by it as a matter of fact.
Breach of a non-molestation order
Section 1 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA) came into force on 1 July 2007. It amends the Family Law Act 1996 by inserting a new section 42A, which makes it a criminal offence to breach a non-molestation order.
The offence of breach of a non-molestation order was introduced following concern that the available civil procedure was ineffective in preventing and deterring domestic violence. Previously, if a person breached their non-molestation order, he or she could only be arrested for a civil contempt of court if a power of arrest was attached to the order. The maximum penalty for contempt is two years’ imprisonment.
The offence now may be punished either as a criminal offence with a maximum penalty of five years’ imprisonment, or as a civil contempt of court as before.
The DVCVA aims to place complainants at the heart of the criminal justice system. Accordingly, section 1 effectively gives complainants a choice on the mechanism by which a breach of a non-molestation order is dealt with. The complainant can either call the police to have the breach dealt with within the criminal jurisdiction, or they can make an application to have the person committed to custody for contempt application in the civil jurisdiction.
The two jurisdictions are exclusive and prosecutors will not be involved in civil proceedings. Guidance on Section 1 Domestic Violence, Crime and Victims Act 2004: Breach of a civil non-molestation order is available elsewhere in the Legal Guidance.
Section 127 of the SOCPA amended section 42 of the CJPA to provide the police with an additional power to direct a person to leave the vicinity and not return within such period as a constable may specify – which can be up to 3 months. If person does return within the period specified in the direction, beginning with the date on which the direction is given, and does so for the purposes of representing to or persuading a person not to do something he is entitled to do or to do something he is not obliged to do, he commits an offence.
The penalty for this offence is imprisonment for a term not exceeding six months or a fine not exceeding level 4 on the standard scale or both.
The maximum period for which a person can be required not to return is 3 months. The constable issuing the direction has discretion in deciding how long a person should be required not to return. An example of when this power is likely to be appropriate is where there is evidence that the person whom the constable is directing to leave is also a regular protestor at particular premises and that requiring them not to return for a specified period will prevent harassment, alarm or distress being caused to the resident.
An offence will only be committed where a person returns within that specified period for the purpose of representing to, or persuading the resident not to do something he is entitled to do or to do something he is not obliged to do. The mere presence of a person in the vicinity may not be sufficient to prove the offence.
Enter and search premises
Section 112 of the Protection of Freedoms Act 2012 gives the police additional powers. Police officers will have a power of entry in relation to the new offence of stalking under section 2A of the Protection from Harassment Act 1997. The power of entry is exercisable by warrant and will allow the police to enter and search premises if there are reasonable grounds for believing that an offence under new section 2A has been or is being committed. A constable may also seize and retain anything for which the search has been authorised. The new powers to the police will aid in investigation and evidential gathering for example in harassment cases that involve cyber stalking. It is sometimes difficult to link the stalking behaviour of the offender to the victim without seizing the equipment used to stalk the victims. A power to search for and seize computers or other electronic equipment that may have been used to commit the offence would potentially strengthen the prosecution case.
When giving advice on cases of stalking and harassment, prosecutors should ensure that they have regard to the CPS Policy and legal guidance on prosecuting cases involving domestic violence, the Code for Crown Prosecutors, and the ACPO Guidance entitled: ‘ACPO Practice Advice on investigating cases and Stalking and Harassment 2009’, is available at: www.acpo.police.uk/documents/crime/2009/200908CRISAH01.pdf.
There is not a general requirement for the police to refer all cases of stalking and harassment for a charging decision. However, many of these cases will fall within the definition of domestic violence and therefore in certain circumstances require CPS authority to charge. The police are also encouraged to seek early consultation in cases which may be complex or involve challenging issues. Given the often complex nature of cases involving stalking and harassment it is likely that many stalking cases will be referred through to the CPS for pre-charge advice.
In cases of stalking where the harassing behaviour is prolonged and targeted and the victim is considered to be at high risk, it is essential that management of the case is carefully considered. Some more complex and difficult cases may require the personal allocation of the file to a senior prosecutor who is aware of the problems that may be encountered when dealing with cases of stalking and harassment.
Alternatively, in less serious cases, advice from such a prosecutor may suffice. It is essential that the victim is fully aware of the decisions being made as they may directly impact on the victim’s safety. Early consultation with the allocated police officer and contact with the specified Witness Care Unit are also important in ensuring that the risks in the case are understood, as well ensuring that any further offending reported is addressed as quickly as possible, as this behaviour can dramatically increase the risk for the victim.
Early consultation and charge
Generally, the police should provide the following background information:
- the ability and willingness of the victim to testify;
- the history of any relationships or contact, particularly if there has been violence and/or abuse in the past;
- details of any civil orders made and whether there have been any breaches;
- whether the suspect has made any threats since the incident;
- the police officer’s view on the chances that the defendant will re-offend;
- the status of the relationship between the victim and the defendant;
- the effect on the relationship of continuing with the prosecution against the victim’s wishes;
- the victim’s view on their own and their children’s safety if a prosecution does or does not follow;
- whether counter allegations have been made;
- information on whether the victim has been contacted by the defendant, his/her friends, relatives, or associates (either since the incident or post-charge); and
- information from other agencies or organisations who are involved with the family.
Information Recorded by Victims
Given that this type of crime, by its nature, is often repetitive, it is sometimes helpful for victims to be encouraged to maintain a record or diary of events. Ideally, the record should be maintained in a bound book, separately from personal details such as appointment times and other endorsements. It should also be completed as soon as possible after each event, with all entries timed and dated. This record could also be kept electronically on a computer and may be automatically timed. For example, by the victim emailing the document to their own email address as each entry is included. Victims should be encouraged to also:
- note details of witnesses who may have observed or heard these events;
- keep a record of how the defendant looked, details of their clothing or vehicle;
- stored messages or tape any calls made by the defendant;
- to use 1471 on the phone and write down details of calls received including the time received and the telephone numbers, this includes unanswered calls; and
- victims should also not to be afraid to inform neighbours, friends and work colleagues (unless they suspect that the individual is indeed the suspect in the case). They should be asked to ask them to log any suspect behaviour.
Therefore, when advising on cases of stalking and harassment, even where there has been a decision for no further action, prosecutors should remember to advise police officers to instruct victims to keep such a record.
The nature of stalking and harassment, particularly where the victim has been followed or subjected to periods of observation, will usually mean that the defendant has spent significant periods of time in the vicinity of the victim’s home, place of work or other places that the victim habitually visits. It is therefore important that police officers should consider enquiries with neighbours and other potential witnesses such as routine visitors to the area. Prosecutors should encourage police officers to consider:
- neighbours whose homes or workplace are in a line of sight of the location of the incident;
- those resident or working adjacent to likely routes taken by the defendant;
- those near to or who are users of potential sites for parking a vehicle;
- those who use nearby leisure facilities, e.g. dog walking, sports facilities and playgrounds; and
- where the defendant has obtained accommodation near the victim, the investigating officer should identify the address and interview neighbours about the defendant’s movements.
Impact and Dynamics of Stalking and Harassment
There are a number of circumstances in which stalking and harassment can occur:
- in the context of domestic violence;
- when the suspect is personally known to the victim, for example, a neighbour or work colleague;
- where the suspect does not personally know the victim but their identity is known. This could include harassment of a person in the public eye, but is not restricted to this;
- where the identity of the suspect is not known. This could be as a result of a rogue telephone call by the suspect the outcome of which is ongoing harassment; and
- where the victim(s) is/are a target of a campaign involving domestic extremism (for example, animal rights extremists).
In the majority of stalking and harassment cases, there will be some connection between the victim and the suspect, even if the victim is unaware of who the suspect is (for example, where they have only briefly met before in passing). Whenever a case of stalking and harassment falls within the definition of domestic violence the appropriate guidance should be followed. This should occur even when the victim or others would not necessarily classify the situation as one of domestic violence, for example, when the victim and suspect have only had a very brief intimate relationship; to the extent that the victim may not even believe that the behaviour falls within the definition of a relationship.
Behaviour by a suspect as part of a campaign of stalking and harassment could include:
- frequent unwanted contact, for example, attending at the home or the workplace of the victim, telephone calls, text messages, emails or use of other mechanisms such as the internet and social networking sites;
- driving past the victim’s home or work;
- following or watching the victim;
- sending letters or unwanted ‘gifts’ or items to the victim;
- arranging for others to deliver unwanted items to the victim;
- damaging the victim’s property;
- boasting that they are aware of the location or address of other family members or children;
- burglary or robbery of the victim’s home, workplace, vehicle or other;
- becoming further and further embedded within a victim’s life, for example, by making contact with their friends and family;
- threats of physical harm to the victim (including sexual violence and threats to kill);
- physical and/or sexual assault of the victim and even murder.
Prosecutors should consider the full ambit of criminal offending when drafting charges. Primary consideration should be given, when drafting charges or accepting pleas, to ensuring that the court has adequate sentencing powers to deal with a defendant in light of the offending behaviour.
It is possible for behaviour directed at one person to harass another – so long as it can be proved that the suspect knew or ought to have known that his or her behaviour was causing harassment to another. Victims may also be forced to alter their lifestyle choices which can include having to move home or job, restricting their social activities or otherwise altering their routines.
Also prosecutors should be aware that restricting the suspect’s ability to stalk or harass a particular victim may have unintended consequences. The suspect may displace their attention from that victim to another: for example, where the suspect is motivated to harass a member of a particular profession such as a teacher, judge or police officer, they may direct further harassment towards another member of the same profession.
Harassment can take place on the internet and through the misuse of email. This is sometimes known as ‘cyberstalking’. This can include the use of social networking sites, chat rooms and other forums facilitated by technology. The internet can be used for a range of purposes relating to harassment, for example:
- to locate personal information about a victim;
- to communicate with the victim;
- as a means of surveillance of the victim;
- identity theft such as subscribing the victim to services, purchasing goods and services in their name;
- damaging the reputation of the victim;
- electronic sabotage such as spamming and sending viruses; or
- tricking other internet users into harassing or threatening a victim.
Public Order and Political Protest
Organisations such as companies, Government departments or religious institutions may also be subjected to harassment, in furtherance of a political or other aim. In some cases, this activity will include the harassment of individuals who work for, or who are otherwise associated with, the organisation.
When considering such cases, it is important to balance the right to legitimate protest, with the rights of any individual to be free from harassment. Section 1(1A) of the PHA would potentially cover a campaign against a particular organisation, which involved actions relating to different members on different occasions.
Disputes between neighbours often include issues of harassment, which may be the result of a relationship deteriorating over a lengthy period of time. Such disputes may include complicated counter-allegations and repeat reports to the police. These may include civil as well as criminal issues. It is important when considering such cases to determine whether there is evidence of a clearly aggrieved party and perpetrator.
Types of Stalking and Stalkers
There may be different motivating factors which prompt the defendant’s behaviour. These could include: revenge; retribution; loneliness; resentment; a desire for reconciliation; response to a perceived insult or humiliation; or a desire for control. The defendant may have a delusional belief that an individual is in love with them (termed ‘erotomania’), and that sooner or later they will respond. In other cases, the behaviour may relate to the obsessive preoccupation with a particular cause or issue. These motivations will inevitably impact on the risk posed by a suspect to a victim.
Information about the motivation of the suspect is crucial in informing the investigation, the approach to risk and ensuring that suspects are subject to an appropriate multi-agency response. For example, the recognition of an individual’s delusional fixation on another person can enable them to access mental health services which could assist.
In ‘Study of Stalkers’ (1999) Mullen, Pathe, Purcell and Stuart provided a useful classification for stalking which is now generally accepted. It comprises five motivational types, that can be summarised as:
- the Rejected Stalker commences stalking after the breakdown of an important relationship that was usually, but not always, sexually intimate in nature. In this group the stalking reflects a desire for reconciliation, revenge, or a fluctuating mixture of both;
- the Intimacy Seeker desires a relationship with someone who has engaged his or her affection and who, he or she is convinced, already does, or will, reciprocate that love despite obvious evidence to the contrary;
- the Incompetent Suitor also engages in stalking to establish a relationship. However, unlike the Intimacy Seeker, he or she is simply seeking a date or a sexual encounter;
- the Resentful Stalker sets out to frighten and distress the victim to exact revenge for an actual or supposed injury. Resentful are differentiated from Rejected Stalkers in that the cause of their resentment does not lie in rejection from an intimate relationship; and
- the Predatory Stalker engages in pursuit behaviour in order to obtain sexual gratification.
Stalking and Harassment and the CPS Violence Against Women and Girls Strategy
The Violence Against Women and Girls (VAWG) Strategy provides an overarching framework for crimes that have been identified as primarily, although not exclusively, committed by men against women, within a context of power and control. Harassment is included within the domestic violence strand and as such should therefore be addressed within the overall framework of VAWG. Where appropriate, prosecutors should make links with other VAWG strands such as rape and sexual offences, honour based violence and forced marriage, child abuse, crimes against the older person, pornography, human trafficking, prostitution, and female genital mutilation.
CPS Employee’s Guide on Violence against Women and Girls
The CPS Employee’s Guide on Violence Against Women was published in March 2010. It includes practical guidance to assist those members of staff who are victims of stalking and harassment either in a domestic or non-domestic environment. It includes information to reduce any affected employee’s risk by considering:
- their working arrangements;
- their communication needs;
- security arrangements; and
- information about concealing their identity.
Prosecutors should also recognise the diversity of victims. Victims’ experiences of harassment and stalking may be affected by identities distinct from gender, like their ethnicity, age, sexuality, disability, immigration status, and religion or belief. Each victim’s individual experiences of harassment and stalking will be different, and some victims may encounter additional barriers to accessing justice. For example, a young woman subjected to stalking may find it difficult to report it because she fears she will not be taken seriously because of her age. The safety and needs of each victim should be assessed on an individual basis.
Identification and Flagging of Cases
Cases of stalking and harassment that fall within the Government definition of domestic violence should be identified both on the file jacket (for example, through a readily identifiable sticker, marking it with the letters ‘DV’ or using a different colour file jacket) and flagged on CMS as domestic violence. Likewise, some cases will need more than one flag to ensure that the correct case handling procedures are followed and the volume and outcomes of such cases can be accurately monitored. There may be instances, for example, where the case also includes racism, homophobia or rape. These cases, together with cases of honour based violence, forced marriage and child abuse should be identified and cross-flagged to reflect this.
Recording all of this information enables us to monitor our performance. This is particularly relevant where historically it has been more difficult to achieve a successful outcome for victims. We are then able to identify areas where improvements need to be made (including in relation to victim support and safety). It also helps ensure that if appropriate, an experienced prosecutor can be assigned to the case, and that all of the relevant applications and case handling issues can be dealt with in a timely and effective manner.
Identification, Assessing and Managing Risk
Identifying quickly and accurately the risks posed by a defendant toward a victim, group of victims or indeed a victim’s family is a crucial step in increasing the safety of a victim. Cases involving stalking and harassment can sometimes mean that the victim is particularly vulnerable due to the determined and persistent nature of the suspect’s behaviour. Prosecutors should ensure that when they are presented with a case either for charge or at court, a full risk assessment has been recently conducted by the police. It is crucial that the police or other agencies involved with the victim or suspect identify all risks to the victim and others (which may also include risks to the suspect), and where possible take appropriate action to reduce or remove such risks. In some cases other professionals and agencies such as probation officers and mental health professionals may feed into this risk assessment process.
Information about risk factors can be obtained from a number of sources including police information systems, victims, witnesses, other agencies and people close to the suspect and victim. The victim, although an important source of information, is just one avenue that should be explored. In the majority of cases, we in the CPS will not have information independent of the police that can inform the process. However, where we have obtained information, for example, if a victim has telephoned the CPS about witness intimidation or additional information is gleaned by the Witness Care Unit as part of the pre-trial preparation process, this information should be fed through to the relevant officer as a priority.
In making an identification and assessment of risk, police officers should give consideration to information around:
- the harassment behaviour involved;
- the suspect (for example, previous history of behaviour and their circumstances); and
- the victim (for example, their circumstances and any particular vulnerability).
Matters to be considered include:
- the harassing behaviour is happening more frequently or escalating in terms of the level of violence used;
- the suspect is physically present at the victim’s home, workplace or place where they can regularly be found;
- the harassing behaviour is being directed against people surrounding the victim (for example, partner, family, friends, children, neighbours and work colleagues);
- threats of harm are being made to the victim or someone else – this might include indirect threats; and
- the occurrence of destruction or vandalism of property belonging to either the victim or someone else.
The suspect may have:
- previous convictions (or alternatively there may be relevant police intelligence) for violence or other offending (for example, domestic abuse, sexual violence, other violence, theft, and criminal damage);
- engaged in harassment on previous occasions against the victim or someone else;
- harmed the victim or anyone else (including family, or anyone else the victim may have had a relationship with, or stranger), physically or sexually;
- harmed animals – in particular harmed pets belonging to the victim or those close to the victim;
- breached an injunction, non-molestation order, other court order or bail conditions;
- encouraged other people to assist in the stalking or harassment (whether they are conscious of their involvement or not);
- considerable knowledge about the victim. In particular, the victim’s work, home, personal lifestyle and movements (for example, due to the relationship with the victim or access to information as a result of the defendant’s profession or expertise);
- an occupation/interests which are a source of concern (for example, access to weapons, firearms licence holder or access to confidential information);
- threatened or attempted suicide;
- a history of misuse of drugs (prescription or other) or alcohol; and
- mental health issues (including borderline personality disorders) or exhibit bizarre behaviour including evidence of delusions or hallucinations.
Risk factors that are relevant to the victim include:
- they may be fearful of what the suspect might do to them or someone else. This degree of fear maybe shared by the victim’s friends, family and colleagues;
- the nature of the suspect’s behaviour may be so extreme that the victim’s physical and mental health are affected by the harassment;
- their vulnerability which may make them particularly susceptible to harassment, such as mental health difficulties, physical disability, learning difficulties, or residence in an isolated location;
- whether they truly comprehend any risks and are capable of exercising caution, for example, through applying appropriate personal safety measures such as carrying a personal alarm or securing their home.