Stalking and Harassment
- Criminal Legislation
- Protection from Harassment Act 1997
- Section 2 offence - Harassment
- Section 2A offence - Stalking
- Section 4 offence - Putting People in Fear of Violence
- Section 4A offence - Stalking involving fear of violence or serious alarm or distress
- Defences generally
- A Course of Conduct
- Earlier Incidents
- Secretary of State's Certificate - section 12
- Charging Guidance
- Restraining Orders
- Breach of a Restraining Order
- Serious Organised Crime and Police Act 2005 - Amendments to the PHA
- Section 2B Protection from Harassment Act 1997 - new police powers to enter and search premises in relation to the 2A offence
- Section 1 of the Domestic Violence, Crime and Victims Act 2004: Breach of a non-molestation order to be a criminal offence
- Case Building
- Impact and Dynamics of Stalking and Harassment
- Stalking and Harassment and the CPS Violence Against Women Strategy
- Identification and Flagging of Cases
- Identification, Assessing and Managing Risk
- Victim and Witness Support and Safety
- Civil Proceedings and Legislation
This legal guidance addresses behaviour which is repeated and unwanted by the victim and which causes the victim to have a negative reaction in terms of 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 we work closely with the police and other agencies to ensure that the best evidence is gathered and presented to the court. 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: CPS Policy for Prosecuting Cases of Domestic Violence and Domestic Violence Legal Guidance.
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.
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 it can include repeated attempts to impose unwanted communications and contacts upon a victim in a manner that could be expected to cause distress or fear in any reasonable person.
The 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.
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.
Certain groups of professionals are particularly susceptible to harassment connected with their work. These include doctors, judges, police officers, teachers and other authority and public figures. It may also involve harassment of individuals as a result of their employment by a particular employer.
The Protection of Freedoms Act 2012 created two new offences of stalking by inserting new sections 2A and 4A into the PHA 1997. The two offences are in force from 25 November 2012 and provide further options for prosecutors to consider when selecting charges. The Home Office have issued guidelines and this can be accessed via the following link: http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars/circulars-2012/018-2012/.
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. These include: physical following; contacting, or attempting to contact a person by any means (this may be through friends, work colleagues, family or technology); or, other intrusions into the victim's privacy such as loitering in a particular place or watching or spying on a person.
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.
This section covers the criminal legislation most relevant to cases of stalking and harassment.
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.
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 harassment from the defendant.
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.
The elements of the 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.
Or section 1(1A), as inserted by section 125(2) of the Serious Organised Crime and Police Act 2005 (SOCPA)
- 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 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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 clearcut and both definitions could easily be applied.
Some general principles to be considered are as follows:
- It is helpful and relevant when a defendant has been convicted of a stalking offence for their record of convictions to clearly show this.
- 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 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 under sections 2A and 4A. As stated above, 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 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.,p>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 2 - 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 3 - section 4A chargeThe 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.
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.
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 - Section 5, Protection from Harassment Act 1997, elsewhere in the Legal Guidance.
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.
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 SOCPA made several amendments to the PHA to enable organisations and their employees to be better protected:
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.
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.
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.
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.
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.
Section 2B Protection from Harassment Act 1997 - new police powers to enter and search premises in relation to the 2A offence
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.
Section 1 of the Domestic Violence, Crime and Victims Act 2004: Breach of a non-molestation order to be a criminal offence
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. The offence may be punished either as a criminal offence with a maximum penalty of five years' imprisonment, or as a civil contempt of court. The new offence of breach of a non-molestation order was introduced following concern that the 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 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.
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
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.
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.
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.
Further guidance can be found in Communications Offences, elsewhere in the Legal Guidance.
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.
Further guidane can be found in the Legal Guidance on Public Protests.
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.
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.
For further information on case studies on stalking see the following link: Chartered Forensic Psychologist Dr Lorraine Sheridan - www.nss.org.uk/about/stalking-facts-figures/stalker-types/.
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.
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.
Links to other relevant policies and legal guidance:
- Violence Against Women and Girls Guidance
- Domestic Violence Legal Guidance
- CPS Policy on prosecuting cases of Domestic Violence
- CPS Policy for prosecuting cases of Rape
- Guidance on Prosecuting Cases of Child Abuse
- Prostitution and Exploitation of Prostitution
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.
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.
It is essential that victims receive information on harassment advising them of the practical steps they can take to protect themselves from harm. Police officers should be reminded of this best practise and any relevant contact numbers should be included in any correspondence.
Victims may not know the full extent of the suspect's conduct therefore it is essential that the victim is encouraged when making a statement to consider all potential lines of enquiry. These could include:
- history of previous reports and incidents relating to the suspect;
- evidence of preparation for harassment made by the suspect;
- telecommunications providers;
- satellite and mobile phones;
- house-to-house enquiries;
- victim's previous medical history in relation to physical or psychiatric injury;
- victim's own records or diaries;
- other evidence collected by the victim including correspondence from the suspect;
- evidence and records kept by other witnesses; and
- physical evidence such as documents, handwriting, fingerprints and sources of DNA.
Opportunity should be taken to remind officers to signpost victims, where appropriate, through to a specific support agency. This could include an Independent Domestic Violence Adviser or indeed the national helpline or specific national charities which have been established to assist victims of this type of behaviour.
Organisations providing support include the following:
The National Stalking Helpline
Telephone: 0808 802 0300
- Practical advice and information to anyone who is currently or previously has been affected by harassment or stalking.
Protection Against Stalking
- Protection against Stalking (formerly The CRT Trust) works jointly with relevant agencies to increase awareness of Stalking and Harassment to ensure victims receive all the protection and help they need to rebuild their lives and live free of fear.
Network for Surviving Stalking
- The charity Network for Surviving Stalking represents UK stalking victims and their families. Established by stalking victim Tracey Morgan 9 years ago, NSS listens to the views of victims and professionals and uses their knowledge and experience to help others. NSS helps run the National Stalking Helpline.
The Suzy Lamplugh Trust
Telephone: 020 7091 0014
- This organisation aims to create a safer society and enable everyone to live safer lives. It works for the reduction, and fear of, crime against the person through campaigning for policy and legislative change, research, training, and advice.
Telephone: 0845 30 30 900
- Helpline for anyone affected by crime.
Wales Domestic Abuse Helpline
Telephone: 0808 80 10 800
Telephone: 0808 2000 247 - Freephone 24 hour National Domestic Violence Helpline run in partnership between Women's Aid and Refuge.
The victim should be advised to identify any sources of personal information that may provide information to the suspect. These could include mailing lists, the electoral roll, school or work records, internet sites, wastepaper and dustbins. Victims should be advised not to dispose of any personal information or correspondence via a dustbin. Such items should be shredded, burnt or disposed of by some other means which are not accessible to the suspect.
Victims can also be made aware that there is anonymous voter registration available for people at risk. For further information see www.electoralcommission.org.uk.
The victim should be encouraged to change their passwords for gaining access to personal information via the telephone or internet. In particular, the use of the victim's mother's maiden name as a verification code for access to personal details should be discouraged.
Risk assessment is a process which should comply with any nationally or locally agreed system (for example, relating to domestic abuse or forced marriage and honour based violence cases). Where possible other agencies should be involved to ensure effective management of risk and generic risk assessment tools which are capable of being used by a multitude of agencies that maybe involved with a victim should be employed.
The introduction and implementation of the DASH (2009) model means that for the first time police forces and a large number of partner agencies across the UK will be using a common checklist to screen for risk. More information can be found at: www.caada.org.uk
Additionally, in cases of stalking and harassment the police can also utilise S-DASH which enables them to ask additional questions specifically to identifying high risk cases of stalking and harassment. Prosecutors should ensure that a copy of the risk assessment tool (and not just the risk assessment rating) is available within the file. It is essential that this is kept confidential and should not be disclosed to the defendant as to do so could cause extreme danger to the victim or the victim's children or family.
In general, where a risk factor is identified, measures should be taken to address that factor. For example, factors relating to harassment may require safety and security measures to be put in place. Factors relating to the suspect may require law enforcement measures or other police action (for example, revocation of a firearm's licence). Prosecutors should ensure that they have considered this in particular when considering any application for bail or when considering bail conditions.
Full assessment of risk, and formulation of plans for a defendant's management post conviction, are likely to require assessment by a psychiatrist or a psychologist using specialist risk assessment tools, such as the Stalking Risk Profile. Such assessments are only likely to be available if ordered by the court.
Multi-agency risk assessment conferences (MARACs) are meetings attended by representatives of the agencies that have a role in protecting a victim in a particular case. The police or probation frequently takes the lead role. The aims of the MARAC are as follows:
- to share information to increase the safety, health and well-being of victims;
- to construct jointly and implement a risk management plan that provides professional support to all those at risk and that reduces the risk of harm;
- to reduce repeat victimisation;
- to improve agency accountability;
- to improve support for staff involved in high risk cases; and
- to assess whether the perpetrator might be a risk to other individuals or to the general community.
The role of the MARAC is to facilitate, monitor and evaluate effective information sharing to enable appropriate actions to be taken to increase public safety. By sharing information, agencies can establish a better picture of victims' situations and can develop responses that are tailored to the needs and goals of individual victims and their children. Safe information sharing also allows agencies to manage the perpetrator in ways that reduce risk. In practice referrals to MARAC will often come from the police.
A key product from the MARAC process is the production and implementation of a multi-agency risk management plan. This should provide professional support to all those at risk, reducing the risk of harm and repeat victimisation. The agencies invited to be part of the MARAC process should be any that have a role to play in the victim's safety. These may include:
- NHS Accident and Emergency;
- Adult social services;
- Black and minority ethnic services;
- CAFCASS (Child and Family Court Advisory and Support Service);
- children and young people's services;
- drug and alcohol services;
- domestic violence support services for victims;
- health visitors, school nurses and community midwives;
- housing and/or homelessness services;
- Independent Domestic Violence Advisers (IDVAs);
- Lesbian, gay, bisexual and transsexual (LGBT) services;
- mental health services;
- probation; and
- sexual violence services.
The CPS is not represented at MARAC because it is seldom that we have any information that is not already known to the police. After the MARAC meeting a plan is compiled and comprises of the actions that each organisation will be carrying out to reduce the risk to the victim. This information is not linked to the criminal case. However, where material is held by the police as a result of the MARAC that informs the criminal cases or undermines the prosecution case or assists the defence there maybe a requirement for the information be relayed to the CPS.
Additionally, if the prosecutor becomes aware of information that may alter the risk status of the victim, for example, information obtained at court, this should be relayed as quickly as possible to the police or Independent Domestic Violence Advisers. Prosecutors should make enquiries to find out whether any of the information discussed as part of these protection arrangements are of relevance to the criminal case. This is both in terms of case building and the potential disclosure of undermining material to the defence.
The Fixated Threat Assessment Centre (FTAC) is a joint police/mental health unit established by the Home Office, the Department of Health and the Metropolitan Police Service. It assesses and manages the risk posed by people who engage in bizarre communications or contact prominent people in public life and who additionally pose a risk to the public, the prominent person and themselves. This is particularly so in environments where there are armed police officers. This involves referrals to mental health services (sometimes including use of police powers under the Mental Health Act 1983) and where necessary criminal investigation. They can be a useful contact in complex cases.
Fixated Threat Assessment Centre
4/5 Buckingham Gate
London SW1E 6JP
Telephone: 020 8721 5270
Fax: 020 8721 5273
The Cocoon Watch scheme requires the help and support of neighbours, family and relevant agencies in further protecting the victim by ensuring contact is made with the police immediately if further incidents occur. A Cocoon Watch is only implemented with the informed consent of the victim. In some cases, in consultation with the victim, it might be appropriate to make the suspect aware of the action. Remembering that defendants are not always identified early in proceedings in this type of offending it is essential that if such a scheme is to be considered the police ensure that the defendant is not one of those to whom disclosure is to be made. Cocoon Watch should not be implemented where there is any reason to suspect that neighbours and/or family may be party to the stalking or harassment, or if the victim might feel further endangered by neighbours being informed. For example, revealing the sexuality of a victim could place them at risk of homophobic abuse.
As part of Police Watch, the police provide a visible police presence to both the victim and the suspect. It involves regular police patrols within the vicinity of the incident following a report. In some situations, police officers might visit to check on the safety of the victim.
There is no concept of official 'warnings' under the PHA. However, there are some circumstances in which it can be useful to inform a suspect verbally and/or in writing that their alleged actions may constitute an offence under the Act. Examples of such circumstances include the following:
- the suspect may be genuinely unaware of the provisions of the PHA and that their actions may constitute a criminal offence, or they may try to use such ignorance as an excuse for their activity;
- there may only be evidence of a single act causing the victim harassment, alarm or distress meaning that the notifiable offence of harassment has not occurred (in that a course of conduct has not been proven);
- there is evidence of a course of conduct, but the victim is unwilling to support a prosecution and there are other elements of the case which mean that we have decided not to continue with the prosecution.
In all these examples, early intervention by use of a police notice to the suspect could be sufficient to prevent further harassment. Even if further harassment has not been prevented, the delivery of the notice could be relevant evidence in the future to prove that an individual knew their conduct amounted to harassment. The benefits of a police notice are:
- to ensure members of the public are aware of the requirements of the criminal law, in particular the PHA;
- as part of an early police intervention to contribute to preventing the escalation of disputes between individuals and/or further incidents of behaviour which could amount to harassment;
- to assist any future prosecution by proving that the offender knew their conduct could amount to harassment under the PHA;
- to provide a response when a complainant does not wish to support a prosecution.
However, it is important to note that issuing a police notice is not required for a prosecution to commence under the PHA 1997.
As the receipt of a police notice could be used as evidence in subsequent proceedings, it should be given personally so that there is clarity about the defendant's identity and that they received the notice. When a police notice has been issued, the officer should record that fact and the nature of the notice (for example, allegations made), and offer it to the recipient to sign, indicating receipt and understanding. It may be necessary to read the caution to a defendant if they make relevant comments. Any relevant comments made by the individual should be recorded in the officer's pocket notebook and the individual should be asked to endorse the record. In exceptional circumstances, a written notice may be the only means available to warn the suspect and, if this is the case, consideration should be given to using a personal delivery service or a form of postal delivery that requires a signature. It maybe necessary to produce this information as evidence in subsequent proceedings if the defendant persists with the behaviour and denies knowledge that the victim was not encouraging his behaviour.
Every effort should be made to ensure that victims in cases of stalking and harassment are consulted prior to making bail decisions. For the most part charging will be the primary responsibility of the Custody Officer; however, there are some circumstances when Prosecutors will also be involved in this process. One such example is when a charging lawyer does not agree with the decision to refuse bail post-charge. In such circumstances the charging lawyer may decide that the case does not meet the threshold element of the evidential stage of the Code for Crown Prosecutors and that the defendant's continued remand in custody is not justified. In such circumstances, the charging lawyer may suggest that conditions are imposed to protect the victim and to prevent further offences from being committed. The charging lawyer should ensure their action plan includes an action for the Custody Officer to liaise with the victim prior to the imposition of any conditional bail.
Where the initial police investigation is complete, there may be circumstances in which a charge, caution or prosecution is not possible. For example, there may not be sufficient evidence of a course of conduct which breaches the PHA. This may be because actions complained of are reasonable and lawful and were adequately explained by the suspect. Also, a victim may be reporting a single act and no offence has occurred.
In such a case, it maybe relevant to remind the police that they should inform victims that they maybe able to seek additional recourse via the civil court by making application for a non-molestation order or other injunctive relief. More information about this can be found below in the section Civil Proceedings and Legislation.
Many victims and witnesses of stalking behaviour and harassment experience stress and fear during the police investigation of a crime and the process of attending and giving evidence to a court. Stress can affect the quantity and quality of communication with witnesses of all ages. In particular, victim's often fear having to face the defendant in the courtroom or may even refuse to be in the same room. In such circumstances, where victims and witnesses are held to be vulnerable or intimidated, special measures can improve the quality of their experience by allowing them to give the 'best evidence' they are capable of.
Part II of the Youth Justice and Criminal Evidence Act 1999 introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as 'special measures'. Legal guidance on Special Measures, Special Measures - Live Link and Special Measures: Intermediaries (including their engagement) is available at elsewhere in the Legal Guidance.
In cases of stalking and harassment, the police should encourage the use of Victim Personal Statements (VPS) when dealing with these cases. Such statements can be particularly useful when drafting restraining orders. The purpose of the VPS statement is to:
- give victims an opportunity to state how the crime has affected them physically, emotionally, psychologically, financially or in any other way. This allows the court to have first hand information about the way in which the defendant's behaviour has impacted upon the victim;
- allow victims to express their concerns about bail or the fear of intimidation by, or on behalf of the defendant;
- provide victims with a means by which they can state whether they want information, for example, about the progress of the case;
- provide victims with the opportunity to state whether they want to claim compensation or request support from Victim Support or any other agency; and
- provide criminal justice agencies with a ready source of information on how a particular crime has affected the victim involved.
Further information can be found in Victim Personal Statements, elsewhere in the Legal Guidance.
The needs of individual victims vary and to ensure their safety, the criminal and civil law may need to be used in conjunction. Whilst prosecutors are not expected to be experts in civil proceedings, they should be aware of the options open to victims or other agencies under civil procedures so that an all encompassing approach can be taken in safeguarding and supporting victims.
Prosecutors should routinely make enquiries to see if there are any concurrent civil proceedings. If it is not already contained within the file, the police should be asked to provide information about any relevant civil proceedings past, current or pending. The fact that civil proceedings are ongoing does not mean that criminal proceedings cannot be commenced or continued. However, proceedings for breach of non-molestation orders can only take place in one or another of the jurisdictions and not both.
Where there are concurrent criminal and civil proceedings, prosecutors will need to ensure that courts have the appropriate information to enable them to make orders that prioritise the safety of victims and children and are consistent.
Prosecutors should alert the court to any proposed orders that may conflict with current civil orders. For example, a bail condition may be imposed by the criminal court that prohibits any contact between the defendant and the victim. However, the defendant may have obtained an order from the civil court that allows contact between the defendant and the children. Similarly, bail may be granted by the criminal courts in a way that fails to take account of any existing civil orders. These situations could result in orders being made that jeopardise the safety of the victim and any children. Conflicting orders may also be confusing for the victim, the police and the defendant and make it difficult to prosecute any subsequent breaches of bail.
The availability of civil proceedings does not diminish a defendant's criminal behaviour and is not therefore a reason, in itself, to discontinue.
Prosecutors may need to obtain information or documents that pertain to family proceedings. This information maybe crucial to the:
- decision to charge;
- the nature of the charge;
- bail conditions;
- applications in respect to witnesses; and
- the admissibility or otherwise of bad character and hearsay evidence.
Examples of documents could include:
- statements made by the parties or witnesses;
- expert reports including reports compiled by CAFCASS about any children in the family;
- transcripts of evidence (especially if any admissions have been made); and
- the transcript of the judgment (where findings have been made or not made).
There are restrictions around the types of documents and information that can be disclosed to the police or CPS. Generally this material will fall into three main areas:
- orders made by the court in family proceedings may be disclosed to any person provided that the order is not published to the general public;
- documents filed in family proceedings are confidential and may only be disclosed in accordance with the Family Proceedings Rules 1991 (SI 1991/1247) as amended by the Family Proceedings (Amendment) (No. 2) Rules 2009 (SI 2009/857); and
- information from family proceedings that may be shared with other relevant authorities such as the police.
The ACPO police/family disclosure protocol makes provision for applications by the police and/or CPS for access to local authority files. Requests should be made in accordance with the protocol in those Areas in which it has been implemented. The protocol can be found on the Ministry of Justice website at: www.dca.gov.uk/family/metpol-protocol.pdf
In some cases, where there are considerable overlaps between proceedings and strong grounds for maintaining liaison between the criminal and civil jurisdictions, joint case management hearings may be required. These are an opportunity to:
- coordinate the timetables for proceedings;
- coordinate expert evidence to prevent unnecessary duplication and to ensure that experts have all available information; and
- resolve issues of information sharing both within and across the concurrent proceedings.
More detailed information on procedure and joint case management can be found in the legal guidance Safeguarding Children:guidance on chidren as victims and witnesses.
Section 3 of PHA makes harassment as defined in section 1 of the Act a tort for which a victim can bring legal proceedings. Proceedings under section 3 may be founded on the basis of one act and anticipated further breaches of section 1 (in contrast to criminal proceedings under sections 2 or 4 that require at least two actual incidents in order to constitute a course of conduct).
Victims who experience harassment can seek a restraining order, the breach of which maybe a criminal offence. However, no power of arrest can be attached to this civil order and, in order to enforce it though the civil courts, the victim will need to return to court to apply for a warrant of arrest. For further information see Restraining Orders - Section 12 Domestic Violence, Crime and Victims Act 2004, elsewhere in the Legal Guidance.
Section 3A of the PHA permits a person who is, or may be, a victim of conduct within section 1(1A) of the Act to apply to the high court or the county court for an injunction.
Part IV of the FLA came into force in October 1997 and concerns domestic violence and occupation of the family home. It provides a set of remedies available in all courts with a family jurisdiction (including magistrates' courts). Orders available include non-molestation and occupation orders. Applications under the Act can be made without notice.
Where a court has the power to make a non-molestation or occupation order, it can accept an undertaking from the respondent (for example, not to molest, not to go within a certain distance of the home, etc.). A power of arrest cannot be attached to an undertaking and the court must not accept an undertaking where otherwise it would be appropriate to attach a power of arrest. If the undertaking is breached, it can be enforced as if it were an order of the court.
Unless the court is satisfied that the applicant and any relevant child will be adequately protected without such a power, a power of arrest must be attached to an occupation order made following an application on notice and where the court is satisfied that the respondent has used or threatened violence against the applicant or relevant child.