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Stalking and Harassment

Introduction

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. 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:

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Terminology

Harassment

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 [2014] 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.

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Stalking

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. 

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Criminal Legislation

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.

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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.

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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.

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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.

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Stalking Legislation

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.

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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.

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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.

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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.

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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. 

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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.

Alternative verdict

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.
 

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Defences generally

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 [2013] 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.

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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 [2001] 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 [2000] Crim. L.R. 580 and R v Patel [2005] 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 [2010] 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.

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Earlier Incidents

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.

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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.

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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.

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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.

Drafting Indictment

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.

Charging Guidance

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.

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General Principles

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.

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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 inflammat