Recorded domestic related crimes are up 24% from last year.
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In simple terms stalking is more serious than harassment.
Stalking covers a wide range of alleged misdemeanours that individually would not necessarily attract criminal liability, but when added together and multiplied can give rise to a criminal charge of stalking.
From a victim point of view stalking is serious and can have a hugely negative impact on daily life. As a domestic offence the Police will give it priority and arrest or voluntarily interview a suspect under caution at the Police Station. Investigations often take months to conclude because of the many differently ways that the offence can be committed, especially where electronic evidence is potentially available, leaving the suspect in limbo indefinitely, often subject to strict bail conditions and ultimately a charge and a court case.
For suspects, police investigations and Court hearings can have a dramatic impact on day to day living. Access to the family home and to children is often restricted and any caution or conviction can affect employment as it would remain on the police national computer and may be disclosed on a DBS check.
Disputing these allegations and building a defence is like navigating a minefield. How evidence is presented can lead to the case being dropped entirely or a charge for this offence or another linked offence such as assault, criminal damage, harassment, controlling or coercive behaviour, threats to kill, breach of protective order, social media offences and public order offences.
Evidence could also help defend an application for a Domestic Abuse Protection Order (DAPO), Restraining Order or Non-Molestation Order.
Key points for suspects
Stalking is a serious allegation which is highly likely to result in you being made subject to restrictive bail conditions while the case continues. Irrespective of outcome there is a social stigma attached to being accused of stalking.
Avoiding prosecution requires a robust evidence-based defence case to be built to undermine the allegations made and show that any behaviour was reasonable. This can speed up removal of bail conditions and have seized property such as mobile phones and computers returned to you.
It is also plain that any evidence gathered in a prosecution investigation could also provide evidence to support an application for a Domestic Abuse Protection Order (DAPO), Restraining Order or Non-Molestation Order in favour of the victim.
Stalking is more serious than harassment. It is also split into two offences with a Section 2A and a Section 4A offence.
There is no strict legal definition of stalking, but it involves specific behaviour as opposed to harassment more generally. Examples of section 2A are 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, 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. The maximum prison sentence is 6 months and cases can only be heard in the magistrates court.
Section 4A is an aggravated version of stalking where the victim has been put in fear of violence or is caused serious alarm or distress The maximum prison sentence is 10 years and cases can be heard in the Magistrates or Crown Court.
In all cases a restraining order can be imposed upon conviction or acquittal if the court considers it necessary to do so to protect a person from ongoing stalking or harassment from the defendant.
Examples of stalking behaviour
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:
following a person,
contacting, or attempting to contact, a person by any means,
publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person,
monitoring the use by a person of the internet, email or any other form of electronic communication,
loitering in any place (whether public or private),
interfering with any property in the possession of a person,
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'.
Defences to section 2A stalking
If the suspect is able to show that any of the defences to harassment apply, he or she cannot be guilty of stalking as without harassment there can be no conviction for stalking.
Three defences are available to harassment:
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 last defence is the most commonly used, the reasonableness or not of a suspect’s behaviour is a matter to be determined by the court.
Section 4A Stalking (Putting People in Fear of Violence) explained
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 4A Stalking (involving fear of violence or serious alarm or distress) explained
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
What is a course of conduct?
A course of conduct is defined as being on at least two occasions. 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.
There are two ways of committing a Section 4A offence:
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.
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, Home Office guidelines suggest that evidence of a substantial adverse effect may include the following:
the victim changing their routes to work, work patterns, or employment;
the victim arranging for friends or family to pick up children from school (to avoid contact with the stalker);
the victim putting in place additional security measures in their home;
the victim moving home;
physical or mental ill-health;
the deterioration in the victim's performance at work due to stress;
the victim stopping /or changing the way they socialise.
The crucial difference between the offence under section 4 Harassment and an 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".
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.
In determining whether the suspect ought to know that the course of conduct amounts to stalking it is important to understand that it is irrelevant what the suspect thinks amounts to stalking, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to stalking of the other.
Defences to Section 4A Stalking
Section 4A 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.
Stalking is serious and complicated. Good legal advice is essential at an early stage.