New Stalking Law Not so New

There has been an enormous amount of publicity concerning the new stalking law brought into force by the Protection of Freedoms Act 2012.  The ‘new’ law has been hailed by everyone from the Cleveland Police to the Sun Newspaper as being a vitally important new protection for women against stalking.  Amid all the furore surrounding this new law it is worth taking a moment to ask ourselves whether this excitement is completely justified. 

The new offence of stalking is created by Section 111 of the Act where “a person pursues a course of conduct in breach of Section 1 of the Harassment Act 1997 and the course of conduct amounts to stalking.  It goes onto clarify that a persons course of conduct amounts to stalking if:

a) it amounts to harassment of that person
b) the act or omissions involved are ones associated with stalking and;  
c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person. 

This, is the new offence of stalking, however there is nothing new about legislation protecting victims of stalking.  The Protection from Harassment Act 1997 was specifically enacted to deal with this problem.  Section 1 of that Act states that “a person must not pursue a course of conduct:  

a) which amounts to harassment of another and;  
b) which he knows or ought to know amounts to harassment of the other”

In other words the definition of the offence is exactly the same save (in the new offence) an additional element that the course of conduct which amounts to harassment must also amount to stalking.  In other words anything which is an offence under the new act would also have been an offence under the Protection from Harassment Act 1997, and any prosecution brought under the new act could just as easily have been brought under previous act.  Neither does it, as some claim, simplify the law in this area because the new act specifically mentions the word harassment which means that any offence of stalking must also amount to harassment to be an offence.  Far from making it easier to prosecute someone who might be stalking another the new law might be said to actually make it more difficult as it introduces an extra element which must now be satisfied.

Neither, as some have mistakenly claimed, does it give the Courts additional powers of punishment.  Section 111(1) of the new offence creates an offence of stalking which is punishable in the Magistrates Court up to their maximum powers (currently 6 months imprisonment) – exactly the same as the offence of harassment created by Section 1 of the Protection from Harassment Act 1997.  Section 111(2) of the new offence creates an aggravated offence of stalking involving fear of violence or serious alarm or distress which is punishable at the Crown Court with up to 5 years imprisonment however this does little more than mirror the aggravated offence in the Protection from Harassment Act 1997 of putting people in fear of violence which is also punishable at the Crown Court by a term of imprisonment of up to 5 years.  The only real change is that under the new act to commit an aggravated version of the offence it is enough to be merely caused serious alarm or distress rather than a fear of violence.  Even with this refinement it is difficult to see any genuinely new offence that has been created, other than in name, and there has been no increase in powers of punishment either. 

The only new power the act contains is in Section 112 where the police can apply to a justice of the peace for a warrant to allow them to enter and search premises if they believe there is material on the premises to assist with an investigation of stalking.  It is difficult to see how this power is likely to be used other than on rare occasions however.

In short the new offence of stalking requires conduct which would in any event already have been an offence under the Protection from Harassment Act 1997 and is punishable at the same level.  To commit the new offence however an additional element of causing harassment which amounts to stalking must also be committed.  Still it provides sympathetic media coverage for a government in difficulty…

Jeremy Sirrell