New offences of stalking (in addition to existing offences of harassment) were introduced in 2012. The offences are harassment which involves a course of conduct that amounts to stalking. There are two offences, stalking involving fear of violence and stalking involving serious alarm or distress.
What is stalking?
There is no strict definition, but the legislation lists a number of behaviours associated with stalking –
- following a person,
- contacting or attempting to contact a person by any means,
- publishing material relating to a person or purporting to come from them,
- monitoring a person’s use of the internet, email or communications,
- interfering with any property in the possession of a person,
- watching or spying on a person.
The list is not exhaustive and nor is behaving in one of these ways automatically stalking, context is everything.
What must the prosecution prove?
- That there is a course of conduct
- which constitutes harassment, and
- the course of conduct amounts to stalking.
Additionally, for the offence involving fear of violence it must be proven –
- the conduct 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.
The test whether he “ought to know”, is whether a reasonable person in possession of the same information would think that the course of conduct would cause the other to fear violence.
It is an offence if conduct amounts to stalking and causes another to fear, on at least two occasions that violence will be used, or that the conduct causes serious alarm or distress, which has a substantial effect on a person’s day to day activities.
This could mean that they have to, for example, change a route they normally use, move home or change the way they socialise. It could also mean a change to a person’s physical or mental health.
Are there any defences?
It is a defence to show –
- the course of conduct was pursued for the purpose of preventing or detecting crime;
- the course of conduct was pursued under a rule of law;
- that any conduct was reasonable
Additionally, for the violence offence it is a defence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of his or another’s property.
What sentence could I get?
For the basic offence of stalking the maximum sentence is six months imprisonment, for the offence causing fear of violence or serious alarm/distress the maximum sentence is 10 years imprisonment (for an offence on or after 2 April 2017; 5 years for offences prior to that date).
A restraining order to protect the victim from further contact can also be imposed, even if a defendant is found not guilty of the offence.