The most widely reported finding of the Independent Parliamentary Inquiry into Stalking Law Reform is that the Protection from Harassment Act 1997 (PHA) should be reformed or replaced as it is unfit for purpose.
That is perhaps an unfortunate headline for an otherwise excellent analysis of the practical problems in enforcing stalking cases. It is unfortunate as a full reading of the report reveals it is not the PHA itself which is defective but its application. And, while there is merit in some of the amendments suggested, if the PHA were applied and enforced effectively, it is difficult to see any real benefit in creating a specific, separate offence of stalking as opposed to harassment.
As is almost inevitably trotted out whenever the PHA is the subject of a judgment, its genesis lay in the Stalking Bill 1996. A private member’s Bill introduced by Janet Anderson MP (and co-drafted by Tim Lawson-Cruttenden), it unashamedly sought to deal exclusively with the problem of stalking and was blocked by the then Conservative government for precisely that reason; the government view was that legislation should go further and address harassment of any type including stalking.
As the then Home Secretary and now Lord Michael Howard, told the House of Commons on 17 December 1996 (during a lengthy and rather fractious debate):
The hon. Lady’s Bill attempted to specify the behaviour that amounted to stalking. The conduct known as stalking can take many forms. Even though the list set out in the hon. Lady’s Bill was not intended to be exhaustive, it would have served to focus the attention of the courts on the behaviour represented in it. Other types of behaviour, which might be just as distressing for the victim, might, in effect, have been excluded because of the way in which her Bill was drafted …
By defining the offence in terms of the effect that the actions have on the victim, the proposals in the Bill will catch activity that causes harassment, irrespective of whether it might be termed stalking or something else. I have in mind, in particular, conduct that causes racial harassment. The Bill will catch that conduct if the conduct occurs on more than one occasion, and in circumstances in which the perpetrator ought to have known that his words or behaviour would cause harassment, alarm or distress.
One of the fundamental objections taken to the Stalking Bill was that it listed the types of activity which would be deemed to be stalking. This, said the government, would serve to exclude behaviour which fell outside the activities listed. They cited a stalking victim who had attended the Suzy Lamplugh Trust Conference in October 1996 and said:
If you have a list of activities which you ban, my stalker will simply sit down and work out another activity with which to torment me
An attempt to cover this through the inclusion of a ‘catch all’ provision (i.e. “any other act or acts in connection with another person … reasonably likely to cause that other person to feel harassed, alarmed, distressed” ) this was felt to be inadequate owing to the ejusdem generis rule.
Under the ejusdem generis rule, such a provision in a list would have to be construed by reference to the nature of the activities already included in the list. Therefore, it was said, any list risked limiting the scope of the activities which could lead to a conviction.
If that is right then the same problem will be faced by the Scots, who have introduced a specific offence of stalking, and here if the proposal to do the same is implemented. The Scottish offence (a summary of which can be viewed here) attempts to define stalking by reference to a list of activities commonly undertaken by stalkers.
There is nothing inherently wrong with the Scottish list which is an excellent summary of the sort of conduct in which stalkers engage. However, the offence occurs when a person engages in the course of conduct and that conduct also causes the target to feel fear or alarm.
By limiting the conduct to specific types of activity and requiring that it cause ‘fear’ or ‘alarm’ it is considerably narrower than the PHA. The PHA, by eschewing any attempt to define conduct, covers any conduct which does in fact cause harassment. In addition, the PHA does not limit the possible impact but provides that harassment includes causing alarm or distress. Clearly then, it encompasses conduct which has a different effect even if it does not cause alarm etc.
In short then, the proposal is that a new offence of stalking be created which is narrower than the existing offence of harassment and the elements of which ought on any reasonable interpretation to amount to harassment under the current provisions.
To my mind then, the problem lies not with the PHA but with its application and I will explore that in more detail in another post.