It was reported this week that David Cameron was supporting the recommendation of the Independent Parliamentary Inquiry into Stalking Law Reform to bring in legislation to create a new offence of stalking.
If he thought this was something with which to gain universal approval, he has failed as far as I’m concerned.
Let me be clear. I fully support the work of many people and groups such as Protection Against Stalking and Action Scotland Against Stalking to highlight the shattering and sometimes fatal effect stalking can have on lives and to ensure effective intervention and prosecution.
However, while there are sound reasons to modify existing legislation, I have not heard any convincing argument to justify the creation of a new offence.
As explored in Fit for Purpose? the existing legislation enacted to deal, among other things, with stalking is the Protection from Harassment Act 1997. No one giving evidence to the Inquiry appeared to challenge the proposition that the Act covered stalking. Instead, it was said that its breadth – the fact it also covers other forms of harassment – was a weakness.
An oft-repeated observation taken from a 2003 Home Office evaluation was that “the Act is being used to deal with a variety of behaviour other than stalking including domestic and inter-neighbour disputes and rarely for stalking itself”.
This appears to be incontrovertible. The Inquiry records the British Crime Survey of 2006 estimating up to 120,000 people experiencing stalking each year. Yet, according to Home Office figures obtained for the Inquiry, there were only 53,029 harassment cases recorded by the Police in 2009.
The number of prosecutions is not given but the conviction numbers are very low. Only 5,151 persons were convicted under either s2 (‘normal’ harassment) or s4 (‘putting in fear of violence’). Of those 735 were given a custodial sentence.
More shocking (or depressing) still is the lack of effective enforcement. On any conviction under s2 or s4, the Court has power to make a restraining order, effectively granting a protective injunction. In 2009 there were 1,463 convictions for breach of such a restraining order. Of those, 32% were given custodial sentences but very strikingly, evidence from PAS and Napo was that some perpetrators breached their restraining order 5 times or more but still avoided custodial sentences.
So, if the 120,000 is a fair estimate of stalkers (as opposed to targets which is actually what was estimated) then about 4% were successfully prosecuted and less than 1% given a custodial sentence. Playing a little fast and loose, one could also say that about a third of those convicted will breach their restraining order but only a third of them go to prison.
But, the fact the Act appears not to be used effectively does not mean a new offence needs to be created. If there were numerous prosecutions failing because of a flaw in the offence then that would be different but this is not being suggested. The fact that the existing Act may be and is being used for other types of harassment should not prevent it being used successfully in stalking cases. Specifically, nothing has been done to answer the question of why the existing Act is not being used. Without understanding that, how can we be sure that creating a new offence will lead to greater use?
The report makes excellent suggestions about making harassment an either way offence (so it may incur a heavier sentence) and enabling prosecution where someone ‘goes equipped’ with items which could be used to aid e.g. kidnapping, abduction or causing harm.
Nevertheless, the fact remains that the proposed offence of stalking is more narrowly drawn than the offence of harassment and so its creation appears to serve no useful purpose. Stalking should not need to have its own offence to be taken seriously so far better instead to increase the powers under the Protection from Harassment Act and issue guidance to the Police and CPS about how to apply the Act along with stronger sentencing guidelines for the judiciary.
In Contact, S R Hadden, beautifully played by John Hurt, asserts that the first rule of government spending is “Why build one when you can have two at twice the price”. Passing two pieces of legislation for the same offence is going from the sublime to the absurd.