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Look Who'stalking: Seeking a Solution to the Problem of Stalking

Michael J Allen

Professor of Law
Newcastle Law School
< Mike.Allen@newcastle.ac.uk>

Copyright © 1996 Michael J Allen.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article examines the phenomenon of stalking and considers the approaches being adopted to deal with it by victims, prosecutors and the courts in England and Wales. The adequacy of the current civil remedies and criminal offences which are available to deal with the problem is examined. The recent proposals by Government to legislate for a statutory tort of harassment and new criminal offences to deal with the problem are also critically analysed. The author concludes with an analysis of the issues to be considered in drafting any future legislation.

Introduction

The nature of the problem

Criminal Offences

Non-fatal offences against the person and stalking

Inflicting "grievous bodily harm"

Assault

Other Offences under which stalkers may be prosecuted

The Telecommunications Act 1984

The Malicious Communications Act 1988

The Trade Union and Labour Relations (Consolidation) Act 1992

Public Nuisance

The Public Order Act 1986

Stalking and civil remedies

Domestic Violence

Tort

Legislating for stalking

Civil Law

An offence of stalking?

Conclusion

Bibliography

Introduction

The Royal Family are much in the news, but recently two members have played a part, albeit passive and unwilling, in a current debate taxing politicians and lawyers - do we need a law against stalking. In January, Bernard Quinn was arrested for conduct likely to cause a breach of the peace arising from his stalking of the Princess Royal (magistrates subsequently dismissed the charge) while Klaus Wagner was arrested for obstructing the highway outside the gym where the Princess of Wales kept fit - the CPS dropped the charges due to insufficient evidence. The Government's response to this problem has been the publication on July 11, 1996, of a Consultation Paper by the Home Office and Lord Chancellor's Department, Stalking: The Solutions (Home Office, 1996). Responses were required by September 9, 1996, which hardly gives much time for careful reflection particularly when the consultation period coincides with the peak domestic holiday period. While deer may be to the fore in signing petitions in favour of a law against stalking, we humans perhaps need to consider more carefully whether such an offence is required or whether offences (and civil remedies) which already exist adequately cover this behaviour.

Stalking is a course of conduct which harasses, threatens, intimidates, molests, alarms or causes distress to an individual and which is carried out either for that purpose or for the purpose of compelling that person to do or refrain from doing anything which that person has a right to refrain from doing or to do (1). Often the purpose of the stalker is to compel the victim to engage in, or re-engage in, a relationship with the stalker (Goode 1995) but there are other motivations such as persecutory delusional disorders or schizophrenia (see Harmon et al 1995; Mullen and Pathe 1994). The conduct involved is generally persistent comprising following that individual, surveillance of their home or place of work, entry on to their property, telephone calls (including faxes), and the sending of letters (or email messages) or other articles. Occasionally it can involve damage to property and in extreme cases may lead to physical assault. Sometimes the conduct is directed not at the person with whom the stalker wishes to establish a relationship or with whom he is aggrieved but towards others associated with that person.

Stalking is not a recent phenomenon (2) but pressure for a law against stalking has been growing over a number of years and NASH, the National Anti-Stalking and Harassment Campaign and Support Association has been at the forefront of the campaign for an offence of stalking. A private member's bill introduced in the House of Commons by Janet Anderson MP failed on 10 May to receive a second reading but assurances were given by the Home Office that the problem was currently under consideration (3). In the meantime action in the criminal courts is being taken against 'stalkers' and it raises serious questions about the current state of the law in relation to non-fatal offences against the person generally and the role of the judiciary in developing the law in this sphere.

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1. The nature of the problem

A major problem in the debate about stalking is the lack of hard data. As stalking is not an offence per se it does not feature in the criminal statistics. Most of the pressure for a change in the law in the United Kingdom has come from the tabloid press highlighting particular instances of behaviour classed as stalking. The tabloids, however, are hardly the most reliable source for an objective assessment of the problem. NASH has begun to collate information through its telephone crisis line enquiries (Von Heussen 1996). In a two year period from January 1994 to January 1996, 6,072 victims of stalking contacted the crisis line for advice. NASH also notes that 17 stalking related deaths of victims took place in 1994 and 1995. This information is a useful starting point tending to indicate the scale of the problem but it is not comprehensive. It is, however, the only information cited in the consultation paper (Home Office 1996, para 1.8). More recently research into the extent of stalking by Maria Wallis, Assistant Chief Constable of Hampshire, on behalf of the Association of Chief Police Officers, found that out of 44 forces asked about differing types of behaviour which would constitute stalking, only four were unable to give examples (see The Times, September 3, 1996) .In the United States a survey concluded that as many as 200,000 people are stalked each year and five per cent of all American women are likely to be the victims of stalking during their lifetime (4). A number of high profile personalities in the United States have been stalked including Madonna, Janet Jackson, Johnny Carson and Rebecca Schaeffer, the latter finally being murdered in July 1989 by her stalker, an obsessed fan, after he had pursued her for two years (see also Lardner 1995). The response in the US has been rapid with almost all states enacting anti-stalking laws designed to "criminalize the repeated following or harassing of another person when combined with a credible threat of serious violence" (see Faulkner and Hsiao 1994; National Victim Centre). A number have been the subject of constitutional challenges (see Faulkner and Hsiao 1994; Sohn 1994; Boychuk 1994) while their efficacy in protecting victims to any greater extent than existing laws had done is in doubt (see Sohn 1994; McAnaney et al 1993).

It is dangerous to draw direct comparisons from one jurisdiction to another as there are so many differences between the societies and legal systems in the USA and the UK but clearly the research being carried out in the US is relevant to the current debate. One crucial question to be answered before legislation is considered here is who are the stalkers? Unless there is information as to the kinds of people who engage in stalking one cannot determine whether legislation to create a new offence of stalking might be effective or whether other measures may be more effective or whether a combination of approaches would be the most appropriate response. Even if this is determined and it is decided that a law against stalking could serve a beneficial purpose other factors such as the willingness of the police to enforce such a law and prosecutors to bring prosecutions under it will play a significant part in practice in determining whether the law will be effective in dealing with the problem.

McAnaney et al state (McAnaney et al 1993, pp 821-823):

"Stalkers can be obsessed fans, divorced or separated spouses, ex lovers, rejected suitors, neighbours, co-workers, classmates, gang members, former employees, disgruntled defendants, as well as complete strangers."

They identify from psychological, psychiatric, and forensic literature four different categories of stalkers whose motives and behaviours may differ while, in addition, the potential for violence may differ between individuals within categories. The four categories are (ibid pp 832-834) (5):

1. Erotomania: this is a delusional disorder in which the erotomanic believes himself to be loved by the object of his delusions even though that person may not even be aware of his existence. (6) Celebrities are often the objects of such delusional fantasies. Both males and females are affected by this disorder but males are more prone to become aggressive when their affections are not reciprocated.
2. "Borderline Erotomania": this covers individuals who develop intense emotional feelings for someone whom they know does not reciprocate their feelings. Usually there is a history of some contact between the stalker and the victim which has triggered the development of this condition. Such individuals have usually suffered serious disturbances of bonding or attachment in childhood giving rise to difficulties in relationships as adults. They are also prone to intense fury referred to in the psychological literature as either "Narcissitic Rage" or "abandonment rage" when facing in adulthood the inevitability of abandonment.(7)
3. "Former Intimate" Stalkers: these are individuals who have had an intimate relationship with the victim whether as spouse or lover and refuse to be rejected after the relationship has ended.(8) In many cases these stalkers have a prior history of abusive relationships.(9) These are highly emotionally dependent individuals who experience rejection as abandonment. The victim of the stalker may be the former spouse or lover or that person's current spouse or lover. An ending of the relationship will not bring to an end the risk of violence where it was an abusive relationship and it may herald an increased risk of violence where there was no prior overt manifestation of violence.
4. Sociopathic stalkers: serial rapists and serial murderers characteristically stalk their victims but not from the point of view of seeking to initiate or maintain a relationship but rather to seek victims that fit the characteristics of an "ideal victim" and then to facilitate their attack.

NASH has not engaged in a typology of stalking but has sought to identify the relationship of the stalkers to their victims. Of the 6,072 victims who contacted their crisis line 80% had suffered "post relationship stalking", 15% "casual contact stalking" (this may equate to borderline erotomania but further information would be necessary before such a conclusion could be drawn), and 5% had been stalked by strangers. The Wallis research for ACPO analysed 151 cases of stalking. Of these 25 stalkers were "domestic" stalkers (ex-partners or husbands), 24 were known to the victim through work, 40 were known casually, 30 had some other relationship with the stalker and 32 were unknown. What these NASH and ACPO figures do not reveal is what percentage of stalkers suffer from mental illnesses, psychological or personality disorders. The figures do display a need for further investigation particularly of the link between domestic violence and stalking (see also Kurt 1995).

While a typology is useful in helping develop understanding of the different motivations stalkers may have it does not provide a solution to the problem. Indeed, in light of the differences between stalkers and their differing social, psychological and psychiatric problems a range of solutions is required. Victims perhaps naturally look to the law and in particular the criminal justice system to provide a solution. There are limits, however, to what the criminal justice system can do to protect victims. The remainder of this article will examine the range of offences which may be used against stalkers, the civil remedies which are available and the question whether further legislation is required.

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2. Criminal Offences

While a specific offence of stalking has not been enacted the criminal law is being used against stalkers. Recourse has been had by prosecutors to existing offences in the form of offences against the person and public nuisance. Is this an appropriate use of these offences? Are there other offences which could be used? Is further legislation necessary?

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a. Non-fatal offences against the person and stalking

While stalking embraces a range of conduct its impact on the victim is often to cause distress and fear. Obviously if the stalking behaviour leads to physical attack upon the victim a prosecution for the appropriate offence against the person will be appropriate. In several recent cases involving persistent stalking behaviour, however, prosecutions for offences against the person have been brought on the basis that the stalking behaviour has impaired the victims' health. Such prosecutions provide the courts with opportunities to impose fairly severe prison sentences. The unreformed (10) state of the law in this area also lends itself to manipulation to encompass stalking activity.

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"Inflicting" grievous bodily harm

In Gelder (news item The Times, 16 December 1994) the Court of Appeal quashed a conviction for inflicting GBH contrary to the Offences Against the Person Act 1861 s 20 arising from obscene telephone calls to the victim which had resulted in psychiatric illness. The trial judge had directed the jury to consider what a normal person would feel would be the effects of the calls on the recipient. The conviction was quashed on this basis as the mens rea of the offence requires either intention to cause physical harm or recklessness thereto. Lord Taylor CJ stated:

"The defendant was entitled to have the jury consider whether he foresaw that there was any risk of harm to this woman by making the calls. It may well be that the jury might have come to the same conclusion even if the judge gave them the correct direction. But we cannot be sure of it."

The Court declined to consider the separate ground of appeal in which the appellant claimed that it was impossible to inflict GBH over the telephone. A consideration of this issue would have been welcome as the Court would have had to address the question of the meaning of "inflict" in s 20. In Wilson [1984] AC 242 the House of Lords had reason to examine the meaning of "inflict".(11) Lord Roskill (with whom the remainder of their Lordships agreed) concluded that "there can be an infliction of grievous bodily harm contrary to section 20 without an assault being committed".(12) It was clear, however, that what was required was force being applied to the body of the victim either directly by the accused or by doing something which directly results in force being applied as where, e.g. D sets a trap for the victim by digging a hole into which he falls. This view was affirmed by Lord Mustill in Mandair [1995] 1 AC 208, 229 (13) who stated that "'inflict' conveys the idea of a direct and immediate doing of harm".(14) These dicta, however, have not prevented the Crown Court at Reading from convicting the accused in Burstow [1996] Crim LR 331 of inflicting GBH contrary to s 20 on the basis of a campaign of silent telephone calls to V, "hate" mail, theft of clothing from her washing line and scattering of condoms in her garden. V suffered severe depression which the defence conceded amounted to grievous bodily harm and the Crown conceded that there was no assault or battery - i.e. no force was directly applied to the body of the victim. Judge Lait ruled that the House of Lords in Wilson had gone no further than accepting that there can be an "infliction" without an assault and had not accepted the Salisbury judgment in full. Consequently there was no reason for giving "inflict" a narrow or restrictive meaning. In effect, as the prosecution argued, "inflict" meant "impose upon". In response to this ruling the accused changed his plea to guilty. This decision was affirmed by the Court of Appeal, The Times, 30 July 1996. Lord Bingham of Cornhill CJ considered that the decision in Chan-Fook [1994] 1 WLR 689 that actual bodily harm was capable of including psychiatric injury was fatal to the appellant's case as there could be no meaningful distinction in this respect between actual bodily harm and grievous bodily harm. Judge Lait and the Court of Appeal, however, are guilty of playing fast and loose with authority. They may choose to dispense with dicta in Wilson as being obiter but they cannot dispense with the ratio decidendi of Clarence (1888) 22 QBD 23, a decision of the Court for Crown Cases Reserved (as modified but not overruled by Wilson) where there was no "infliction" even though there was direct physical contact. This can only be because the presence of consent to sexual intercourse in this case meant that the physical contact involved did not constitute force (see Smith and Hogan 1993, p 426; Smith 1996, pp 333-334). It is submitted that the application of force physically to the body of the victim is a prerequisite for a conviction under s 20 on the basis of inflicting GBH. Any dilution of this requirement runs contrary to the authorities, namely, the ratio of Clarence and the obiter dictum of Lord Roskill in Wilson which has been approved by the House of Lords in both Savage and Mandair.

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Assault

The Court of Appeal has also seen fit to rework the meaning of "assault" to ensure the conviction of a stalker. In Ireland, The Times, 22 May 1996 it held that a telephone call or series of calls followed by silence could constitute an assault, affirming the conviction of the appellant of assault occasioning actual bodily harm. In this case the three victims suffered, according to psychiatric evidence, "significant psychological symptoms which included palpitations, difficulty in breathing, cold sweats, anxiety, inability to sleep, dizziness and stress".

Although assault is now regarded as a statutory offence (15) the offence is not defined in any statute but at common law. Assault, in its technical or "psychic" sense (see Law Com No 218, para 18.1; Williams 1983, p 173), is "any act by which D intentionally or recklessly causes P to apprehend immediate and unlawful personal violence" (see Smith and Hogan 1993, p 398; Fagan v Metropolitan Police Commissioner [1969] 1 QB 349; Venna [1976] QB 421; Savage [1992] 1 AC 699, 740) - i.e. it is the apprehension of a battery and a battery is the application of unlawful force to another. In none of these cases did the courts agonise over the actus reus of assault as they took it to be widely understood as entailing the apprehension of a battery. (16)

The level of violence need not be very great and will be satisfied by any unlawful touching of the victim. (17) The accepted definition of assault in the criminal law also correlates with that in the law of tort (see Brazier, ed, 1995, para 12-12). The main doubts which have existed have been as to the mens rea and as to whether words alone, unaccompanied by action, can constitute an assault (see Williams 1957).

In light of this background, there are a number of problems with the decision in Ireland but two in particular merit mention.(18) Firstly, the Court has engaged in a subtle reconstruction of the word "violence". All previous decisions characterise violence in the context of assault as the use of force on the body of the victim or the apprehension of a battery. In this case the Court deduces violence from the fact of harm, Swinton Thomas LJ stating:

"In most cases an assault is likely to involve direct physical violence to the body. However, the fact that the violence is inflicted indirectly causing psychological harm does not render the act to be any less an act of violence....In our judgment repetitious telephone calls of this nature are likely to cause the victims to apprehend immediate and unlawful violence." (19)

Swinton Thomas LJ has confused and reformulated several concepts. In his first sentence he refers to assault in the sense of battery. He then proceeds to talk about "violence...inflicted indirectly". He appears implicitly to be adopting the same reasoning as Judge Lait in Burstow and seems to consider that battery may be committed indirectly. Even if one accepts this re-reading of Wilson one is left asking what is the indirect application of force to the body of the victim which is apprehended in the instant case? It is clear that Swinton Thomas LJ is not merely redefining battery to include indirect applications of violence but that he is then proceeding to redefine violence. As all the previous authorities on battery had defined the offence to require proof of a physical touching of the body of the victim (and for assault the apprehension of such) the basis for this radical reconstruction of "violence" is highly suspect.

Undoubtedly "violence" may be reconstructed, perhaps needs to be reconstructed, and it has been in other spheres (see Fawcett et al 1996, esp. chap. 2). This has been a feature of the debate on battered women who kill. Apart from highlighting gender bias in the criminal law in the way in which it constructs the defences of self-defence and provocation, this debate has reconceptualised violence to include "emotional violence" (see Nicolson and Sanghvi 1993) and "emotional battering" (see Wells 1994). In the context of domestic violence generally the House of Commons Home Affairs Committee accepted that "domestic violence" includes "any form of physical, sexual or emotional abuse which takes place within the context of a close relationship".(20)

Swinton Thomas LJ has adopted this wider definition which incorporates molestation or harassment. Undoubtedly suffering was inflicted upon the victims but that is not a sufficient basis for finding an assault, in its generic sense, had been committed or, failing that, for redefining assault to include the appellant's conduct. There are dangers in treating assault as a general catch all offence covering multifarious forms of violence, molestation and harassment. Indeed, had the Court of Appeal cast its net wider in seeking guidance on constructing violence it may have found some in its own decisions under the Criminal Justice Act 1991, s. 31(1) helpful. This section defines a "violent offence" for the purpose of imposing a longer sentence for reasons of public protection as one "which leads, or is intended or likely to lead, to a person's death or to physical injury to a person...." An offence resulting in psychological harm does not fall within this definition (see Robinson (1992) 14 Cr App R (S) 448; Murphy, ed, 1996, para E1.10). Had the trial judge sought to impose a custodial sentence under the Criminal Justice Act 1991 s 1(2)(b) the Court of Appeal would have had to strike it down as the authorities indicate that either physical injury must have resulted or been intended before an offence can fall within this definition.(21) It is somewhat paradoxical to find the Court of Appeal redefining violence in a way which runs contrary to the closest analogous statutory definition of that concept and one which is of such recent origin. It is hardly conducive to clarity or justice for there to be two such divergent notions of violence.

Swinton Thomas LJ has altered the focus from one which concentrates on the conduct of the accused in determining whether an assault has been committed to one which concentrates on the consequences of that conduct. The false logic in which the Court of Appeal engaged is evident in the following dictum:

"In our judgment, if the Crown can prove that the victims have sustained actual bodily harm, in this case psychological harm, and that the accused must have intended the victims to sustain such harm, or have been reckless as to whether they did sustain such harm, and that harm resulted from an act or acts of the appellant, namely telephone calls followed by silence, it is open to the jury to find that he had committed an assault."

Ignoring the misstatement of the mens rea for assault occasioning actual bodily harm,(22) the fact that the appellant's conduct caused harm to the victims is not a sufficient condition for conviction. Swinton Thomas LJ has engaged in the age-old judicial habit of "result-pulled reasoning" (see Ashworth 1995, p 437; MacCormick 1978, Chap VI) which ensures that an undeserving appellant who has engaged in anti-social conduct of a serious kind is convicted but at what cost to the principle of legality.

Secondly, there is the problem of immediacy. If force cannot be applied to the victim immediately, how can there be an assault? Clearly it is not possible to apply force over the telephone. The Court appears to have satisfied itself that causing immediate fear is sufficient - Swinton Thomas LJ stating:

"As to immediacy, by using the telephone the appellant put himself in immediate contact with the victims, and when the victims lifted the telephone they were placed in immediate fear and suffered the consequences to which reference has been made."

This gives rise to the prospect of long-distance assaults. Undoubtedly the victims were caused fear and distress but it is stretching the definition of assault to bring this behaviour within its bounds. Assault is not an offence designed to deal with the creation of fear in general. Its sphere of operation is quite narrow, namely, the creation of a fear (as in the sense of an apprehension) of being subjected immediately, i.e. then and there, to a battery by the assailant. Swinton-Thomas LJ, however, reasoned thus:

"[O]nce the fear and the damage are established, then when a telephone call is made by the appellant and the victim lifts the telephone and then knows that the man is telephoning them yet again, they will be apprehensive of suffering the very psychological damage from which they did suffer."

This reveals that he was reasoning backwards from the fact of psychological harm to construe an assault. Where was the apprehended battery?

Swinton Thomas LJ sought to support his reasoning by reference to the case of Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234 which he considered "bore some similarity to the present case". This was a decision of the Divisional Court affirming the defendant's conviction under the Vagrancy Act 1824 s 4 which provided:

"Every person being found...in any enclosed...garden for any unlawful purpose shall be deemed rogue and a vagabond."

The issue was whether there was evidence upon which the magistrates could conclude that the defendant, when he peered through the victim's downstairs bedroom window causing her fright, had an unlawful purpose namely to assault the victim. The Divisional Court accepted the definition of assault in Archbold (41st ed) para 20-114 as being "any act which intentionally - or recklessly - causes another to apprehend immediate and unlawful violence". Kerr LJ concluded (at p 238):

"...it was wholly open to the justices to infer that her state of mind was not only that of terror...but terror of some immediate violence. In those circumstances, it seems to me that they were perfectly entitled to convict the defendant who had gone there...with the intention of frightening her and causing her to fear some act of immediate violence, and therefore with the intention of committing an assault upon her."

It is difficult to see any similarity to the present case. The victim and the defendant were in close proximity and the apprehension was that he would attack her physically then and there. In the instant case there was no physical proximity and no suggestion that the victims apprehended personal physical violence being done to them by the appellant at that time. The fact that, in the words of Swinton Thomas LJ, "[f]ear could be instilled as readily over the telephone as it could through the window" is not the point; a fear of anything other than an immediate battery is not sufficient.

The only authority which Swinton Thomas LJ could find to support this major redefinition of psychic assault was one first instance decision in a civil action partly based on assault in the Supreme Court of New South Wales, Barton v Armstrong [1969] 2 NSWR 451, in which Taylor J held that a threat made over the telephone was capable of amounting to an assault in the specific circumstances of the case.(23) That a first instance decision in an Australian tort case, which is not even cited in Halsbury's Laws, The Digest or Clerk and Lindsell on Tort, could provide the support for such a radical development in English criminal law is, to say the least, surprising. The case, however, is not fully analogous to Ireland as the threats made were verbal and specifically threatened physical violence to the plaintiff. Australian tort law maintains the requirement that for assault there must be a "direct threat by the defendant which places the plaintiff in reasonable apprehension of an imminent contact with his person either by the defendant or by some person or thing within the defendant's control" (Trindale and Cane 1993, p 42). Australian tort law crucially requires the threats to create an apprehension of an imminent battery. It has not yet accepted that silent telephone calls can constitute an assault nor has it dispensed with the requirement that the victim apprehend an imminent battery. So even this tenuous antipodean authority provides little support for the Court of Appeal's decision.

There has been a huge change in the law in this case although Swinton-Thomas LJ expressed the surprising view that "the conduct complained of falls squarely within the recognised definition of the offence". Undoubtedly the Court of Appeal found Ireland to be an undeserving appellant but that is not a sufficient reason for stretching the law to ensure his conviction. In their keenness to confirm Ireland's conviction the Court forgot the strong admonition against judicial law-making given by Lord Lowry in C v DPP [1995] 2 WLR 383, 392 who having reviewed earlier admonitions in previous decisions of their Lordships stated:

"(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty, or has legislated, while leaving the difficulty untouched...(4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty."(24)

The Court of Appeal has extended the ambit of the law of assault in an unquantifiable way placing the requirement that the victim apprehend immediate personal violence in doubt. As the Court of Appeal reasoned backwards from the fact of harm to conclude that there had been an assault, one is left to speculate whether they would have found an assault in the absence of harm. What does "immediate" now mean? Rather than clarifying the law of assault the Court of Appeal has created more doubt. For example, could indecent suggestions made over the telephone amount to an indecent assault or could threats made over the telephone to a police officer on duty amount to assault on a constable in the execution of his duty?

The decision in Ireland is all the more surprising in light of recent analyses of offences against the person and Parliamentary activity or inactivity. The Criminal Law Revision Committee considered that the law relating to assault was sufficiently well understood not to require statutory definition (CLRC 14th Report, paras 159 & 160). The Law Commission suggested a definition for assault to resolve some uncertainties, particularly relating to trivial touchings, and also because as a matter of principle they considered that the "substance of a criminal offence of violence" ought to be defined but their definition, however, largely codifies the common law (Law Com No 218, paras 18.1-18.7). Parliament has not sought to legislate to place the definition of assault on a statutory basis although it has had ample opportunity to do so, in particular when it enacted the Criminal Justice Act 1988 ss 39 and 40, not to mention the numerous Criminal Justice Acts of the succeeding years. At the same time it has created a number of offences which deal with threatening words or behaviour and nuisance telephone calls (see below). The Court of Appeal should have refrained from stretching the ambit of the s 47 offence of assault occasioning actual bodily harm to cover situations which Parliament had already covered by other offences albeit that the penalties available under these offences are much than is available under s 47. If, however, the penalty Parliament has imposed under the laws which exist is inadequate it is for Parliament to rectify that fault not for the courts to stretch the boundaries of other more serious offences in unnatural ways to rectify this deficiency.

Finally, a fundamental principle which the Court set aside is the non-retroactivity principle. This is stated in Article 7 of the European Convention of Human Rights:

"No one shall be held guilty of any offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed."

While the decision in Ireland does not involve the creation of a new offence by the Court of Appeal it does involve an implicit redefinition of the offence of assault to include conduct which would hitherto not have been covered by that offence. New ways of committing old crimes will undoubtedly arise and courts will be faced with the task of determining whether the new facts fit within the existing statutory or common law definition of the offence. This is an appropriate judicial function. The problem arises, however, when the court discerns that the new antisocial behaviour does not fit within the accepted definition of the offence and then is tempted to redefine the offence to catch this behaviour. This is what the House of Lords did in R v R [1992] 1 AC 599 when it removed a husband's immunity from liability for raping his wife (see further Giles 1992; Ashworth 1995, p 340). It did so because of changed social circumstances.

In determining whether this latest Court of Appeal decision does breach the non-retroactivity principle some guidance is available in Convention case law (see further Harris et al 1995, Chap 7). The European Court of Human Rights indicated the general scope of Article 7(1) in Kokkinakis v Greece A 260-A (1993) para 52:

"Article 7(1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what act and omission will make him liable."

Inevitably the law requires interpretation and perfect clarity is not achievable. This has been recognised by the Commission in X Ltd and Y v UK No 8719/79, 28 DR 77 at p 81 where they stated that what is prohibited is the extension of existing offences "to cover facts which previously clearly did not constitute a criminal offence" but that "it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonably be brought under the original conception of the offence". What is required, according to the Court in S W v United Kingdom No 47/1994/494/576 and C R v United Kingdom No 48/1994/495/577, is the adaptation of existing principles, "consistent with the essence of the offence" in a reasonably foreseeable way. In the context of marital rape the Court concluded:

"The decisions of the Court of Appeal and then the House of Lords did no more than continue a perceptible line of case law development dismantling the immunity of a husband from prosecution for rape upon his wife....Moreover, there was an evident evolution, which was consistent with the very essence of the offence, of the criminal law through judicial interpretation towards treating such conduct generally as within the scope of the offence of rape. That evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law."

Without wishing to express support for the judicial reasoning in R v R or the outcome before the European Court, it can be said that in the case of marital rape the common law had been developing, the marital exception had been eroded by a number of cases, social attitudes to marriage, female autonomy and sexual behaviour had been changing, and the behaviour involved would not necessarily fall within the definition of other offences. By contrast the law on assault prior to Ireland could be determined with a fair degree of certainty from a number of previous decisions. All would have indicated that a battery required physical contact and an assault, in its psychic sense, required the apprehension of an immediate battery. There is no perceptible line of cases in which a new definition of these offences has been evolving. On that basis Ireland's behaviour could not amount to an assault. The decision of the Court of Appeal to the contrary is not a reasonably foreseeable evolutionary step but a huge unanticipated judicial leap based on misconceived social defence considerations. Furthermore his antisocial behaviour was already covered by section 43 of the Telecommunications Act 1984 and Parliament had as recently as 1988 chosen not to redefine assault. Undoubtedly the Court of Appeal's decision is open to challenge under the Convention and would be found to be in breach of Article 7(1) under the case law as it currently stands.

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b. Other Offences under which stalkers may be prosecuted

Parliament has legislated in a way which covers much of the activity in which stalkers engage.

i. The Telecommunications Act 1984

Section 43 of the Telecommunications Act 1984 creates the offence of improper use of a public telecommunication system. This offence may be committed, inter alia, by a person who (a) makes calls of a "grossly offensive or of an indecent, obscene or menacing character" or who (b) makes persistent calls "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This is a summary offence but there is no requirement of proof of purpose where (a) applies. Ireland's activities came within (a) and probably also within (b) but presumably the prosecution were not satisfied with a summary offence even though Parliament had increased the penalty to a maximum fine at level 5 and/or imprisonment for a maximum term of six months. Again obsessional stalkers who make persistent calls may lack the requisite purpose prescribed in the Act.

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ii. The Malicious Communications Act 1988

Section 1 of the Malicious Communications Act 1988 creates an offence of sending letters which convey, inter alia, threats with the purpose of causing distress or anxiety. This, however, is only a summary offence. It also requires proof of purpose which will fail to catch some stalkers.

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iii. The Trade Union and Labour Relations (Consolidation) Act 1992

One statutory offence which derives from a strange source is Trade Union and Labour Relations (Consolidation) Act 1992 s 241 which provides:

(1) A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority -

(a) uses violence to or intimidates that person or his wife or children, or injures his property,
(b) persistently follows that person about from place to place,...
(d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place...."

This offence also calls for proof of purpose; this may cover the obsessional stalker who is seeking to compel the victim to give him attention or the former intimate stalker who is seeking to compel the victim to recommence a prior relationship with him. Proof of compulsion may be difficult where there has been no contact between the victim and the stalker. An additional element which must be proved is that of wrongfulness. This requires that the conduct be tortious (see Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20). In light of the decision in Khorasandijan (below) such behaviour would be a nuisance. Again, however, the offence is only summary.

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iv. Public Nuisance

An offence which has recently been utilised in a case of stalking is that of public nuisance. In R v Johnson (Anthony Thomas), The Times, May 14, 1996, the same panel of the Court of Appeal affirmed the conviction of the appellant of public nuisance based on his numerous obscene telephone calls over a period of five and a half years to thirteen different women in the South Cumbria area. The Court accepted the definition of public nuisance in A-G v PYA Quarries Ltd [1957] 2 QB 169. In that case Romer LJ stated (at p 184):

"[A]ny nuisance is 'public' which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as 'the neighbourhood'; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary...to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue."

Denning LJ stated (at pp 190-191):

"I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."

The defence had contended that each of the telephone calls was a single isolated act to an individual person which could have amounted to a private nuisance but it would be wrong to treat them cumulatively to construct a public nuisance. The Court, however, decided that it was permissible to look at the cumulative effect of the calls and concluded that this amounted to conduct which:

"materially affected the reasonable comfort and convenience of a class of Her Majesty's subjects and was a nuisance so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on her own responsibility."

This represents a novel use of the offence of public nuisance. The factor common to activities which had been held to amount to public nuisances prior to this case was their indiscriminate impact on members of the public (see Smith and Hogan 1993, pp 762-763). The impact of the appellant's telephone calls was not indiscriminate; they were calls targeted at particular individuals whom he had either met socially or through carrying out work at their homes. A call to any one victim had no impact, nor risk of impact, on any other person remaining private as between the appellant and the victim. If one follows through with the reasoning of the Court of Appeal, if the appellant had chosen to dump rubbish in each of their gardens rather than telephoning them, this too would have amounted to a public nuisance rather than a private nuisance. Such a conclusion would come as a surprise to tort lawyers.

Secondly, in what way did the calls materially affect the "reasonable comfort and convenience of life of a class of...subjects"? Again the nature of the activity does not impinge on public health, comfort or enjoyment of public amenities in the way in which noise, smells, pollutions, or obstructions of the highway do. It is difficult to find an analogous case to link to this activity and its effects. In Madden [1975] 3 All ER 155, eight security officers affected by a telephoned hoax bomb warning at the factory where they worked were held not to constitute a class of the public. Furthermore, while it is true that it is a question of fact whether a sufficient number of persons are affected to constitute a class of the public, the nuisance in this case was neither widespread nor indiscriminate. It was not a case of the appellant doing an act which had any potential to affect an indeterminate range of people in the way that noise, pollution or obstruction of the highway may so do. The question has to be asked, at the time each call was made who were the persons who potentially might be affected? Furthermore, at what point did the public nuisance materialise? Was it when the thirteenth victim had been contacted or was it when each had been contacted a certain number of times? The reason for asking this question is that at some point the appellant's actions moved over from being a private matter to being a public matter and the prosecution would have to establish that at that point he knew or ought to have known that a public nuisance would be the result of his actions (see Shorrock [1994] QB 279).

Thirdly, why would it not be reasonable to expect one person to take proceedings on her own responsibility? Public nuisance is useful where no one person suffers particular damage which could form the basis for a private action in tort. While the victims in this case would probably have been unable to sue for private nuisance they did have a remedy through making a complaint to the police of an offence under the Telecommunications Act 1984 s 43. Why did the Court of Appeal consider that it would not be reasonable to expect the victim of an offence to complain to the police. This seems to be a strange message to communicate that victims cannot reasonably be expected to complain to the police. Add to this the fact that the complainant in a criminal case does not bear the cost of the proceedings one is left incredulous at this statement.

There was no need to stretch public nuisance to cover Johnson's actions as they were already covered by the statutory offence. As Johnson's calls were obscene there was no more difficult mens rea requirement under s 43 than under the common law. The only reason for proceeding with a prosecution for the offence of public nuisance in the circumstance was the possibility of a heavier sentence. In fact the trial court imposed a sentence which could have been imposed for the s 43 offence. Again, by extending the criminal law in novel ways, the Court seems to be undermining the legislative authority of Parliament.

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v. The Public Order Act 1986

Where a person stalks someone in public there are several offences under the Public Order Act 1986 which could be utilised. Under s 4 a person is guilty of an offence if, inter alia, he "uses towards another person threatening, abusive or insulting words or behaviour...with intent to cause that person to believe that immediate unlawful violence will be used against him,...or whereby that person is likely to believe that such violence will be used" and under s 6(3) he "intends his words or behaviour...to be threatening,(25) abusive or insulting, or is aware that it may be threatening, abusive or insulting".(26) Thus it would have to be proved that the stalker (1) intended his behaviour to be threatening, or was reckless thereto, and (2) either (a) intended thereby to cause the victim to fear immediate violence or (b) it must have been likely that the victim would have believed such violence would be used. The first part of intent to threaten would require proof of a purpose in the words of Lush J "of intimidating or overcoming the will of the person to whom it is addressed" (see Wood v Bowron (1866) LR 2 QB 21 at p 30). In the case of the obsessional stalker his purpose may be to compel the victim to do or abstain from doing something while in the case of those who stalk following the breakdown of a relationship the purpose often is to compel the victim to return to that relationship; in both cases this element of the offence could potentially be established. In the case of (2)(a) it may be easier to establish this intent where there has been a previous relationship which has involved abuse but this is not crucial as (2)(b) is obviously objective in nature and a jury may readily find that it was likely that the person stalked would fear immediate violence. As the point of focus here is the person threatened (see Loade v DPP [1990] 1 QB 1052), the more timorous that person is the easier it will be for the prosecution to establish that s/he was likely to believe violence would be used.

Under s. 4A ( inserted by the Criminal Justice and Public Order Act 1994 s 154) a person is guilty of an offence "if, with intent to cause a person harassment, alarm or distress, he - (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour...thereby causing that or another person harassment, alarm or distress." Persistent stalking, of the kind to which the Princess Royal was subjected, could amount to this offence but proof of intent may be difficult.(27) However, section 5 provides that "a person is guilty of an offence if he - (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour...within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby" and under s 6(4) he "intends his words or behaviour...to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting". The test of recklessness here, by comparison to s 4, is subjective in nature. Again in the case of the obsessional stalker it may be difficult to establish either intent or subjective recklessness although in the case of recklessness this may be established where the victim has indicated to the stalker that s/he finds his/her actions threatening and wishes the behaviour to stop.

In the case of each of the above offences under the Public Order Act Parliament has determined that there would be no offence where the accused was within a dwelling and the victim was within that or another dwelling. In respect of the s 4 offence the immediacy requirement would largely have the same effect where the threats are issued by a person in one dwelling to the victim in another. This would also rule out telephone threats where the victim and caller are in dwellings. Of course anomalies are created in that the same call from a public telephone could fall within the statutory definition if, in respect of s 4, the immediacy requirement was satisfied. In respect of harassment, alarm or distress it is clear that Parliament is only seeking to catch behaviour which has a public aspect to it. Most forms of stalking cause harassment, alarm or distress and many involve a public element arising from following the victim or besetting the victim's house. The situation in Ireland could amount to one of these offences if the telephone used by the appellant had not been in a dwelling or if the victims did not receive the calls in a dwelling.

Further legislation could remove the need to prove intent for the above offences but whether this is desirable is another matter. The behaviour involved in stalking which might constitute the actus reus in the above offences is not wrongful in itself. It should only become a concern of the criminal courts when it is accompanied by an intention as specified above. If there were to be no mens rea requirement people could end up inadvertently committing the offence because, for example, their behaviour objectively appeared to be threatening and rendered it likely that the victim would either fear violence (s 4) or be caused harassment, alarm or distress (s 5). If the victim is neurotic, this likelihood would be all the greater. In addition, in the absence of a fault requirement rational sentencing which is based on the level of the offender's culpability is not possible. But perhaps the main reason for counselling against any tinkering with the Public Order offences is that they are not the appropriate vehicle to be used to deal with stalking. Stalking comprises a range of actions in which the stalker may engage over a period of time. Stalking is really concerned with a course of conduct rather than a particular incident which may fall under one of the above offences. The real evil to be addressed is this persistent conduct as it is this which has such devastating effects on the lives of victims and which needs to be reflected in sentencing.

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3. Stalking and civil remedies

a. Domestic Violence

The problem of stalking has received a partial solution where it arises in the context of a domestic relationship where injunctions may be available under the Domestic Violence and Matrimonial Proceedings Act 1976.(28) The Family Law Act 1996 will replace the current provisions with a new procedure whereby non-molestation orders may be obtained. The provisions in the Act largely replicate the provisions contained in the Draft Bill appended to Law Com No 207. The Act widens the range of people who may be protected by a non- molestation order covering persons "associated with the respondent" and "relevant" children. An "associated person" is a spouse or former spouse, a cohabitant or former cohabitant (which is confined to heterosexual relationships, s 58(1)), a person who lives or has lived in the same household,(29) a relative, persons who have agreed to marry one another, parties to the same family proceedings, and, in relation to any child, persons who are the parents of the child or who have or have had parental responsibility for the child.(30) A court in deciding whether to make a non-molestation order (and in determining its terms) shall have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant and any relevant child. "Molestation" is not defined but will cover violence or the threat thereof as well as "any form of serious pestering or harassment" (Law Com No 207, para 3.1). Any of the activities which might fall within stalking, such as following a person, watching their home or place of work, telephoning them, interfering with their property, sending them offensive letters or other material, would fall within the ambit of molestation. In those situations covered by the Act, therefore, instances of such behaviour could found a non-molestation order. If the respondent has used or threatened violence against the applicant or a relevant child the court shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances this is not necessary (see s 44). Orders may be made ex parte where it is just and convenient to do so having regard to all the circumstances including the risk of significant harm to the applicant or a relevant child (see s 42). A court may attach a power of arrest to such an order again where violence has been used or threatened and there is a risk of significant harm if such a power is not attached.

Non-molestation orders will hopefully provide greater protection to those who are the victims of stalkers and who fall within the relevant categories of persons entitled to apply for them. It is disappointing, however, that the Law Commission first, and then Parliament decided to limit the class of persons who could apply for such orders. While the statistics deriving from NASH reveal that 80% of stalking victims are stalked by a person with whom they have had a relationship, this statistic does not reveal whether all those relationships would fall within the definition of "associated person". One can speculate that many will have had relationships which have not led to marriage, cohabitation, agreements to marry, or living in the same household but that following their breakdown have resulted in stalking. If the purpose of non-molestation orders is to "secure the health, safety and well-being" of victims of molestation, one is left wondering what the significance of a prior relationship is as a condition for such protection. Is a person's health, safety and well-being less at risk where they either do not know or have not lived with their molester than where they do or have? The Law Commission was aware of legislation in a number of Australian states which placed no limitation on the range of applicants (Law Com No 207, para 3.9) but declined to support such a wideranging power stating:

"We do not think it is appropriate that this jurisdiction should be available to resolve issues such as disputes between neighbours, harassment of tenants by landlords or cases of sexual harassment in the workplace. Here there is no domestic or family relationship to justify special remedies or procedures and resort should properly be had to the remedies provided under property or employment law." (Law Com No 207, para 3.19)

It is clear that the Law Commission were not considering "stalking" as a specific problem and their sweeping generalisation should not be taken as a reason to prevent reconsideration of this issue. While there may be a potential overlap with some legislation this could have been dealt with expressly. Most stalkers will not be neighbours, landlords, employers or fellow employees and thus the potential for overlap is limited. Indeed, the nature of the problem is different from that covered by such legislation. For example, if A, a student, shares a flat with B which they rent from a landlord, and they share chores, meals etc they would be living in the same household. If following the completion of their studies they move to separate accommodation but B, having developed an obsessional fixation on A, begins to stalk her, A could apply for a non-molestation order. By contrast, if A had owned the flat and let a room in it to B, even though they had shared chores, meals etc, she would be unable to pursue this remedy. Property law would not provide her with any more appropriate remedy. The Law Commission, however, did not wish to create "something approaching a new tort of harassment or molestation" (Law Com No 207, para 3.8) (although since the wrote their report such a tort appears to be developing). The problem with this is that they also recognised that:

"behaviour which does not necessarily amount to a tort or a threatened tort can be prohibited under the domestic violence legislation, which can deal with any form of behaviour which has an effect upon the victim sufficiently severe to warrant the intervention of the court." (Law Com No 207, para 3.15)

Why should those who do not fall within the prescribed relationships be left to pursue remedies in tort which the Law Commission itself recognised are slower, more complex and less appropriate for cases of emergency protection. The case for confining non-molestation orders to defined relationships is flawed.(31) A removal of these limitations may provide one of the most useful means of affording some protection to a large number of victims of stalking. This, however, is ruled out by the Consultation Paper which states:

"[T]o extend the Family Law Act [would not be] an adequate solution because it would not cover cases of stalking which lack a sufficient domestic nature to come within the scope of the courts' family law jurisdiction." (Home Office 1996, para 5.4)

This appears to ignore the fact that the jurisdiction to make non-molestation orders is not confined to family proceedings and any limitations of jurisdiction which exist will be as a result of orders by the Lord Chancellor.

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b. Tort

For those who fall outwith the Family Law Act provisions, limited remedies in tort law are emerging. In Burnett v George [1992] 1 FLR 525 the plaintiff had been subjected to a series of assaults, unwanted visits, damage to her house, telephone threats and telephone calls at unsocial hours. The Court of Appeal granted an injunction prohibiting the defendant from entering her property and from assaulting, molesting or interfering with her by acts calculated to impair her health. (see also Pidduck v Molloy [1992] 2 FLR 202). In Khorasandijan v Bush [1993] 3 WLR 476 the tort of nuisance was utilised to grant the plaintiff an injunction against the defendant who had previously been convicted of threatening and abusive behaviour and subsequently of threatening to kill but who continued to pester her by following her and by phoning her.(32) In Burris v Azadani [1995] 1 WLR 1372 the law was further developed when the Court of Appeal affirmed the power of a court to include an "exclusion zone order" in an injunction which restrained the defendant from, inter alia, "(a) assaulting, molesting, harassing, threatening, pestering or otherwise interfering with the plaintiff by doing acts to cause her harm whether directly or indirectly...: (b) making any communication to the plaintiff...whether in writing or orally...; (c) from coming or remaining within 250 yards of the plaintiff's home address...." (for comment see Lawson-Cruttenden 1995). The Court both affirmed that the plaintiff had a cause of action in nuisance and, in addition, under the tort of harassment as the plaintiff had a 'legitimate interest' in receiving protection from behaviour "which might be highly stressful and disturbing". Of course civil remedies are costly and it is necessary to know who the stalker is to be able to institute proceedings. In addition a power of arrest for breach of an injunction in such cases does not exist so further action on the part of the victim is necessary to institute contempt proceedings. These developments in tort also have the effect of undermining whatever the rationale is for limiting the class of persons who can apply for non-molestation orders.

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4. Legislating for stalking

i. Civil Law

In its Consultation Paper (Home Office 1996, para 5.5) the Government proposes a new statutory tort of molestation leaving it to the courts to define. As they have been, and will continue to be, doing so in the context of domestic violence, clarity will emerge while the absence of a statutory definition allows for a degree of flexibility to cover any new forms which molestation may take. A defendant will be liable if he intended to cause harassment or distress or realised or should have realised that his conduct would do so (para 5.6). The existing practice of tailoring injunctions to meet the needs of particular cases would apply. It is important, however, that any such statutory tort provides a defence of lawful excuse so that legitimate activities are not caught.(33) This is provided for by the proposal that it be a defence for the "person to show that he was acting reasonably in the course of his profession, trade, business or other lawful activity" (para 7.5). In a novel proposal the Government suggests that rather than relying solely on the law of contempt to deal with the breach of an injunction, breach of an injunction in the case of stalking should be a criminal offence punishable with up to five year's imprisonment. Such a penalty means that it would be an arrestable offence counteracting one of the weaknesses of contempt proceedings for breach of an injunction. As the standard of proof for obtaining an injunction is the civil standard, it is suggested that to make breach of such an injunction a criminal offence should be eschewed. Rather breach of an injunction should be an aggravating factor in respect of the commission of a "stalking" offence (see below).

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ii. An offence of stalking?

Criminalization of behaviour which falls within the ambit of stalking, remains an option. The offences which may be used at present to deal with this problem have not been designed with that purpose in view. It is important to recognise that stalking is a course of conduct which may combine a range of actions each of which on its own may not appear serious but when combined over a period have a serious impact on the victim causing harassment, distress, alarm, inconvenience and often more serious impairment of the victim's psychological well- being. Current offences under the Public Order, Telecommunications and Malicious Communications Acts address only particular aspects of stalking and do not provide the opportunity for a sentencer to fully reflect the gravity of the conduct in the sentence. Repeat offenders do not face the prospect of more severe sentences. While the offence under the Trade Union and Labour Relations (Consolidation) Act 1992 covers a wider range of activity it is only a summary offence and was designed to deal with intimidation in the context of strikes rather than the problem of stalking. The innovative use of the Offences Against the Person Act and public nuisance by prosecutors, upheld by the courts, reflects, perhaps, judicial frustration at being unable to adequately punish serious behaviour. Where the victim suffers harm recourse to the former statute may be understandable. This again, however, is not a solution although the enactment of the Law Commission's Criminal Law Bill (see Law Com No. 218) would cover behaviour such as that in Ireland and Burstow. This does not appear to have been considered as an option by the Government possibly because such a piece of legislation would take more parliamentary time and would not create the same PR opportunities which a short and pithy statute on stalking would provide. More piecemeal legislation, however, is not desirable; a complete overhaul of offences against the person is long overdue with stalking being treated as an aspect of that problem.

The Government, however, proposes to "develop the existing law relating to harassment and to eliminate the difficulties which have led to its ineffectiveness in dealing with the conduct of stalkers" (Home Office 1996, para 5.17). It proposes two offences (34) which are developments of the offences under sections 4 and 4A of the Public Order Act 1986. The first offence which would be punishable with up to five years' imprisonment and/or an unlimited fine would require:

"the persistent use of words or behaviour, which either intentionally leads a person to believe, or which occurs in circumstances where a reasonable person should have realised that a person would believe, that violence would be used against him or that he is likely to believe that violence would be used against him." (para 7.3)

This appears to be a variation of the offence of assault (as understood before the decision in Ireland) except the belief need not be that violence would be used immediately. The mens rea is a form of 'Caldwell' recklessness. The element of persistence, however, is what sets this apart from assault. The problem with this proposal, however, is the requirement of a belief that violence will be used.(35) The nature of the obsessional harassing conduct engaged in by many stalkers may not be such as to give rise to such a belief even though it may cause distress to the victim and lead to psychiatric injury. In such cases, where harm ensues, resort would have to be made to s 47 or s 20 of the Offences Against the Person Act 1861 as extended in Ireland and Burstow but the new offence would not be made out if harm did not ensue.

The second proposed offence for which the maximum penalty would be six months imprisonment and/or a fine at level 5 of the standard scale, would require:

"the persistent use of words or behaviour which either intentionally causes a person to be harassed, alarmed or distressed, or which occurs in circumstances where a reasonable person should have realised that this would be the effect." (para 7.3)

This offence will obviously catch all the stalking behaviours identified above and will catch both the malicious stalker and the obsessional stalker. However, it will not provide an adequate response to serious persistent behaviour which does not fall within the first offence.

The problem with both the current distortions of the law to cover individual cases and the Government's precipitate proposals for the future is that they create a danger that victims will be denied justice. It is a mistake to regard stalking as serious only where there are threats of violence or where violence is used or anticipated or where harm ensues. Many stalkers have no intention to use violence nor will their behaviour necessarily amount to a threat but it can cause harassment, alarm or distress to the victim nonetheless. The behaviour involved can be serious in its impact on the victim's freedom and their quality of life. The fact that a resilient victim does not suffer psychological harm or anticipate violence should not be the basis for denying them protection.

Legislation does exist in other countries from which lessons may be learned. It is outside the remit of this article to engage in close textual analysis of the various state offences of stalking in the United States (36) or the Criminal Law Consolidation (Stalking) Amendment Act 1994 (No 7) which operates in South Australia. However, a few points will be made which legislators in the United Kingdom should take into account.

The purpose of an anti-stalking law must be to provide protection to victims (37) from behaviour which seriously impairs their quality of life. The essence of this behaviour is not that it threatens violence or will lead to violence (although it generally creates a fear of violence on the part of the victim) but rather that it constitutes an enforced form of contact between the victim and the stalker which the victim does not want and which the stalker pursues either for the purpose of compelling the victim to do or abstain from doing that which the victim has a right to abstain from doing or to do, or simply for the purpose of causing harassment, alarm or distress to the victim That many victims are put in fear, or suffer harm, are aggravating factors but these should not be seen as prerequisites to establishing an offence.

It must also be recognised that stalkers differ in (1) their motivations, (2) the psychiatric, psychological and personality disorders from which they may suffer, (3) their predilection to violence (see McAnaney et al 1993), and (4) their amenability to deterrence by means of criminal sanctions. Any response to stalking, therefore, must seek to provide protection from all such stalkers. Where stalkers fall into the erotomanic category, their criminal liability may be doubtful as they may fit the M'Naghten insanity criteria. An insanity verdict does, of course, provide the opportunity for the court to subject the stalker to a treatment regime whether in an institution or in the community but the defence may seek to avoid the question of insanity and simply challenge the prosecution evidence of intent. If the offence of stalking is framed solely to require an intention to harass, intimidate, threaten the victim or cause the victim to fear violence, a prosecution of such a stalker may fail. In the case of stalkers in the borderline erotomania category the same difficulty with intent arises and such stalkers would fall outwith the M'Naghten criteria. It is crucial, therefore, that the basic offence focus on the conduct and the underlying purpose of coercion which is common to many stalkers (apart from the sociopathic in category 4 who present an entirely different problem) while providing an alternative form to cover those whose intent is to harass etc or who due to their disturbed mind do not form the intent.

In many ways an offence of stalking should seek to provide a means of early intervention and provide a graduated response to reflect the gravity of the offending behaviour. The conduct which stalkers engage in would not constitute an attempt to commit a substantive offence. Even if the stalker is disposed to violence, letters, telephone calls, following of the victim and surveillance of his/her home would, at best, amount to merely preparatory acts. Intervention, however, is justified to prevent the risk of violence and or serious distress or psychological harm to the victim.

As many of the activities (following, watching, telephoning, sending letters etc) which fall within the concept of stalking may be carried out with no illegitimate purpose in mind, it is important that an anti-stalking law does not unduly restrict the rights of citizens to engage in these activities. The performance of one action by a person should not be sufficient to amount to this offence (although it may amount to one of the existing offences outlined above). The feature which distinguishes stalking from many other forms of offending is that the stalker engages in a course of conduct in respect of the victim. To establish an offence of stalking there should be a requirement that the stalker engage in a course of conduct comprising at least two separate incidents of unwanted contact. An additional requirement that the conduct be engaged in without lawful excuse would provide protection for those who may contact the victim for a legitimate purpose, albeit unwanted by him or her, for example, debt collectors or journalists.

In legislating, however, the mistake would be to create an offence unconnected to the other remedies which may be available. On conviction of an offence of stalking a court should be empowered to make a non-molestation order. The Government have proposed, however, that the victim should be free to apply to the civil courts for an injunction following a conviction. Apart from giving rise to a duplication of judicial effort this would be an additional burden on the victim both in emotional and financial terms. The more sensible solution is for sentencers to have the power to make such orders. Generally, stalking committed while such an order is in force (whether made in civil or criminal proceedings) could amount to an aggravated form of the offence. The existence of the aggravated form of the offence would also act as an incentive to victims to apply for non-molestation orders at an early stage whether or not complaint had been made to the police. This would also provide a means of protection to the victim where, perhaps, the police had not treated the victim's complaint seriously. The aggravated form of the offence could also cover stalking where the intention is to cause fear of serious violence or where harm, either physical or psychological, is caused by the offence, or where damage is caused to the victim's property. Similarly, possession of an offensive weapon on an occasion to which a charge relates, should amount to an aggravating factor as it evidences a risk of violence which the activity on its own may not evince.

A further purpose which the legislation must serve is that of providing a framework within which sentencers are enabled to impose appropriate, graded, sentences which reflect the gravity of the offending. Conviction of the basic offence should be a sufficient basis for the imposition of a non-molestation order. Sentencers should also be aware of their powers to impose appropriate orders, for example, probation with a treatment requirement (see Powers of Criminal Courts Act 1973, sch 1A, para 5) or a hospital order (see Mental Health Act 1983 s 37). Because of the unusual nature of this type of behaviour it may even be appropriate to impose a requirement that all those convicted of stalking be remanded for psychiatric reports if such were not obtained prior to trial. If the aggravated form of the offence is made indictable only the sentencer would have the additional power under s. 41 of the Mental Health Act 1983 to make a restriction order. As it is inevitable that many stalkers may not be amenable to deterrence or rehabilitation and will reoffend, and probably do so in respect of the same victim, repeat offences should either be regarded as aggravated forms of the offence or, alternatively, be triable only on indictment to enable courts to impose sentences which afford greater protection. To this end it is important that any offence of stalking is treated as an offence of violence as defined in the Criminal Justice Act 1991 s 31 to permit sentencers either to impose a custodial sentence under s 1(2)(b) or a longer custodial sentence under s 2(2)(b).

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Conclusion

It would be foolish to think that an anti-stalking law will resolve the problem of stalking. The psychology of many stalkers may not be amenable to change and thus their behaviour may continue regardless of the punishment imposed on them. In addition, whatever, is done in relation to stalking it will probably have limited impact on the sociopathic stalker. Providing protection from such individuals is, essentially, a policing problem but one which is unlikely to offer up any effective solution. What is clear, however, is that more information is necessary on the incidence of stalking and the psychology of stalkers to ensure that the most effective means are adopted to deal with the problem. There is a problem and it is not being addressed adequately by current legislation or by the hamfisted attempts by the courts to bring the offending behaviour within the ambit of other offences. An anti-stalking law is necessary to recognise and deal with this conduct rather than the haphazard pieces of legislation and common law which may be used to deal with particular aspects of the problem. Such legislation, however, requires careful drafting and a grading of offences and penalties. It also needs to be tied in to other processes, in particular non-molestation orders, to enable early intervention to take place before the conduct and its consequences become serious. In addition, there must be recognition that police, courts and prisons are not the only means to achieving a solution to the problem. Probation officers, social works and mental health practitioners may all have a role to play. The danger in the Government's proposals is that they are a precipitate response to the problem resulting from recent media attention. The proposed offences and tort, if enacted, would not provide an adequate solution to the problem although a quick response may enhance the Government's "law and order" credentials and provide a few extra votes for them at the next election. The problem with precipitate legislation, however, is that its deficiencies come home to roost later as the history of the Aggravated Vehicle Taking Act 1992 and Dangerous Dogs Act 1991 show only too clearly.

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Bibliography

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Footnotes

(1) See Goode (1995) who states that the essence of stalking is "intentionally harassing, threatening, and/or intimidating a person by following them about, sending them letters or articles, telephoning them, waiting outside their place of abode and the like". The Home Office definition is more limited: "Stalking...can be broadly described as a series of acts which are intended to, or in fact, cause harassment to another person" (Home Office 1996, para 1.2). Back to text.

(2) See e.g. Davis v Lane 87 Eng Rep 887 (QB 1704); King v Nettle 1 Hawkins, Pleas of the Crown (6th ed 1787) 254 n 2; R v Dunn 113 Eng Rep 939 (QB 1840). Back to text.

(3) See HC Deb vol 263, col 345w. Home Office Minister David Maclean announced that "proposals to combat the menace of stalkers will be published by the Government at the earliest opportunity" Home Office Press Notice 140/96 9 May 1996. When the Criminal Justice and Public Order Bill was going through its committee stages an attempt was made to introduce an offence of stalking which would carry the same penalties as the Public Order Act 1986 s 5. The offence would have been made out on proof that the accused had repeatedly molested, pestered or followed another and so behaved within the hearing and sight of such person that such person was likely to be caused harassment, alarm, distress or fear for personal safety. The amendment was rejected. Back to text.

(4) Anti-stalking Legislation: Hearing on S. 2922 Before the Senate Committee on the Judiciary, 102d Cong, 2d Sess (1992), cited in Strikis (1993). See also the National Victim Centre, http://www.nvc.org/ddir/info43.htm Back to text.

(5) The Los Angeles Police Department Threat Management Unit's files formed the basis of a study by researchers who developed a slightly different typology of stalkers: (i) simple obsessional (equivalent to "Former Intimate" Stalkers); (ii) love obsessional (equivalent to "Borderline Erotomania"); (iii) erotomania; and (iv) false victimisation syndrome (no equivalent). See Zona et al 1993. Back to text.

(6) Kurt states (1995 p 223): Back to text.

"This condition has been recognized as a pathological form of love since ancient times. Descriptions of it can be found in the writing of Hippocrates, Plutarch, Galen and others."

See further Enoch and Trethowan 1979.

(7) LAPD estimates 48% of stalkers fall into this category. Back to text.

(8) LAPD estimates that 47% of stalkers fall into this category Back to text.

(9) The 1990 FBI Supplemental Homicide Report reveals that 4% of male homicide victims in 1990 were killed by their wives or girlfriends but 30% of female homicide victims were killed by husbands or boyfriends. In the United Kingdom for the years between 1982 and 1987 38%-49% of female victims, but only 5%-7% of male victims, were killed by their partners: see Hansard (HC), 12 May 1989, Vol 152 cols 565-566, cited in Law Com No 207, para 2.2. In describing the nature of domestic violence the Law Commission include a range of behaviours which would fall within the definition of stalking: see para. 2.8. Back to text.

(10) In Parmenter (1991) 92 Cr App R 68 before the Court of Appeal, Mustill LJ lamented that the law after 129 years was "so impenetrable". In Savage [1992] AC 699 at p 752 Lord Ackner referred to the 1861 Act as "a rag-bag of offences brought together from a wide range of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form". The CLRC 14th Report, para. 3. states that the Act of 1861 "is overdue for replacement". In Law Com. No 218 the Law Commission stated:

"Law that is muddled, irrational, unclear, or simply difficult of access, is almost certain to produce injustice....the present law of offences against the person suffers from all those defects."

Back to text.

(11) The issue before the House was whether under s. 6(3) of the Criminal Law Act 1967 a conviction of the lesser offence of assault occasioning actual bodily harm could be returned on a trial of a single count of inflicting grievous bodily harm. The House held that such a conviction could be returned where the allegations impliedly, if not expressly, include an allegation of assault. The House reaffirmed this point in Savage and Parmenter [1992] 1 AC 299. Back to text.

(12) His Lordship cited with approval the reasoning of the Supreme Court of Victoria in Salisbury [1976] VR 452:

"[A]lthough the word 'inflicts' does not have as wide a meaning as the word 'causes'...the word 'inflicts' does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted...either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'inflicted' it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm."

Back to text.

(13) Here the issue was whether a verdict of guilty of "causing" GBH contrary to the Offences Against the Person Act 1861 s 20 could be returned on an indictment charging causing GBH with intent contrary to s 18. The Court of Appeal had quashed the conviction on the basis that the offence was one unknown to the law as the statute used the word "inflict". The House of Lords restored the conviction on the basis that the jury's verdict could only mean causing GBH on another person under that section, i.e. in a manner required by the section. Back to text.

(14) Lord Mustill dissented on the main issue in the case but he was the only one of their Lordships to examine the meaning of "inflict". Back to text.

(15) See DPP v Little [1992] QB 645 where it was held that assault and battery were separate offences contrary to Criminal Justice Act 1988 s 39 and that they had been statutory offences since the enactment of the Offences Against the Person Act 1861 s 47. Back to text.

(16) This seems to have been settled for a long time as East, A Treatise of the Pleas of the Crown Vol 1 (1803) 406, defined assault and battery as follows:

"An assault is any attempt or offer with force and violence to do a corporal hurt to another, whether from malice or wantonness; as by striking at him, or even by holding up one's fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against his person; as by a pointing a weapon at him within the reach of it. Where the injury is actually inflicted, it amounts to a battery, (which includes an assault;) and this, however small it may be....".

See also Hawkins, A Treatise of the Pleas of the Crown Vol 1 (1716) 133. Back to text.

(17) See Thomas (1985) 81 Cr App R 331 and Blackstone, Commentaries, iii, 120 states:

"[T]he law cannot draw the line between different degrees of violence, and therefore prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner."

Back to text.

(18) One which will not be explored is whether words alone can constitute an assault and if so, can the absence of words do so. Back to text.

(19) Doubtless the editor of the Oxford English Dictionary will be interested in this use of the word "violence" which the Shorter OED defines as:

"the exercise of physical force so as to cause injury or damage to a person; physically violent behaviour or treatment."

Back to text.

(20) Third Report 1992-93, Domestic Violence HC 241-1, para. 5 adopting the definition suggested by the Domestic Violence Intervention Project. The Law Commission in Law Com 207, recognised the pressure to widen the meaning of violence (para 2.3):

"The term "violence" itself is often used in two senses. In its narrower meaning it describes the use [or] threat of physical force against a victim in the form of an assault or battery. But in the context of the family, there is also a wider meaning which extends to abuse beyond the more typical instances of physical assaults to include any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect upon the health and well-being of the victim, albeit that there is no "violence" involved in the sense of physical force."

Back to text.

(21) See Palin (1995) 16 Cr App R (S) 888; Richart (1995) 16 Cr App R (S) 977; Ragg [1995] Crim LR 664. In Richart Court of Appeal criticised the definition of "violent offence"for being unduly narrow but it only recommended amendment of the statutory definition to include "an offence which would lead to a reasonable apprehension of violence" in the sense of physical injury. Back to text.

(22) In Savage [1992] 1 AC 699, 742, Lord Ackner stated:

"The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused."

Back to text.

(23) These circumstances included prior threats by the defendant to kill or have killed the plaintiff and the defendant had engaged hired men to carry out these threats who had followed the plaintiff. Accordingly, while the defendant made the threats over the telephone the plaintiff feared immediate violence at the hands of the defendant's hired men who might be in a position to carry them out. Back to text.

(24) It is interesting to note that Lord Lowry was in the panels which decided both R v R and R v Brown! Back to text.

(25) If threats are made to a person to kill that person or a third party this may be an offence under the Offences Against the Person Act 1861 s 16. In this case the threat must be made without lawful excuse and with the intention that the person to whom it is made will fear that it would be carried out. In the case of many former intimate stalkers such threats may be made. Back to text.

(26) If words (and silence) could constitute an assault why would Parliament enact this provision? ATH Smith considers that this provision has created a statutory form of assault (Smith 1987, p 101). Note also the Home Office mistakenly believe that intention only will suffice for this offence (Home Office 1996, para 3.4). Back to text.

(27) This is a problem with many of those who may engage in stalking as they may be suffering from an obsessional or delusional condition. McAnaney et al state:

"[The requirement of intention] may mean that anti-stalking statutes will not reach people who, because they are delusional or otherwise, are not capable of forming the intent. The delusional offender may be acting out of 'love' for the victim, or out of a belief that [he or] she is, or is meant to be, bonded to the victim." (McAnaney et al 1993, p 907)

Back to text.

(28) See also Domestic Proceedings and Magistrates' Courts Act 1978 s 16. Back to text.

(29) Otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder. This provision could cover a gay or lesbian relationship where domestic violence is not unknown (see Stanko 1993; Lockhart et al 1994). Back to text.

(30) The Law Commission included an additional category of associated persons namely, persons who have or have had a sexual relationship with each other (see Law Com No 207, Draft Bill cl 2(f)). Back to text.

(31) A victim of stalking may complain to the Magistrates' Court and seek to have his/her stalker bound over to keep the peace or be of good behaviour: Magistrates' Courts Act 1980 s 115. The order may name the complainant as the person for whose protection it is made (see Wilson v Skeock (1949) 65 TLR 418) but there is no power to insert any other specific conditions such as could be inserted in a non- molestation order (see Randall (1986) 8 Cr App R (S) 433). Back to text.

(32) The Court of Appeal also stated that harassment which caused physical or psychiatric illness too the recipient was actionable and that where there was a risk that the cumulative effect of harassment might cause such illness it could be restrained on a quia timet basis. (See for comment Bridgeman and Jones 1994; R. Townshend-Smith 1995). Back to text.

(33) The obtaining of an interlocutory injunction on 15 August 1996 by the Princess of Wales against the photographer Martin Stenning has raised concerns about press freedom being restricted. The order banned Stenning from "approaching within 300 yards of her, communicating with her, and harassing or interfering with her safety, security or well-being". Back to text.

(34) For both offences it would be a defence for the "person to show that he was acting reasonably in the course of his profession, trade, business or other lawful activity." (para 7.5) Back to text.

(35) It is assumed that the Government is using the term "violence" as it is generally understood and not in the novel way in which it was used by the Court of Appeal in Ireland. Back to text.

(36) For this and a useful model statute see Faulkner and Hsiao 1994; Lingg 1993; see also National Victims Centre for a collection of State Statutes. Back to text.

(37) The legislation should include within the definition of "victim" members of the victim's family or household or others in an intimate relationship with the victim as they may become targets for the stalkers threats or conduct. Back to text.