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12 Jun 1996 : Column 1817

Stalking (No. 2) Bill [H.L.]

9.43 p.m.

Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time.

The Bill has had a somewhat tangled history in the sense that the issue of stalking and harassment of individuals by other individuals over a considerable time in various often painful ways has been before Parliament on a number of occasions. Most recently it was during the passage of the Criminal Justice and Public Order Bill in 1994. In another place Lady Olga Maitland sought to introduce a measure which would have provided for additional penalties against stalking, and would have amended Section 5 of the Public Order Act 1986 and Section 154 of the Criminal Justice and Public Order Bill as it then was. She was supported by Labour Members but opposed by the Government on grounds which the Government still use; namely, they support the principle of a Bill of this kind but are still consulting about the way in which it should be achieved.

Since that time there has been the abortive Family Homes and Domestic Violence Bill, which achieved the support of this House but was ignominiously abandoned at the end of the last Session, and has only half been brought back in the Family Law Bill. It is not that that is on the same subject, but it provides very much the same kind of definition of an offence as is provided by the Bill I present today. The analogies are quite valuable.

There have been some improvements in the way in which the matter has been treated in the courts. Most recently, it was established that there is an offence of psychological grievous bodily harm. Anthony Burstow was convicted of grievous bodily harm to Tracey Sant and sentenced to three years' imprisonment for a series of very foul stalking activities towards her. He sent her soiled sanitary towels, he stole her underwear from lines and poured salt on her car. Generally speaking, he made her life impossible over a considerable period of time.

Some stalking does not consist of acts that are violent or offensive in themselves, but can consist of acts which in isolation might be perfectly reasonable, such as sending flowers or gifts, but which over a period of time, by repetition and often by including excessive phone calls and letters, can be exceedingly painful in total to the person being stalked.

I should make it clear that stalking is not only by men of women. Kingsley Martin, when he was editor of the New Statesman before, during and after the war was stalked for a considerable number of years by a woman who was described as elderly with thick glasses and grey hair, who used to appear at his home as he was about to leave for work, appear at work as he was arriving from home, appear when he went out from the New Statesman office, and appear on every occasion when, for example, he went to speak at public meetings. It reached the stage over a period of years where he would not leave his home or office without a member of his family or a colleague accompanying him. It was very painful. I believe he succeeded in getting an

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injunction from a judge in chambers to stop it. Apparently, the injunction worked on that occasion. This Bill is not purely about women being stalked by men. The offence can apply to anybody, although it is undoubtedly true that it applies mainly to women being stalked by men.

When the police are approached by people who are being stalked, they give various practical advice which I am sure is valid. They talk about having a mobile phone available and about panic buttons; and they refer from time to time to the possibility of action to prevent a breach of the peace. As was recognised by the Government as recently as 9th May, when Mr. David Maclean wrote to my honourable friend Janet Anderson, who introduced a Bill earlier this year, the Government are looking for a solution to the problem at the earliest opportunity. Mr. Maclean told Janet Anderson that the Lord Chancellor's Department was aware of the analogy of domestic violence legislation and was looking to see how that might be used as an analogy in seeking to solve the problem of stalking.

As I said, the problem is not that the Government do not recognise the importance of the issue, which affects very painfully and over a very long period of time a considerable number of women in this country, but that they do not know--or claim they do not know--what to do about it. This Bill may not be a perfect attempt, but it is certainly a serious attempt, to deal with the problem of stalking.

Clause 1 provides definitions of stalking and spells out a whole number of activities which will be called "stalking", provided that they are:

    "reasonably likely to cause that other person to feel harassed, alarmed, distressed or to fear for his safety".

Clause 2 provides that stalking is an offence when defined in that way, with a penalty of up to five years' imprisonment; that a constable may effect an arrest without a warrant; but that a defence exists for the offence if the accused:

    "did not know and had no reasonable cause to believe"
that his actions caused the other person to feel harassed, alarmed, distressed, or fear for her safety.

Clause 3 provides for prohibitory orders to be granted by magistrates on the application of somebody who is being stalked. There is provision for such orders to be granted without the appearance of the respondent; but the respondent may appear, and if he does, the issue is decided on the balance of probability. It does not mean, if a prohibitory order is given, that the respondent is guilty of a criminal offence. There is reference in the Bill to the possibility of counselling for the respondent. But the clause provides that there is an offence for breach of the conditions of a prohibitory order.

Clause 4, which is very brief, excludes those who are acting in pursuit of a statutory or other lawful authority.

Clause 5 is concerned with "Citation, commencement and extent".

A number of objections have been raised. Indeed, there was a News Release by the Home Office on 9th May which accompanied Mr. David Maclean's letter to Janet Anderson. It is necessary for me briefly

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to rehearse those objections and consider how far the Bill deals with them and how further work may be required in Committee.

First, it is argued that the definition of stalking is too wide. There are laws against stalking in other parts of the world. Laws exist in Canada, states of the United States and states in Australia. They appear to work. In this Bill we have taken the best and most workable definitions of stalking and sought to put them into British legislation. If they are too wide, it is up to Parliament to narrow them and be more precise about them when the matter comes to Committee.

Another objection is that journalists, in particular, might be constrained from their activities by a stalking law. Of course, the whole issue of what journalists may or may not do in pursuit of a news story goes very much wider than stalking. It is part of privacy law. The adequacy of the law of privacy and proposals for strengthening the law of privacy are of enormous importance and will have to be debated by Parliament at some stage, if only because it appears that the European Court of Human Rights is not satisfied with British legislation on this matter. I do not feel that I need pursue the matter here, except to say that there are defences provided in Clauses 2 and 4 of the Bill.

Then there is the objection that the Bill provides a combination of civil and criminal measures to deal with stalking. Frankly, I find that objection incomprehensible. I do not see why we should not use both the criminal and civil law to pursue what is patently agreed to be an offence. I do not see why we should not have one single Act of Parliament referring both to the civil and criminal law. There have been improvements in the powers of the civil law in regard to stalking. There is now more generally recognised a civil offence of harassment. A case as recent as July of last year in the Court of Appeal of Burris v. Azadan is an example of that.

We need not only a civil offence which is available theoretically, but also a civil offence which is available easily in a magistrates' court--which is what is proposed in the Bill. We need something which does not require legal aid; we need informal procedures; we need the issue to be judged on the balance of probabilities and we need what the Bill provides--that is, that the respondents should not acquire a criminal record as a result. It is no good leaving it to the common law because the common law does not provide adequate powers of arrest. I would argue that the combination of the criminal and the civil law is necessary to deal with this acknowledged offence and the acknowledged pain experienced by a significant number of people in this country.

I conclude by saying to the Government that I appreciate that their anxieties about the drafting of the Bill may be genuine. I am not saying that they are not real concerns being expressed by lawyers advising the Home Office or the Lord Chancellor's Department. But we have an opportunity in this House--and that is what this House is for--to consider a draft Bill which I put before your Lordships now; to consider it with the help of officials and draftsmen and to come up with something which Parliament can consider and approve.

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I challenge the Minister to say whether, if this Bill goes to Committee as I believe it should, they are willing to participate in the process at Committee; whether they are willing not only to comment on amendments that may be tabled by other people, but also to suggest improvements of their own. It is in all our interests that we should proceed as quickly as possible, consistent with good legislation, to deal with stalking. That is what, above all, the women of this country want. It is within the power of government and the Home Office to give them that help and that assurance. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(Lord McIntosh of Haringey.)

9.53 p.m.

Lord Dixon-Smith: My Lords, I was interested to hear the remarks of the noble Lord, Lord McIntosh, in introducing this Bill. He covered the ground far better and more thoroughly than I can. I totally agree with him that behaviour now identified as stalking is wholly abhorrent and unacceptable. One can only feel the greatest sympathy for anyone who suffers from that form of harassment.

I rise to speak for two reasons. First, I wonder whether this is the right Bill to deal with this matter. I have great sympathy with those who have the responsible task--it is a terrible task--of drafting a parliamentary Bill. I have to say that the intentions of the Bill, and therefore, of course, of those who drafted it, are entirely honourable. But what I can only describe as a "you know what I mean" approach to legislation simply is not satisfactory. There is also the question, to which I shall return, of how far a person who feels that they are being stalked can obtain redress under existing law.

Next, I shall quote from the Bill--and I hope I shall be forgiven for this--somewhat selectively. Clause 1 states:

    "In this Act, 'stalking' shall mean engaging in a course of conduct whereby a person--

    (a) follows, loiters near, watches or approaches another person".
I miss out paragraph (b) deliberately. Paragraph (c) states:

    "loiters near, watches, approaches or enters a place where another person lives, works or repeatedly visits".
Paragraph (g) states:

    "does any other act or acts in connection with another person so as to be reasonably likely to cause that other person to feel harassed, alarmed, distressed",
and so on. Clause 2(1) then states quite properly:

    "A person who stalks another person is guilty of an offence".
Finally, Clause 2(3) states:

    "A constable may arrest without warrant a person whom he has reasonable cause to suspect to have committed or to be about to commit an offence of stalking".

That is the wording of the Bill. We need to consider one or two situations. All the world is supposed to love a lover, or so it was said. But how many young swains have loitered for the chance of a glimpse of an unobtainable object of desire? I remember being 17, 18 or 19, once a long time ago. I accept that times have

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changed and a more direct approach, perhaps not to say a blunt approach, may have become the norm. But do we really wish to make that a criminal offence? The Bill does.

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