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House of Lords

Friday, 24th January 1997.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Lincoln.

Protection from Harassment Bill

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a second time.

The aim of this Bill is to protect the victims of harassment. It will protect all such victims whatever the source of the harassment--so-called stalking behaviour, racial harassment, or anti-social behaviour by neighbours. I am sure that all Members of this House have been moved, as I have, by the details of the cases which have come to public attention in the past year or two. Those cases have highlighted the devastating effect that those who cause harassment to others can have on the lives of their victims. The remedies contained in this Bill will, I believe, provide effective relief for those victims.

My right honourable friend the Home Secretary, in another place, congratulated Ms. Janet Anderson on her efforts in raising this issue in the summer. The noble Lord, Lord McIntosh of Haringey, is entitled to the same congratulations in respect of your Lordships' House. The Government were unable to support the specific measures brought forward in the last Session, as we were not convinced that they provided effective or workable solutions to this problem. The Government instead announced the publication of a consultation document. The Bill before your Lordships today represents the results of that consultation and the measures in the Bill I believe command the overwhelming support of respondents.

Perhaps the first question the Government must answer when bringing legislation before your House is as to why the legislation is needed. In the case of the conduct in question--causing harassment--there is evidence that the courts themselves are already interpreting their existing powers in such a way as to provide relief for victims. The civil courts have granted injunctions to prevent the repetition of such behaviour and the criminal courts have, in some cases, equated severe psychological harm to bodily harm. In the light of those developments, is new legislation necessary? The Government's answer to that question is an emphatic yes.

Though the Government accept that some court decisions have extended existing civil law provisions to protect the victims of harassment, the extent to which the courts are prepared, or are able, to provide relief in these circumstances remains unclear. The Government believe that it would be right to provide greater certainty through the creation of a statutory tort. Not only does the creation of a statutory remedy provide a clear and

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certain basis for victims to take action in the civil courts, it also gives us the opportunity to provide statutory defences to such actions in order to protect the police, security agencies and others such as journalists, private investigators and debt collectors, whose legitimate activity might, on occasions, resemble the conduct pursued by stalkers.

Moreover, the cases where the criminal law has been used successfully have been where the psychological harm inflicted on the victim has been so severe, that the courts have been able to regard it as grievous bodily harm. But there remain doubts about the wider application of the law on assault to the phenomenon of stalking. The Government believe that victims should be able to seek the protection of the criminal law at an earlier stage, before the harm inflicted on them reaches such a serious level.

In the light of those considerations, the Government are entirely satisfied that legislation is necessary. The Government believe that it is right that provisions to deal with the menace of stalking and harassment should be available in both civil and criminal law. Criminal sanctions are necessary so that victims can call upon the police to investigate instances of harassment, particularly where the identity of the person causing the harassment is not known to the victim, and because the conduct itself is sufficiently reprehensible for society to express its disapproval by means of criminal penalties.

Criminal proceedings cannot always protect a victim from anticipated harm. The criminal law cannot provide protection for someone who might reasonably expect that they that may be subject to harassment in the future. Nor does it provide protection where the case cannot be proved beyond reasonable doubt. In civil proceedings the court, if it is satisfied on the balance of probabilities that the defendant harassed the victims, should be able to order the defendant to compensate the victim for the distress and disturbance caused by the harassment. The civil court should also be able to grant an injunction preventing the carrying out of any specified activity which would amount to harassment. I believe that it is an advantage of civil proceedings that the precise order can be tailored to the circumstances of the case.

I have so far explained why the Government consider legislation is necessary on this topic and why both civil and criminal measures are thought necessary. I shall now explain briefly the detailed provisions in the Bill.

Clause 1 describes the conduct which, in England and Wales, is to be prohibited. The Government have given careful consideration to the formulation of this provision, and, of course, consulted widely. Some have argued that it is necessary to define the particular acts which constitute stalking and prohibit them. But stalkers use a variety of conduct to harass their victims. If a list approach was adopted, it is likely that stalkers would simply adopt another type of conduct, not covered by the list, in order to carry on their campaign of harassment.

The approach adopted in Clause 1 therefore is to define the prohibited conduct in terms of the effect it has on the victim--harassment. The courts are familiar with the term "harassment" and regularly interpret it

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when dealing with offences under the Public Order Act 1986. Clause 1 prohibits a person from pursuing a course of conduct which amounts to harassment and which he knows or ought to know amounts to harassment of another. A person ought to know that their course of conduct would amount to harassment of another if a reasonable person in possession of the same information would think the conduct in question would amount to harassment.

This is an important provision as many stalkers claim that they have no intention of harassing their victims--ignoring the devastating effect that they can have on their victims' lives. This formulation will enable the courts to look at the information in the possession of the stalker and, on that basis, decide whether the stalker ought to have known the effect of his conduct.

Subsection (3) of Clause 1 sets out circumstances where the prohibition does not apply. Clearly conduct pursued for the prevention or detection of crime should not be covered by the Bill's provisions, nor should the conduct of those required to act under any enactment or rule of law. The third circumstance is where in the particular situations the pursuit of the course of conduct is reasonable. The provision will prevent those who are engaging reasonably in otherwise legitimate activity, such as journalism or political canvassing, from being penalised.

Clause 2 makes pursuit of the conduct set out in Clause 1 a criminal offence. The offence will be summary only and subject to a maximum penalty of six months' imprisonment and/or a level 5 fine. Subsection (3) of the clause makes the offence arrestable under Section 24(2) of the Police and Criminal Evidence Act 1984.

Clause 3 creates a statutory tort in relation to the conduct set out in Clause 1. Subsection (2) permits claims for damages. Subsection (4) creates a criminal offence of breaching an injunction made by the court under the provisions of this clause. Though, of course, contempt of court proceedings are available to deal with breaches of a civil order, the Government consider that, in the circumstances surrounding a breach of a non-molestation order of this kind, the use of police investigative powers and police and CPS assistance in the prosecution of those who breach such orders are essential to provide adequate protection for the victims. In view of some speculation about this provision, I must make it clear to your Lordships, however, that any criminal proceedings for a breach of order would not begin unless the subject of the order had been informed of its contents and any breach would have to be proved beyond reasonable doubt--that is, to the criminal standard of proof.

Subsection (3) of this clause was inserted in the Bill by an Opposition amendment in another place. The intention of this subsection is to give the civil courts the power to order a person who is subject to an injunction under this clause to undergo counselling. Having considered this carefully, the Government have reached the view that they cannot agree to the retention of this subsection in the Bill and will be seeking your Lordships' agreement to remove the provision from the

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Bill at Committee stage. I do not propose to go into the detail of the reason for that at the present time. It may be that, on reflection, the Opposition will be able to reach the same view. But we can obviously consider that.

Clause 4 of the Bill creates a higher level criminal offence of putting someone in fear of violence. Where the level of harassment is such that a person is caused to fear violence, the Government believe that the higher penalties provided by this clause--five years' imprisonment and/or an unlimited fine--are appropriate and the defence of acting reasonably should not be available. It cannot be reasonable to place someone in fear of violence.

Clause 5 permits a criminal court, when it has convicted a person for an offence under Clauses 2 or 4 of the Bill, to make an order for the purpose of protecting the victim of the offence, or any other person mentioned in the order, prohibiting the person from carrying out further conduct which amounts to harassment or causes fear of violence. Breaching such an order will itself be a criminal offence with a maximum penalty of five years' imprisonment and/or an unlimited fine.

The provision gives the criminal courts in these specific circumstances a new sentencing power which is similar in its extent to a civil injunction. We have listened carefully to those who have argued that it cannot be right, in circumstances such as those, to require a victim to go through a second hearing in a civil court, following a conviction in a criminal court, to gain an order preventing future harassment. We think it right, therefore, that the criminal courts should have that power in those limited circumstances.

Clause 6 ensures that the limitation period for damages claims in respect of harassment is six years.

Clause 7 interprets some of the terms used in Clauses 1 to 5. Harassment shall be interpreted as including alarming the person or causing distress. A course of conduct must involve conduct on at least two occasions, and conduct includes speech.

Clauses 8 to 11 make equivalent provision in Scotland to that proposed for England and Wales, except that no new criminal offence of harassment or causing fear of violence is proposed for Scotland. The existing common law in Scotland already covers the conduct in question.

It is necessary to ensure that the work of the intelligence and security services is not compromised. Clause 12 therefore provides that the Secretary of State may certify, retrospectively, that anything done by a specified person on a specified occasion related to national security, the economic well-being of the United Kingdom or to the prevention and detection of serious crimes was done on behalf of the Crown. The provisions of the Bill do not bind the Crown and, therefore, agents of the Crown--such as the intelligence and security services as well as other investigative agencies such as Customs and benefit fraud investigators--pursuing their responsibilities are exempt from its provisions. The certification procedure is intended to ensure that this exemption can be proved in the situations described quickly and effectively.

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Clause 13 of the Bill permits the extension of the relevant provisions to Northern Ireland by negative resolution. The remaining clauses deal with the extent, commencement and Short Title of the Bill.

Those are the Government's proposals to deal with stalking and harassment. They will deal with the menace that is known as stalking and also provide an effective remedy for those who are persecuted by other forms of anti-social behaviour. Passage of the Bill will, I believe, make the streets and communities of this country safer in this respect. I commend the Bill to your Lordships.

Moved, That the Bill be now read a second time.--(The Lord Chancellor.)

11.20 a.m.


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