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Earl Russell: The noble Lord has confused two different types of amendment. His honourable friend Mrs. Anderson attempted to define by means of a list. That clearly created a risk of exclusion. The noble and learned Lord and I are at one on that point. There was a real risk that things not in that list might get excluded.

I merely attempt to give guidance on how the word "harassment"--to which I made no objection at any stage in my speech--might be understood. The effect is clarificatory and not exclusive. The noble Lord, Lord McIntosh, has confused two totally different types and categories of definition. He is awfully hard to satisfy today.

The Lord Chancellor: The noble Earl's amendment seeks to delete Clause 1(1)(b) and substitute other

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words. But he has left in Clause 1(2). So there is a subsection left hanging in the air, which I know will be appreciated.

I took the noble Earl's point about lack of consent at Second Reading. Lack of consent may have some importance, but when making a criminal offence some kind of intention has to be associated with it, in order that it satisfies the ordinary criterion. An absolute offence in this area would be going rather too far. Therefore, I believe that some kind of intention is a reasonable constituent of a criminal offence.

Let us forget that Clause 1(2) hangs altogether loose at the moment and take what the noble Earl proposes. The result is that it does not matter whether the defendant ought to appreciate that his conduct will cause alarm or distress--it does not matter whether or not he appreciates that. If it has not been consented to, that is sufficient. The amendment may be intended to restrict or make the ambit clearer, but the result is to create a wider class of offence than is sought by the Bill. I am not sure whether that is the noble Earl's intention.

If anything about intention is taken away, one has an absolute offence type of category and that enlarges the offence. The matter of consent would just play into that situation. Therefore, with the greatest respect, after having considered the matter as carefully as I could--I was attracted to the idea at Second Reading that it might be worth pursuing a little further--I have concluded that if there is to be a criminal offence, some form of intention is required. What is in the Bill is the best so far that we have been able to propose in that connection. It is quite reasonably precise and I believe it provides a basis for dealing with these matters. That applies to the other amendments of the same character also.

Lord Thomas of Gresford: The noble and learned Lord the Lord Chancellor said that intention is an aspect of Clause 1(1)(b) and subsection (2). But I should have thought that it ought to be read as an objective test. What a person ought to know amounts to harassment, defined as what another, reasonable person in possession of the same information would think amounted to harassment of the other, suggests not an intention on the part of the person who is guilty of the conduct complained of but a "reasonable man" test--an objective test--applied to what he ought to know. It seems to me that that intention is missing from that.

There is another point. The vulnerability of the person concerned is a matter of some importance. In a manslaughter charge, it makes no difference that you did not know that a person had an eggshell skull if you strike him one blow to the head and he drops dead. He happened to be a vulnerable person but it is still manslaughter. Although there was no intention to kill the person concerned, he had that kind of vulnerable personality.

Lord McIntosh of Haringey: It is not murder.

Lord Thomas of Gresford: It is not murder either, of course, because it lacks intention. When one is seeking to deal with a problem that arises from the

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vulnerability of the victim, one is not so much concerned with intention as with the conduct itself which causes distress, and so on. That conduct itself must be intentional but not that the person thinks or believes or knows that it is harassment that he is committing at the time.

The Lord Chancellor: The second point about the vulnerability of the victim is quite important. My view is that this clause, as drafted, and the Bill as drafted, do take account of particular qualities or characteristics or the vulnerability of the person stalked, the victim, if that is known to the person who is doing the stalking: the alleged offender. That is the point. If, for example, you know that the person being stalked has a particular susceptibility or vulnerability and take advantage of that, that is important in characterising the offence. The objective test applies to that in the sense that if the matter is put to the test of the reasonable person with the same knowledge--that is to say, for example, knowing that the victim has a particular vulnerability, that is the test to be applied. When I talk of intention, of course, in the language of this Bill I am talking of it on the basis of the objective intention as signified in Clause 1(2) where the reasonable man's test is put upon what you assume the person's intention was. So the vulnerability point is dealt with, if I might say so, rather well by Clause 1(2).

Earl Russell: I thank the noble and learned Lord for that reply. I am extremely interested in the points that he has made. It is, I hope, possible that further discussion might lead to progress on this matter. Like my noble friend Lord Thomas of Gresford, I have not been entirely clear on the role of intention in this Bill. Like the noble and learned Lord, I prefer to see a test of intention; I prefer to see a requirement for mens rea.

The way my mind was working, I was regarding the continued proceeding in the absence of consent--indeed, it would appear the wilful indifference to consent--as being evidence of an intention to harass.

I will say again to the noble Lord, Lord McIntosh, that I have no objection to the words "to harass". I just want to know how we shall be finding people to have done it. That is all I am concerned about.

If we can arrive at some form of words between us which would allow the intention to be made clear without this clumsy use of "ought to know", there might perhaps in the future be some hope of getting somewhere. Perhaps the noble and learned Lord has a comment he would like to make before I take a final decision. If not, I beg leave to withdraw the amendment, but in the hope that it is not forever.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

7.45 p.m.

Lord Meston moved Amendment No. 7:


Page 1, line 16, after ("pursued") insert ("solely").

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 8, 19 and 21 which are identical.

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These amendments seek to add the word "solely" to the defences in Clauses 1(3) and 4(3) so that they should now provide that the person who wishes to rely upon those defences must show that his course of conduct was pursued solely for the purpose of preventing or detecting crime or solely under any enactment or rule of law or to comply with a statutory condition or requirement.

I am concerned to remove any possibility of a loophole for those with mixed motives in their course of conduct or for those who may have lawful justification for what they do up to a point but then go too far. I am also concerned about those who may stalk or harass on the pretext of detecting crime. In an article recently in the Sunday Telegraph on 26th January of this year there was reference to one stalker who actually formed his own detective agency to create the illusion of legitimacy.

My noble friend Lord Thomas of Gresford spoke of the room for argument that this Bill, as presently drafted, provides. I hope that these amendments go some way to reducing the scope for argument by a defendant who is truly guilty of harassment. I therefore hope that the amendments add a useful emphasis to the wording of the Bill. I beg to move.

Lord McIntosh of Haringey: I am putting my head into the noose again because this is an amateur comment; but I have to say that I think that the noble Lord, Lord Meston, has a point. I can well imagine circumstances where there is a mixture of motives, there is a mixture of intentions and some part of the intentions and, indeed, the behaviour, could genuinely be described as being for the purpose of preventing or detecting crime; but a very substantial amount could be outside that definition. It would be a great shame if the Bill did not allow those mixed motive activities to be covered by the penalties and by the provisions of the Bill.

The Lord Chancellor: My understanding is that in order for the defence to operate, the defence would have to show that the course of conduct, so far as was objectionable, was pursued for the purpose of preventing or detecting crime.

I have seen the article to which the noble Lord referred. Indeed, I think there was a rather elaborate scheme developed, according to that, for the purpose of stalking people. But I would venture to suggest to the Committee that to insert the word "solely", as proposed, makes it very difficult to secure the defence at all because it puts an impediment on it which would require the defendant to prove that there was no other intention or purpose whatsoever. In a sensible way of looking at this, the court would have to consider the course of conduct in question and in so far as it amounts to harassment see whether that was for the purpose of preventing or detecting crime. If it had a dual purpose, in my submission, in so far as it was shown to amount to harassment as a result of that secondary purpose, this defence would not operate.

The ultimate test will be whether the conduct complained of was pursued for the purpose of preventing or detecting crime. For example, one could

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have someone in a particular place regularly because that was his or her beat assignment and yet there may be an element of choice or discretion in where they were at a particular time. If the result of that choice or discretion being exercised was to amount to harassment of someone, then the court would be astute to find, or certainly it would be open for the court to decide as a matter of practical reality, the reason for the conduct in question.


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