Hansard

Amendment 402 is intended to create a statutory offence of stalking. It would make it an offence for a person to engage in a course of conduct with the intention of causing physical or psychological harm to another person or of causing that person to fear for their own safety or for the safety of any other person. An offence would also be committed if the accused engaged in a course of conduct and knew, or ought in all the circumstances to have known, that the conduct would be likely to cause such harm or arouse such apprehension or fear, regardless of whether that was the accused’s purpose.We are aware that, in the light of the outcome of recent court cases, there has been concern that the common-law offence of breach of the peace, which—as Rhoda Grant correctly said—has previously been used to prosecute behaviour constituting stalking, may not be sufficient. In the case of Harris v HM Advocate, the appeal court concluded that some public element is essential for a breach of the peace to be committed and that the public element will not always be present in stalking cases. To address that, the Government has lodged amendment 378, which creates a new statutory offence of engaging in threatening, alarming or distressing behaviour. The offence will criminalise conduct that, either recklessly or by intention, is likely to cause a reasonable person alarm, distress or fear for their personal safety or for the personal safety of another person. That would include the sort of behaviour that is covered by amendment 402.The need to create such an offence has arisen as a result of the appeal court’s opinion in Harris v HM Advocate, which concluded that some public element is essential for the offence of breach of the peace to be committed. The court’s decision does not affect the majority of cases of breach of the peace, in which the offence takes place in a public place—for example, in a street or in a pub. However, there is real concern that the decision has been making it more difficult to prosecute criminal behaviour arising from domestic disputes and other circumstances, such as stalking cases, in which there is not necessarily a public element. In the past, such behaviour could have been successfully prosecuted as breach of the peace, but that may no longer be the case.10:15 Amendment 378 creates a new offence that criminalises conduct that, either recklessly or by intention, is likely to cause a reasonable person alarm or distress or create fear for their personal safety or that of another person. There is no requirement for a public element so the problem that arose in the Harris case should not arise again. The conduct could take place in the presence of the perpetrator and the victim only, or indeed without their being together, in the case of written threats, phone calls and so on. That is particularly relevant where threats are sent by text or e-mail—a relatively recent problem about which we have all heard.Stalking can include a range of alarming, distressing and frightening behaviours, such as repeatedly following or spying on a victim or otherwise watching them; the repeated sending of unwanted threatening correspondence; and the making of repeated nuisance phone calls or the sending of repeated nuisance texts or e-mails. When a person engages in such activity and the circumstances are such that their behaviour would cause a reasonable person alarm or distress or create fear for the safety of any person, that will constitute the offence of engaging in threatening, alarming or distressing behaviour.Although we support what amendment 402 seeks to achieve, we do not believe that it goes far enough. The offence in amendment 402 requires “a course of conduct”, whereas we suggest that it is important that, in appropriate cases, it is possible to prosecute an individual who engages in such unacceptable behaviour once. It does not address the problem that arises from the Harris case, which means that it might no longer be possible to prosecute unacceptable behaviour that is committed in a domestic setting and which would have been prosecuted as a breach of the peace if it had been committed in public. It would also be necessary to prove that the behaviour caused harm to, or created fear for the safety of, the victim or someone else. We suggest that such behaviour is unacceptable and that it should therefore be treated as criminal regardless of whether the victim actually suffers harm or fear. It should be enough that that was the intention. Those issues are addressed in the Government’s amendment 378, which also covers the behaviour that is caught by amendment 402. I therefore hope that the committee will support the Government’s amendment 378 in preference to amendment 402.We understand that some of those who have given evidence expressed support for both amendment 378 and amendment 402. However, as we have explained, amendment 402, on stalking, covers a narrower range of conduct than is covered by amendment 378. The Crown Office has expressed concern that there would be a disadvantage in having a narrowly defined offence alongside an offence with a wider definition. Because of the many circumstances that present themselves in criminal conduct, the prosecutor would, in the event of a choice, often be bound to prefer the offence with a wider definition to ensure that all the conduct was captured in the charge. We understand the desire of many committee members to see both amendments go through and we are happy to seek to consider whether we can incorporate the particular matters that Rhoda Grant’s amendment 402 seeks to cover into an expanded Government amendment in due course.We understand that amendment 402A seeks to ensure that Rhoda Grant’s amendment 402 does not inadvertently criminalise legitimate public protest or industrial action. However, the Government’s view is that, even if amendment 402 was accepted, amendment 402A would be unnecessary. For an offence of stalking to be committed, it is required that the accused acted with the intention of causing physical or psychological harm or knew, or ought to have known, that their conduct was likely to cause such harm or arouse fear or apprehension. Legitimate public protest and industrial action should not cause people physical or psychological harm and should not cause people to fear for their personal safety.In addition, amendment 402 provides a defence to a charge of stalking where the conduct is, in the particular circumstances, reasonable. It would be for the courts to decide, but it could certainly be argued that, depending on the circumstances, legitimate public protest or industrial action would be covered by the defence that it amounted to reasonable conduct. As such, amendment 402A is unnecessary and I invite Robert Brown to not move it.The purpose of Robert Brown’s amendment 544 is to modify the common-law offence of breach of the peace to ensure that it covers behaviour that takes place in private. As I noted, the need for action on breach of the peace arose as a result of the appeal court’s opinion in Harris v HMA, which concluded that some public element is essential for the offence of breach of the peace to have been committed. We appreciate that there is concern that the appeal court judgment makes it difficult for the criminal law to intervene in domestic disputes and other circumstances in which breach of the peace has traditionally been used to prosecute, such as stalking cases, when there is not necessarily a public element. That is why we lodged amendment 378, which creates a new offence that criminalises conduct that, either recklessly or by intention, is likely to cause a reasonable person alarm or distress or cause them to fear for their personal safety or that of another person. There would be no requirement for a public element. The conduct could take place in the presence of the perpetrator and the victim only, or without them having to be together at the same time, in the case of written threats, texts, phone calls and so on, which I mentioned.The appeal court judgment, which concluded that a public element was necessary in cases of breach of the peace, overturned a 1959 judgment in the case of Young v Heatly, in which the appeal court recognised that although a public element was usually required in cases of breach of the peace, there was a class of special cases in which the offence constituted a breach of the peace, even though it occurred in private. It may have been Robert Brown’s intention to restore the outcome of the 1959 judgment, but amendment 544 goes a great deal further in providing that any behaviour that constitutes a breach of the peace in public may also do so in private.The advantage of Government amendment 378 over Robert Brown’s amendment 544 is that it recognises that behaviour in public and behaviour in private may be judged differently. For example, a member of the public who was shouting and swearing in the street would normally be judged differently from a member of the public who was shouting and swearing at a television. Government amendment 378 provides for incidents such as domestic abuse or stalking to be tackled, but it does not seek potentially to criminalise behaviour in private simply because the same behaviour in public might well constitute a breach of the peace. Therefore, we are unable to support amendment 544.I understand that amendments 399 to 401 are intended to amend the provisions in section 234A of the Criminal Procedure (Scotland) Act 1995 on non-harassment orders to require the prosecutor to apply to the court for a non-harassment order to be granted in respect of a person who has been convicted of stalking. I agree that in many cases it would be appropriate to make a non-harassment order in respect of a person who has been convicted of behaviour that constituted stalking, and the provisions in the bill that amend section 234A of the 1995 act will make it easier for the prosecutor to apply to the courts for an order.However, the Government does not believe that there should be an automatic requirement for the prosecutor to apply for a non-harassment order in respect of any person who has been convicted of stalking. Non-harassment orders are intended to deal with people who are considered to pose a risk of future offending. Many people who are convicted of stalking behaviour may pose a risk of future offending against their victim, but others may not. The offender may have moved away from where the victim lives or may have been sentenced to a long term of imprisonment, in which case an NHO may not be necessary. Clearly, whether an NHO is necessary will depend on the facts and circumstances of each individual case. It should be for prosecutors to decide on a case-by-case basis whether it is appropriate to apply to the court for a non-harassment order to be granted.We support amendment 378 and resist all other amendments in the group, on the understanding that we take on board the committee’s desire to see some correlation between the two offences that we are discussing.