The best thing to mark National Stalking Awareness Week would be to scrap the law on stalking

One of the many, varied joys of practising crime is the privilege of seeing first hand, each and every day, how absolutely useless the criminal law can be.

This week – 18 to 24 April – heralds National Stalking Awareness Week, and presents an unmissable opportunity for me to mount my high hobby horse-shaped soap box to rail against one such example: section 2A of the Protection from Harassment Act 1997, as inserted by section 111(1) of the Protection of Freedoms Act 2012. Commonly known as the law against stalking, but hitherto, for reasons that may or may not become clear, I shall refer to as the law against roughhousing beefeaters.

This particular legislative gem may well come under heightened appraisal this week after Lily Allen gave a disturbing interview to the Observer, detailing her suffering at the hands of a stalker who progressed from setting up a Twitter handle (“@lilyallenRIP”) to breaking into her bedroom intending to stab her in the face. Her assailant was, it appears, ultimately convicted of burglary and harassment, and is awaiting sentence. The account is upsetting in the extreme, not only for the plain terror of the 7-year ordeal, but for the reported attitude of the police, who, according to Ms Allen, treated her “like a nuisance, not like a victim” when she complained.

This dovetails neatly with a report released by the Suzy Lamplugh Trust, entitled “Out of Sight, Out of Mind: An Investigation into the Response to Stalking“, which considers the effectiveness of the law against roughhousing beefeaters, and concludes that we have a problem. In short, many victims are afraid to make complaints, too few police officers are properly trained in spotting and addressing cases of stalking, there are insufficient specialist victims’ services, and there are too few prosecutions brought for stalking.

I can’t help with why Lily Allen had the experience that she did upon reporting what amounted on any definition to serious criminal conduct. I can’t help with the first three conclusions of the Suzy Lamplugh report. But I can venture a suggestion as to why, according to the report, only 1% of stalking offences are prosecuted as such:

It’s because the law on stalking is utterly pointless.

Since 1997, harassment, as defined by section 1(1) of the Protection from Harassment Act 1997, has been a criminal offence. Section 2 of the Act provides that, if you commit harassment, you are liable to a maximum sentence of 6 months’ imprisonment. What is harassment, you ask? Quite simply, pursuing a course of conduct (i.e. doing something on more than one occasion) which amounts to harassment of another and which the defendant knows, or ought to know, amounts to harassment. Somewhat circular, you may feel, to provide that harassment is pursuing a course of conduct that amounts to harassment, but there you have it. If you want a little more help, section 7(2) states that harassment includes “alarming or causing a person distress”, but the definition appears to be deliberately broadly drafted so as to catch most unwanted repeat behaviours. Including, one might think, stalking. And indeed, from 1997 to 2012, offences by wacko ex-partners or obsessive fans or random creeps were prosecuted as harassment.

Then, in 2012, the coalition government, in a fit of virtue signalling, announced a bold plan to offer extra protection to victims of stalking, following a rash of reported cases where obsessive nutjobs had slipped through the net. Hence, via the 2012 Act, section 2A was shoved into the Protection from Harassment Act, creating a shiny new offence of stalking.

What is stalking, you ask? Well here’s the clever bit. Stalking is…”a course of conduct which amounts to harassment…and [where] the acts or omissions involved are ones associated with stalking“. To inject some colour into the dull circularity of the definition, section 2A(3) provides “examples of acts or omissions associated with stalking”. In other words, you need to prove that the defendant is guilty of both harassment and stalking, in order to convict them of stalking. Therefore, proving stalking is by definition harder for the prosecution than simply proving harassment.

And what do you get if you opt for the harder road? What prize awaits the victorious prosecutor who has slogged her way through the additional evidential burden thrust upon her by section 2A? The answer is….nothing. Or at least, nothing more than if you successfully prosecuted for harassment. The maximum sentence in each case is 6 months’ imprisonment.

It is the very definition of empty gesture legislating. Section 2A is so very pointlessly pointless that I want urgently to go back in time to the day when then-crime prevention minister Jeremy Browne was hubristically prattling on about what a difference this law is going to make and shove a whoopee pie right up his schnoz. Section 2A does nothing other than create a new offence that is harder to prove than an existing offence that prohibits the same conduct, solely, it seems, to allow for the drawing of an entirely semantic distinction between “harassment” and “stalking”.

It is akin to the government, upon being told of a spate of roughhousing by beefeaters, creating a new offence of “roughhousing by a beefeater”, which carries the exact same punishment as “roughhousing” but requires the prosecution to prove not only that roughhousing took place, but that the offender was a practising, certified beefeater. (Without, of course, providing a comprehensive definition of “beefeater”. Or, come to think of it, roughhousing.) Now if public money was to be spent on prosecuting the offence that’s harder to prove, you would want something to show for the extra effort required to get the conviction past the post. Either a higher maximum sentence, or an alternative weapon in the Judge’s armoury at sentencing, or some special publicly-accessible register of roughhousing beefeaters so you’d know which ones to avoid.

But leap over more hurdles to secure a conviction that is in essence the same offence for no benefit? No-one in their right minds would do this. And it’s here that I disagree with the conclusions of the report above. If prosecutions for stalking under section 2A are indeed few and far between (and actually, it appears that the numbers are growing), it strikes me as plausible that the prosecuting authorities are doing the sensible thing, and diverting “stalking” complaints into prosecutions for harassment, improving the chances of obtaining a conviction and the resultant protections (such as a restraining order) that the court can offer.

Until Parliament introduces a tangible benefit to prosecuting under section 2A – such as an increased maximum sentence; or a revised definition of stalking so that it catches behaviour not currently caught by harassment; or automatic inclusion on the “stalkers’ register” that is pushed for by the Suzy Lamplugh report – it will remain a criminal offence in search of a purpose. And if there are no plans to so inject meaning into section 2A, then Parliament should admit its complicity in meaningless virtue-signalling, apologise to those it has cruelly misled, and dutifully remove section 2A from the statute books.

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UPDATE: On 19 April 2016, Newsnight ran a segment on stalking laws, including an interview with (a very impressive) Lily Allen and comment from Sophie Walker, the Women’s Party candidate for London Mayor, and Assistant Chief Constable Garry Shewan, the National Police Lead for stalking and harassment. The primary focus of the discussion was the perceived lack of prosecutions for stalking, with the “1%” figure (on which, see the excellent comment below) waved about as a starting point.

It was regrettable that ACC Shewan, the police’s lead expert in the field, did not himself appear to appreciate the distinction between harassment and stalking, asserting incorrectly that stalking carries a greater punishment than harassment. This, as above, is simply wrong.

He also missed, I felt, a golden opportunity as an expert to illuminate the public, and pressure groups, on how pointless section 2A stalking is, and why so few offences might be being charged under it.

Due to the plain lack of understanding by even the police’s top stalking/harassment bods, and by way of further public education, I feel obliged to explain in a little further detail how the laws operate:

Both harassment (section 2 of the Protection from Harassment Act 1997) and stalking (section 2A) carry a maximum sentence of 6 months’ imprisonment, as dealt with above. There is also an “aggravated” offence corresponding to each – an offence of “harassment causing fear of violence” (section 4) and “stalking causing fear of violence or serious alarm/distress” (section 4A). Each of these offences carries a maximum sentence of 5 years’ imprisonment. The reason that section 4A escapes my censure is that, unlike section 2A, it covers something that its corresponding harassment law does not; namely, it provides for a greater sentence where the offence causes “serious alarm or distress which has a substantial impact on [the victim’s] day-to-day activities” (whereas “aggravated harassment” only kicks in where the victim is put in “fear of violence”). Although, frankly, there is no good reason why “serious alarm or distress” could not have simply been incorporated into section 4 as another route to proving aggravated harassment, but there you have it. There is at least a purpose to aggravated stalking, unlike the entirely pointless offence of “simple” stalking.

On a final note, Ms Allen was distressed that the prosecution were only initially minded to charge with burglary, and only added a charge of harassment (and not stalking) upon further enquiry by her. Not knowing enough about the evidence, it is impossible to say why this was so, but it may be related to the sentencing powers of the court. The maximum sentence for burglary of a dwelling is 14 years’ imprisonment, almost three times the maximum for even the most serious type of stalking or harassment. That said, it seems, given what little is known about the facts, that at the very least a harassment should have been charged to mark the defendant’s record.

***As of 6 January 2017, the maximum sentence for an offence of harassment causing fear of violence (section 4) and stalking causing fear of violence or serious alarm/distress (section 4A) is doubled from 5 years’ imprisonment to 10 years’ imprisonment (by virtue of s.175 of the Policing and Crime Act 2007)***