Stalking and Criminal Law

As of 25th November 2012 amendments have been made to the Protection from Harassment Act 1997 which makes stalking a specific offence. These amendments were made under the Protection of Freedoms Act 2012.  

There are now two sections that deal with stalking, 2A and 4A. Section 2A labels stalking as a criminal offence for the first time in English and Welsh Law. Section 4A deals with stalking that has caused fear of violence OR serious distress. Serious distress is behaviour that causes a “substantial adverse effect” on the victim’s day to day activity.  

Examples of the kind of behaviours that stalking can consist of are provided in the amendments and apply to 2A and 4A. The list includes; following, contacting, publishing material relating to the victim, monitoring, loitering, interfering with property and watching or spying. This list is NOT exhaustive.  

Stalking in Scotland is a specific offence under section 39 of the Criminal Justice and Licensing Act 2010. In Northern Ireland stalking is dealt with under the Protection from Harassment Order 1997.

See here for our update on the introduction of Stalking Protection Orders. 

Is there legal protection from stalking in England and Wales? 

As of 25th November 2012 amendments to the Protection from Harassment Act have been made that makes stalking a specific offence in England and Wales for the first time. The amendments were made under the Protection of Freedoms Act 2012. The amendments can only be used to deal with stalking incidents that occur after 25th November 2012; stalking prior to this will still be dealt with as ‘harassment’ under sections 2 and 4 of the Protection from Harassment Act. 

There are two new amendments; section 2A stalking and section 4A stalking. To prove a section 2A it needs to be shown that a perpetrator pursued a course of conduct which amounts to harassment and that the particular harassment can be described as stalking behaviour. Stalking is not legally defined, but the amendments include a list of example behaviours which are following, contacting/attempting to contact, publishing statements or material about the victim, monitoring the victim (including online), loitering in a public or private place, interfering with property, watching or spying. This is a non exhaustive list which means that behaviour which is not described above may also be seen as stalking. A course of conduct is 2 or more incidents. 

Section 4A is stalking involving fear of violence or serious alarm of distress. Again serious alarm and distress is not defined but can include behaviour which causes the victim to suffer emotional or psychological trauma or have to change the way they live their life. 

If at the trial of a 4A offence the jury find the offender not guilty, they may still be able to find the person guilty of an offence under 2A. 

Sections 2 and 4 of the Protection from Harassment Act can also still be used to prosecute harassment. Harassment is described in the Act as a course of conduct which (a) amounts to harassment of another and, (b) which they know or ought to know amounts to harassment of another. Sections 2 and 2A are summary only offences and there is a maximum prison sentence of 6 months. Sections 4 and 4A are either way offences with a maximum prison sentence of 5 years. 

Is there legal protection from stalking in Scotland? 

Yes. Prior to 2010 stalking behaviour was not recognised as a serious crime in Scotland and stalking was prosecuted as a form of harassment under the common law ‘Breach of the Peace’. Whilst historically flexible to cover a multitude of common garden offences, Breach of the Peace did not fully encompass, define or reflect the seriousness of stalking and victim impact held no place. 

In April 2010 the Justice Committee at Scottish Parliament cast a unanimous vote for proposed anti stalking legislation to be included into Scotland’s Criminal Justice System. Stalking is now on the agenda for the VAW National Training Strategy, the ‘Commission for Equality of Human Rights’ and all major government funded organisations. Supported by ACPOS and the Crown Office Procurator Fiscal Service, Police Scotland are to receive training on policing stalking crime and for the first time ever, a stalking DVD training tool has been produced to be delivered across Scotland to all Crown Office Procurator Fiscal Staff. 

The Criminal Justice and Licensing Act was passed on June 30th 2010 and came into affect on December 13th 2010. Section 39 of this Act makes stalking a criminal offence. You can read the legislation by clicking here. 

Is there legal protection from stalking in Northern Ireland? 

Yes. The Protection from Stalking (Northern Ireland) Act 2022 provides a new specific offence of stalking and the offence of threatening or abusive behaviour. To learn more about the legislation in Northern Ireland visit Legislation.gov.uk  and search under Protection from Stalking (NI) Act.

Stalking and Civil Law

The information below explains injunctions under the Protection from Harassment Act 1997.

If you sue the person stalking you under the Protection from Harassment Act 1997, you can obtain an injunction (i.e. an order from a court that the person stop doing the acts that amount to stalking or harassment) and damages for anxiety and any financial loss you have suffered.

If the stalker breaches the injunction (in other words, does something which the court has ordered him/her not to do), then they can be charged with either:

a)            A criminal offence — for which they can be arrested by the Police, prosecuted by the CPS and imprisoned by a criminal court for up to 5 years, or

b)            A contempt of court — for which you can apply to the civil court for them to be imprisoned for up to 2 years

You decide which of these routes to take.

The main advantage of using civil proceedings is that, unlike criminal proceedings (which are taken by the CPS), you are largely in control of the legal proceedings. But the major disadvantage is that, unlike criminal proceedings, you have to pay for civil proceedings, including court costs and the costs of any lawyer you instruct. If you win, you may be able to get most of your costs from the person who has stalked you (if they have the money). You may be eligible for Public Funding (what used to be called Legal Aid) but that is increasingly difficult to get - we advise you to contact a solicitor or your local Citizens Advice Bureau.