Stalking - a new offence or another form of harassment?

10 DECEMBER 2012

Three new offences were created on 25th November 2012, with immediate effect, by the implementation of ss.111 and 112 of the Protection of Freedoms Act 2012. The source of widespread media attention in recent years, stalking is now specifically prohibited by statute, by the insertion of ss.2A and 4A into the Protection from Harassment Act 1997. The three specific offences are as follows:

  • s.2A(1) “Stalking”;
  • s.4A(1)(b)(i) “Stalking involving fear of violence”; and
  • s.4A(1)(b)(ii) “Stalking involving serious alarm or distress”.

There is no definition of “stalking” within the amendments, however, the statutory provisions do assist with a non-exhaustive list of “examples of acts which, in particular circumstances, are ones associated with stalking”, to be found at the new s.2A(3) of the 1997 Act – these being:

(a) following a person;
(b) contacting, or attempting to contact, a person by any means;
(c) publishing any statement or other material –
(i) relating or purporting to relate to a person; or
(ii) purporting to originate from a person;
(d) monitoring the use by a person of the internet, email or any other form of electronic communication;
(e) loitering in any place (whether public or private);
(f) interfering with any property in the possession of a person; and
(g) watching or spying on a person.

It will be a factual decision for the court as to whether other acts or omissions amount to stalking, having considered the evidence and the context of the acts or omissions in a given case. However, if a particular act or omission is not included within the specific statutory examples, demonstrating that it amounts to “stalking” is likely to prove a difficulty given that the list covers fairly extensive behaviour that most would associate with stalking.

The statutory criteria that a court must consider and be satisfied of in relation to the s.2A offence, are contained within s.2A(2) and include the following:

(a) The defendant has pursued a course of conduct [s.2A(1)(a)];
(b) The course of conduct amounts to harassment of that person [s.2A(2)(a)];
(c) The defendant knew, or ought to know, that the course of conduct amounts to harassment [s.2A(2)(c)]; and
(d) The acts or omissions involved in the course of conduct are ones associated with stalking [s.2A(2)(b)].

For the purposes of these new offences a course of conduct has the same meaning as that in the definition of an offence of harassment, namely that it must involve conduct on at least two occasions (s.7(3)).

Practitioners will note that (a), (b) and (c) above are the elements of an offence of harassment, pursuant to s.2 of the statute. In relation to an offence of stalking the prosecution must also demonstrate (d).  Therefore proving a stalking offence is a more onerous task than in the case of a 'basic' harassment offence. It follows that if a court is satisfied that criteria (a), (b) and (c) are met, but not (d), a defendant could be convicted of an alternative offence of harassment, but not of stalking.

Practitioners will be aware of the statutory defences available under the Protection from Harassment Act 1997, pursuant to s.1(3). The newly inserted section 2A(6) indicates that “this section is without prejudice to the generality of section 2 [offence of harassment]– as such the said statutory defences extend to the s.2A offence, these being:

(a) that the course of conduct was pursued for the purpose of preventing or detecting crime,
(b) that the course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

It must be conceded that the statute is not clearly worded with respect to the direct applicability of these defences to s.2A.  However it is clear from the statutory definition of the new offence that in order to be guilty of it, a defendant must, in effect, be proved to have committed the offence of harassment under s.2 of the Act, with the course of conduct involving at least one element of stalking.  If a defendant therefore would be able to establish one of the above statutory defences to a s.2 offence, he cannot by definition have committed a stalking offence either.  Indeed, the newly-revised Crown Prosecution Service Guidance confirms this position. The statutory defences are however specified in the new provisions to expressly apply in relation to the newly-created s.4A offences (s.4A(4)).

The newly-created offence under s.4A(1)(b)(i) (stalking involving fear of violence) largely mimics the current offence under s.4 (putting people in fear of violence), however with the additional requirement that the course of conduct must also amount to stalking (s.4A(1)(a)).  The third stalking offence created, under s.4A(1)(b)(ii) stalking involving serious alarm or distress) does create an offence which extends the ambit of the Protection from Harassment Act 1997, as no like offence under s.4 previously existed.  For a person to be guilty of the new offence it must be demonstrated that:

(a) their course of conduct amounts to stalking (s.4A(1));
(b) that course of conduct causes [the complainant] serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities (s.4A(1)(b)(ii)); and
(c) the [offender] knows or ought to know that the course of conduct will cause [the complainant] such alarm or distress (s.4A(1)).

This type of offence has likely been created to deal with long-standing conduct which has taken place over a significant period of time with the use of threatening words and/or actions. With the additional requirements of “serious” alarm or distress and “substantial” adverse effect this places significant emphasis upon the psychological and emotional harm of the conduct upon a complainant. Unsurprisingly, “substantial adverse effect” and “usual day-to-day activities” are not defined by the statute and will therefore be wholly factual matters for the courts to decide upon, largely perhaps based upon a complainant’s evidence.  Home Office Guidance has been issued in relation to the new offences, which includes (at paragraph 24) a non-exhaustive list containing the following examples which may amount to a “substantial adverse effect on [a complainant's] usual day-to-day activities”:

(a) the victim changing their routes to work, work patterns, or employment; 
(b) the victim arranging for friends or family to pick up children from school (to avoid contact with the stalker); 
(c) the victim putting in place additional security measures in their home; 
(d) the victim moving home; 
(e) physical or mental ill-health; 
(f) the deterioration in the victim's performance at work due to stress; and
(g) the victim stopping or changing the way they socialise.

There are also racially and religiously aggravated versions of these new offences under Part 11 of Schedule 9 of the Protection of Freedoms Act 2012 which amends s.32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment).

A person convicted of a s.2A offence is liable on summary conviction to a term of imprisonment not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both (s.2A(4)). The two offences under s.4A, which are both ‘either way’ offences, attract on summary conviction a term of imprisonment not exceeding six months, or a fine not exceeding the statutory maximum, or both (s.4A(5)(b)) and on indictment a term of imprisonment not exceeding five years, or a fine, or both (s.4A(5)(a)). The racially and religiously aggravated versions of the offences attract maximum sentences of six months’ imprisonment for both s.2A and s.4A offences on summary conviction, and two years and seven years respectively on indictment. At the time of writing, the Sentencing Council has not yet published any sentencing guidelines in respect of these offences.

Furthermore, the amendments indicate that if on the trial on indictment of a person charged with an offence under s.4A a jury find a person not guilty, they may find the person guilty of an offence under s.2A or 2 (s.4A (7)).


Given that an offence of harassment and an offence of stalking are likely to be founded upon the same factual basis, namely that the behaviour associated with a course of conduct for the purposes of harassment would arguably be analogous to acts or omissions for the purposes of stalking, one may ask why the prosecution would seek to proceed with a stalking charge when a harassment charge would be easier to prove? It would seem unlikely in most cases that a court would find criteria (a), (b) and (c) met but not (d), for a s.2A offence. Additionally, given that the maximum sentence for a s.2A and 2 offence are identical (6 months) this may further beg that question of why the additional offence of stalking is needed?

It is arguable that the new s.4A(b)(ii) offence is the only offence which in fact extends the law and provides additional protection for victims of conduct which causes them serious alarm or distress, as opposed to putting them in fear of violence. However, it is also conceivable that an aggravated form of harassment could simply have been created such as harassment involving serious alarm or distress. It would appear that a combination of increasing public awareness of new forms of stalking (particularly in the electronic world) and governmental pressure has likely resulted in the creation of these new offences.

Time will of course tell as to how many prosecutions for these new stalking offences are to be brought and to what extent the number of harassment prosecutions will decrease. These new statutory amendments will no doubt also raise difficult charging decisions for prosecutors in due course when faced with a complainant’s witness statement – whether to charge harassment or stalking (or both in the alternative), and which of the various forms of the multiple offences now available is the most appropriate to the facts alleged against a defendant.


Rhys Davies