Protection of Freedoms Bill

Debate between Baroness Royall of Blaisdon and Baroness Brinton

Tuesday 24th April 2012 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, today we are almost there: a new law on stalking, for which Parliament rather than Government has been in the driving seat. Over the past six months, a staggering amount of progress has been made, much of it due to the advocacy of noble Lords on all Benches. Like the Minister, I pay special tribute to the noble Baroness, Lady Brinton, and the noble Baroness, Lady Howe, along with my noble friends on these Benches. The progress is also testament to the campaigners, the excellent parliamentary inquiry, and most of all to the survivors and their families that we will soon achieve proper protection in law for the victims of stalking. I also pay tribute to those women who have shown extraordinary courage in the face of this harrowing crime: women like Claire Waxman, Tracey Morgan, Sam Taylor, Tricia Bernal and Claudia Miles, whose lives were stolen by their stalkers, but all of whom are utterly determined to make sure that future victims get the justice and protection that they deserve.

The Commons amendments that we are considering today are concessions that the Government made following serious concerns raised at Third Reading about their initial proposals. I thank the Minister and the Bill team for the work they have done. We support the amendments brought forward and warmly welcome them as far as they go. However, it is disappointing that the Government did not heed calls from experts to strengthen the proposals on police powers and to allow for cases prosecuted under the new Section 2A offence to be referred up to the Crown Court should new evidence emerge.

As the Minister said, government Amendments 51A to 51E add a new set of criteria to the more serious Section 4A stalking offence in order to ensure that those cases where a stalker never makes an explicit threat of violence towards their victim are still liable for the maximum penalty of five years’ imprisonment where their course of conduct has caused the victim to suffer sustained and serious distress or alarm which forces them significantly to change their day-to-day activities. However, the stalking charities Protection Against Stalking and the Network for Surviving Stalking, as well as criminal justice professionals such as the National Association of Probation Officers and senior criminal barristers, are all concerned about a small number of serious cases where victims refuse significantly to alter their daily routine in the face of the stalker’s actions but fear for their personal safety or that of another person close to them. The more serious Section 4A offence as currently drafted would not be sufficient to enable a successful prosecution.

Mary Porter, for example, started to receive offensive e-mails and texts from a colleague about five years ago. The behaviour soon escalated to criminal damage to her property and silent phone calls. Although she feared for her safety, no specific threat of violence was ever made. Mary took a conscious decision not to react to his behaviour by changing her routine or work patterns. However, the stalking took its toll. She developed muscular strain through stress, which affected her mobility. She also reported having great difficulty sleeping, having nightmares and being unable to get his behaviour out of her mind. Eventually she discovered the identity of the stalker. She kept records and a log of his behaviour, which she was able to present to the police, but after several months of sustained harassment, he was given a short custodial sentence which was suspended for 12 months. Why should someone like Mary, who refused to let her stalker affect her daily routine, not have the same right to protection?

My amendments would ensure that women like Mary, who have serious concerns about their personal safety as a result of their stalker’s actions—even if explicit threats of violence are not made—would be covered by the same protection under the Section 4A offence. The amendment also makes reference to the safety of another, as it is well known that stalkers can often target loved ones, particularly children, to get to their victims. Sally Evans separated two years ago from her abusive partner. He then commenced a campaign of threats and intimidation, including vandalism to her car on three occasions, as well as invading her website, sending offensive messages, texts and photographs to her employer and following her in the car. He used the family courts to obtain contact with the children and, fearing the consequences of his escalating activity, Sally decided to co-operate. She was frightened and worried about her personal safety and that of her children, but at this time there was still no overt threat of violence. The police told her that they were powerless to intervene unless he made a physical attack. It was only recently, when he threatened to kill her in front of one of the children, that the police finally acted.

In reference to my amendments, the charities Protection Against Stalking and the National Association of Probation Officers stated that:

“Following discussions with police, lawyers and others, PAS and NAPO support an amendment which would expand the definition beyond fear of violence to include causing a person to fear for their personal safety or the safety of another, for example a child or relative”.

Similar support has been pledged by the charity Network for Surviving Stalking, and Dr David James, consultant forensic psychiatrist at the National Stalking Clinic, has stated that:

“The proposed amendment to the Bill regarding the specification of fear for personal safety or that of another as a parameter is very important, given the psychological damage that stalkers inflict and seek to inflict. The amendment would substantially strengthen the legislation and we would encourage peers to adopt it”.

My amendments do not make significant textual changes, but they are changes that would make a significant difference to the lives of victims in a small number of serious cases like those of Sally Evans and Mary Porter. We are tantalisingly close to achieving our new law on stalking. However, we must make sure that when it reaches the statute book, we end up with the best possible version. No doubt the Government will argue that at this stage it is too late to bring forward further changes and the Minister said that he thought that all cases would be reasonably covered by the amendments being proposed by the Government today. However, I believe that while we have the opportunity to ensure that victims like Sally Evans and Mary Porter could be properly covered by legislation, we have a duty to ensure that they are served by the most comprehensive law possible. I would therefore urge noble Lords to think of those two women in our debate and to support my amendments. I beg to move.

[Baroness Brinton]

My Lords, last Wednesday was the second annual National Stalking Awareness Day and two events were held simultaneously here and in the Scottish Parliament. They differed radically from the event held one year before because all those present in London were able to celebrate the introduction of this Bill, promoted on a cross-party basis in both Houses of this Parliament. One year ago, the people’s inquiry into stalking was just being created. It was ably chaired by Elfyn Llwyd MP and supported in every possible way by the National Association of Probation Officers and Protection Against Stalking, which had come together in their absolute determination to persuade Parliament that we needed legislation that recognised the scourge of stalking. It needs naming, appropriate sentencing, support for victims and, importantly, treatment for perpetrators. Some members of that inquiry were sceptical about the need for change but the evidence bravely given by the victims, survivors, families of murdered victims, police and others in the criminal justice system made it undeniably evident that change was needed.

Last month the Home Secretary, speaking in the Commons debate, confirmed the need for change. Turning to the amendments before us now, she made it much clearer and plainer that the behaviour of those in the criminal justice system had to change, too, to recognise the seriousness of the case, even if it could not be specifically identified in every exemplar. She specifically said:

“Those amendments will widen the section 4A offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life. This change will mean that when a stalker causes their victim, for example, to take alternative routes to and from work, when the victim is afraid to leave the house or when they have to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, this could count as behaviour that attracts the more serious section 4A offence and therefore, on conviction on indictment, a maximum five-year sentence. The message could not be clearer—anyone who ruins someone’s life with their stalking should expect to be severely punished”.

The Secretary of State went on to say that legislation will be kept,

“under review. The last thing we want to do is to find that the legislation is being misinterpreted”.

She had set out examples,

“to send a message to people that that is all they are”.—[Official Report, Commons, 19/3/12; col. 546-47.]

Some of the examples to do with changing the culture are absolutely vital within the system. Frankly, that change should start with the renaming of the department in the Home Office that deals with stalking. It is currently called—I am not making this up—“Death and Violence”. One small but significant change such as this will signal a key change in how the Government, the Civil Service and the criminal justice system are starting to treat stalking. This is about human beings and how they are treated.

I give one illustration from the courts today. The result of Elliot Fogel’s case was due to be heard this morning—the latest chapter in his stalking of Claire Waxman over the past 20 years. He was imprisoned for two years in January for breaching a lifetime restraining order; this was after a 16-week sentence for the original stalking offence two years ago. He wanted his sentence reduced. Shockingly, the case was adjourned from this morning to this afternoon because the CPS had again forgotten its evidence and files on his repeated breaching of previous restraining orders. A further problem was that the CPS had consistently not prosecuted breaches of restraining orders, so the court was able to look only at three out of the many that had been taken to court. This presents a very different picture for the judges but it is one that they were forced to use. I am pleased to say that the court finally made its decision this afternoon and Fogel’s sentence remains.

Protection of Freedoms Bill

Debate between Baroness Royall of Blaisdon and Baroness Brinton

Monday 6th February 2012 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, in moving Amendment 49A, I wish also to speak to Amendments 49B and 49C, and to do so with humility and determination. I speak with humility because since our useful, and in many ways moving, debate in Committee, when we heard the courageous testament of the noble Baroness, Lady Brinton, I, like other noble Lords, have had the opportunity to learn more about stalking and to meet other victims. These are extraordinary people—usually women—who live in fear for themselves and their children, and who have been completely and utterly failed by the criminal justice system at all levels. I speak with determination because with this Bill we have an opportunity both to introduce a specific offence of stalking in England and Wales and to change the culture of our criminal justice system from top to bottom by requiring, among other things, mandatory training, risk assessment for victims, psychiatric assessment and treatment for perpetrators and a victims’ advocacy scheme. Naturally, such changes would have to be accompanied by an awareness campaign to ensure that the issue was taken seriously.

In a time of unprecedented cuts, women’s safety must be a priority. Only today, the Daily Mail reported that half a million street lights are being switched off by local authorities forced to find savings, meaning that women working shifts or returning late from an evening out will be forced to walk the streets in darkness. Similarly, cuts to backroom police services will inevitably hit specialised units such as those concerned with domestic violence. This amendment is an opportunity to provide real protection for victims of stalking and serious sustained harassment, 80 per cent of whom are women.

As we heard in Committee, lives are destroyed by devious manipulators. Sometimes lives are tragically ended by this murder in slow motion. We are not talking of a small number of people; nearly one in five women over the age of 16 has been a victim of stalking. The number of lives affected is staggering, yet we know that stalking is grossly underreported. Of the estimated 120,000 cases of stalking each year, just 53,000 are recorded as crimes by the police and only one in 50 leads to an offender being jailed. The overwhelming majority of sentences are for less than 12 months and some are for a matter of days. Where restraining orders are given, they are constantly breached and the victims live in constant fear.

By recognising stalking as a specific offence in law, as it has been in Scotland, we would ensure that the courts looked at an entire course of conduct when it comes to stalking rather than just one specific incident of harassment, as currently happens in so many cases. It is estimated that victims tend not to report stalking until around the 100th incident—yes, the 100th—because it often begins with individually minor incidents, such as nuisance phone calls, and it is invariably only when the perpetrator’s actions finally escalate to serious and violent offences, sometimes after many years of sustained terror, that the police will step in.

Two weeks ago after eight years of sustained suffering, Claire Waxman’s stalker was finally jailed for 16 weeks for a second breach of his restraining order, after being given a suspended sentence and ordered to pay compensation. The introduction of a specific offence will train the police and the courts to focus on the pattern of behaviour reported and enable early intervention to protect women like Claire—and indeed men—whose lives are stolen from them by their stalkers. The change in Scottish law, which this amendment was modelled on, has led to an increase from an average of seven prosecutions for stalking a year to 140 prosecutions in the first four months in Strathclyde alone. Last year, only 565 offenders found guilty of serious harassment received a custodial sentence, the vast majority of which were for less than 12 months, and many for just days. The increase from six months to a five-year maximum custodial sentence that the amendment would make would enable these cases to be heard in a Crown Court and ensure adequate protection for victims.

Thanks to charities such as Protection against Stalking and the Network for Surviving Stalking, and the work of Laura Richards and Harry Fletcher, there is now a vast body of evidence about stalking, its impact and the gaps in data, legal provision, training, awareness, assessment and treatment for offenders. More people are beginning to understand the need for murder prevention. This week will see more evidence with the publication of the report by the independent people’s inquiry into stalking—an inquiry that has given a voice to victims who have suffered too long in silence and at the hands of the criminal justice system. I pay tribute to all members of the All-Party Parliamentary Group, and especially to Elfyn Llwyd MP, its chairman, for their tremendous work. Many of its members are from this House, from all Benches. I have not yet seen the report but I know that it will recommend a draft Bill on stalking.

From detailed conversations that I have had I am confident that the most important elements of this Bill are covered in my amendments. Amendments 49B and 49C would place a duty on the Secretary of State to introduce such a regulation as is necessary to effect the comprehensive reform to training, victim support, risk assessment and other such measures that the people’s inquiry is calling for. Some of these measures can be done through regulation and secondary legislation. Others no doubt will need primary legislation, but by tabling these amendments—one of which lists the measures to be included in any further regulation, and the other a less prescriptive duty on the Secretary of State—the opportunity is here for the Government to furnish the Bill with further measures at a later stage.

As noble Lords will know, the Government have undertaken a consultation on stalking, which ended yesterday, and I have no doubt that it will conclude that the actions that I am proposing here today are necessary. Indeed, the Prime Minister himself has said that there is a gap to be filled, and both the Home Secretary and Lynne Featherstone are understood to be sympathetic. When the Minister responded to the amendment that I moved in Committee, he suggested that while there might be a case for strengthening the law on stalking to raise its profile, he felt that the Protection from Harassment Act was adequate to cover this criminal behaviour. Indeed, speaking of the new offence, he said:

“We do not consider that to be proportionate where the conduct does not cause a person to fear that violence would be used against them on each occasion”.—[Official Report, Commons, 6/12/11; col. 661.]

I hope that as a result of the many briefings and representations that the noble Lord must have received, he will now change his mind. In our debate on 6 December, the noble Baroness, Lady Brinton, said that we should not accept any amendment on that occasion because we had to get it right but that we should do it early next year. That time has come. This Bill provides us with a huge opportunity to change the law, to change the culture of the criminal justice system, to diminish the fear of victims and provide them with support and assess, and to treat the perpetrators. If we wait for a new Bill, I fear that the best could be the enemy of the good. The victims of this insidious crime need these changes to be made now. They are suffering day after day and they do not have the luxury of time to debate.

Perhaps the noble Lord will again say that we should wait until the results of consultation have been considered before deciding whether to accept my amendments. I respectfully suggest that the Government should accept my amendments, which I believe to be comprehensive but also provide them with an opportunity to furnish the Bill with further measures that may be suggested by the results of their consultation if there continue to be gaps. I understand that Third Reading will not be until March, so there would be adequate time for further amendment if necessary. I beg to move.

[Baroness Brinton]

My Lords, I rise to speak to all three amendments in the group. Stalking is a heinous crime that currently goes much unrecognised, except for the few exceptional cases that hit the tabloid headlines. The headlines are not exceptional because of the stalking, the behaviour of the perpetrators or the suffering of victims, but usually because of the murder of the victim or, finally, the conviction of a perpetrator after many years of stalking.

I spoke in Committee about my personal experience. It was interesting that following that a number of noble Lords spoke to me privately to say that they had also experienced stalking—some from many years ago. It was evident that it was as vivid to them as my account to your Lordships’ House. My perpetrator was convicted more than three years ago. I think that many of us take many years to recover from the impact of the offence.

I thank the Minister for the discussions that I have had with him in the past few days. I hope that he will be able to reassure the House about some of the points raised by the noble Baroness, Lady Royall of Blaisdon. The harassment legislation was put in place by the previous Government, who decided that stalking could be included within the broader scope of harassment. However, the breadth of the definition means that a stalker, who may have hundreds of incidents on his record, is conflated with a neighbourhood dispute over hedges. As a result, sentencing for stalking is limited to a handful of months, whereas the whole nature of stalking is, as stated by one of the victims giving evidence to the inquiry, “a rape of the mind”. It also curtails the victim’s life as they cannot take up a normal life again while the perpetrator is able to attempt to continue to control their lives.

Amendment 49A broadly copies the Scottish legislation, and rightly proposes an offence of stalking. It outlines the increased penalty for being convicted of the offence. It does not, however, as I outlined in my speech in Committee, tackle the core and underlying problem of training for everyone involved in the criminal justice system. Stalkers are usually bright, manipulative and obsessed with their victim. Many convicted of stalking behaviour have been assessed by psychiatrists as suffering from personality disorders. They are frequently charming and able to convince professionals, neighbours and even, as in my case, random members of the public that they are hard done by and misunderstood, and it is all the victim’s fault for taking things a bit too seriously.

Amendment 49B attempts to put some flesh on the items that the Scottish legislation fails to mention, but from discussions with the noble Baroness, Lady Royall, there is some detail here. However, I fear that it is incomplete, and it would benefit from the detail of the inquiry’s report and probably from the responses to the Government’s own consultation on stalking, which has just closed. Let me give two illustrations. The first is the general principle behind both this amendment and Amendment 49C that all the other details are settled in regulation. This is very worrying. Proposed subsection (1)(a) refers to how to,

“prevent and treat stalking behaviour”.

This would involve a sea change in the approach to this type of crime, and I believe requires more than a passing reference to regulations. It has not been common in our criminal justice system to insist that perpetrators have treatment, and it is right that both this House and another place would want to have the chance to discuss this in some detail. Do not get me wrong; I believe that it is absolutely right that perpetrators have treatment. My issue is about the time left in Parliament to discuss that matter, which is an important change in the way in which our legislation operates at present.

It is important also because perpetrators must have a real chance to begin to understand and change their behaviour. This happened in my case; my perpetrator voluntarily agreed to have treatment, and it gave both me and the others affected confidence that he would finally stop. Too often, prison or restraining orders have not sufficed, and as soon as the perpetrator is back in society, or without constraint if the restraining order is lifted, the behaviour starts again. Insisting on treatment for perpetrators is a matter of freedoms and liberties. We need to have an open debate about the legislation, and I am afraid therefore that the amendment needs to be more specific.