Stalking Protection Bill

Lord Low of Dalston Excerpts

2nd reading (Hansard): House of Lords
Friday 18th January 2019 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I crave your Lordships’ indulgence to speak briefly in the gap; I will take a slightly different tack from that which has been taken up to now.

I make it absolutely clear at the outset that stalking is unquestionably a kind of behaviour against which it is entirely appropriate—indeed, necessary—to legislate. I would not want the noble Baroness, Lady Bertin, to think that I do not regard her Bill and the case she has made for it with the utmost seriousness. But anti-stalking legislation can be abused, and it has been the subject of criticism. It has even been suggested that it might in some respects run counter to the European Convention on Human Rights. Questions have been raised about the appropriateness of a maximum sentence of five years’ imprisonment for offences that can be committed through mere negligence. Some magistrates have felt that criminalising harassment might lead to unfounded accusations from complainants who are mistaken about another’s behaviour or are even being vindictive. Prosecutors agree that it is necessary to be alive to the possibility that the putative victim may be reading more into another’s conduct than is warranted. I have had experience of this myself, when someone overreacted—to put it at its lowest—or, more likely, used stalking legislation with the willing complicity of an unscrupulous firm of solicitors, to ventilate a grudge.

When drafting legislation in this area, we need to be careful not to collude in such behaviour. As an example of what I mean in relation to the present Bill, I am particularly concerned about Clause 1(4)(b), which states that a risk associated with stalking,

“may arise from acts which the defendant knows or ought to know are unwelcome to the other person even if”—

I emphasise—

“in other circumstances, the acts would appear harmless in themselves”.

This weights the scales too much in favour of the complainant as against the defendant. It is not enough for the complainant to allege that the defendant knew or ought to have known that the acts complained of were unwelcome. There ought to be a test of reasonableness. The complainant should have to show not just that the defendant knew or ought to have known that the acts complained of were unwelcome but that they knew or ought reasonably to have known that they were unwelcome, and it was reasonable for them to be so.

I will be anxious to move amendments in Committee to make sure that the Bill gets this balance right. However, I would be glad to hear from the Minister that she takes the force of my argument and will give sympathetic consideration to accommodating it as the Bill progresses.