Protection of Freedoms Bill

Baroness Royall of Blaisdon Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Baroness Royall of Blaisdon]

2: Before Clause 64, insert the following new Clause—
“Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment), for subsection (2) substitute—
“(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”
(3) For section 4 (putting people in fear of violence) substitute—
“4 Offence of stalking
(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).
(2) For the purposes of subsection (1), A stalks B where—
(a) A engages in a course of conduct,(b) subsection (3) or (4) applies, and(c) A’s course of conduct causes B to suffer fear, alarm, distress or anxiety.(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—
(a) was authorised by virtue of any enactment or rule of law,(b) was engaged in for the purpose of preventing or detecting crime, or(c) was, in the particular circumstances, reasonable. (6) In this section—
“conduct” means (inter alia)—
(a) following B or any other person,(b) contacting, or attempting to contact, B or any other person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to B or to any other person,(ii) purporting to originate from B or from any other person,(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,(e) entering any premises,(f) loitering in any place (whether public or private),(g) interfering with any property in the possession of B or of any other person,(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,(i) watching or spying on B or any other person,(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and“course of conduct” involves conduct on at least two occasions.
(7) For the purposes of this section, a person makes improper use of an electronic communications network of electronic communications service or other social media if—
(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety, or(b) A uses the network or service to engage in conduct, the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b).
(9) A person convicted of the offence of stalking is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum or to both.(10) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—
(a) is not satisfied that the accused committed the offence, but(b) is satisfied that the accused committed an offence under section 2.(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””

[Baroness Royall of Blaisdon]

My Lords, it is of enormous significance that today we are debating amendments that would create a new criminal offence of stalking. At Second Reading, I said that this Bill presented us with an opportunity to address an important loophole in our law that meant that those subject to the sustained and harrowing experiences of stalking were not receiving the recognition and protection that they needed and deserved. I therefore warmly welcome the fact that the Government now accept that the law needs changing.

This change in policy is a tribute to campaigners—in particular, the National Association of Probation Officers and Protection against Stalking, as well as the members of the independent parliamentary inquiry, chaired by the right honourable Member for Dwyfor Meirionnydd, Elfyn Llwyd, whose report has been so influential, and, most importantly, the victims. I refer to women such as Tracey Morgan, Sam Taylor and Claire Waxman, who have shown the most extraordinary courage in speaking out for reform. I am grateful to the Minister for meeting me on Thursday last week to inform me of the amendments, although at that stage I was not able to see them. Now, having looked at them, I am concerned that there are some deficiencies.

A specific criminal offence of stalking is not just about raising awareness. Indeed, ensuring that stalking is named as a crime and that specific examples of stalking behaviour are set out in statute are certainly part of the solution. It will mean that police officers and prosecutors who use the 1997 Act as their operational framework will be able better to recognise and respond to cases of stalking. However, that is only part of the problem. The other, perhaps most significant, issue is that, even when stalking is identified, the police are unable to bring successful prosecutions against stalkers that will result in adequate sentences. The overwhelming evidence from the independent inquiry showed that the law is currently a barrier to just sentencing because the evidence required for stalking to be tried as an indictable offence is, in practice, too difficult to provide.

The two new offences proposed by the Government do not seek to remedy that. In fact, they perpetuate this key deficiency in the 1997 Act by continuing the distinction between what they consider low-level stalking offences, as in proposed new Section 2A, which are subject to a maximum sentence of six months, and serious cases of stalking, as in proposed new Section 4A, for which it must be proved that the victim suffers a fear of violence. However, we already have this distinction in the 1997 Act between Section 4—putting a person in fear of violence—which was originally intended to cover cases of stalking and carries a maximum of five years’ imprisonment, and the Section 2 offence of harassment, which covers lower-level offences and has a maximum sentence of six months. As noble Lords will know, Section 4 is very rarely used by the police because fear of violence is in practice very difficult to prove. As a result, cases of stalking are usually prosecuted under the Section 2 offence, meaning that most convicted stalkers come away with a sentence of just a matter of days or no custodial sentence at all and are free to continue to traumatise their victims and, in some terrible cases such as those of Clare Bernal and Jane Clough, to murder them. Of the estimated 120,000 cases of stalking in the UK per year, in 2009 just 786 people were found guilty under the existing Section 4, which concerns putting people in fear of violence, with only 170 given a custodial sentence, most of no more than weeks.

I am therefore extremely concerned that, by simply creating two new offences as an addendum to the existing Section 2 and Section 4 offences, we will continue to see prosecutors unable to prove fear of violence opting to jail stalkers who have waged sustained and terrifying campaigns against their victims under new Section 2A, the basic offence of stalking, with a maximum of six months in prison.

Two women, both victims, who met the Prime Minister last Thursday—International Women’s Day—were given an assurance that things would be changed, but they then found out that their circumstances would not be covered by Section 4A as currently drafted, as it would not be possible for the police to prove that they were in fear of violence, yet both women were stalked for six and 10 years respectively and have suffered terrible psychological trauma. Both suffered mental breakdowns, both have sought medical treatment for extreme stress and anxiety, and both have little or no confidence in the criminal justice system, which has consistently let them down.

Under the amendments, the perpetrators would still be tried in the magistrates’ court and, even if they received the maximum sentence of six months, they would be released automatically at the halfway point and would be back in the community after four weeks if tagged. Because of the near impossibility of proving fear of violence, perpetrator after perpetrator has been given ludicrously lenient sentences in the magistrates’ court and has consistently broken restraining orders, with none receiving treatment or rehabilitation. The independent parliamentary inquiry, expert witnesses from the police, the National Association of Probation Officers, Protection against Stalking and victims are all absolutely united in the view that Section 4A must be amended to “fear, alarm, distress or anxiety” so as to apply explicitly to cases where severe psychological damage has been caused but no explicit threat of violence or physical attack has been made.

It is staggering that the Government are proposing to retain the fear of violence distinction, despite such evidence. It is also staggering because in Scotland we have a clear legal precedent for a single offence of stalking without fear of violence. The Criminal Justice and Licensing (Scotland) Act, which was introduced in 2010, created a single offence of stalking, triable either way, with a maximum sentence of five years’ imprisonment. It is then up to prosecutors and the courts to decide at what level the case should be heard.

My Amendments 2 and 3, on protection from stalking, would replicate the Scottish model of a single offence of stalking, listing types of stalking conduct, triable either way, and would replace a duty on the Secretary of State to ensure adequate training and support for implementation. However, in the event that the Government are not willing to accept this alternative proposal, I have also tabled amendments to their amendments. With the inclusion of these amendments, I believe that we can ensure that the two stalking offences that the Government propose would deliver adequate sentencing of offenders and protection for victims.

Amendments 10, 11 and 12 make changes to proposed new Section 4A that would widen the scope of the offence to apply to cases causing the victim to suffer fear, alarm, distress or anxiety. That would ensure that for cases such as Claire’s, where it is impossible to prove fear of violence, where the victim has suffered years of psychological trauma the stalker will be eligible for the maximum sentence of five years. Amendment 9 would allow cases tried under the basic offence of stalking, created by proposed new Section 2A, to be referred up to the Crown Court for sentencing, if magistrates deem it appropriate: for instance, when new evidence came to light to suggest a sentence higher than six months were required. If theft can be tried either way, we believe that it is wrong to set such limitations in a trial of stalking.

Amendments 7 and 8 make changes to the list of examples of acts that should be considered in certain cases as amounting to stalking in order to allow for the addition of other forms of conduct in the future. I know that the Government will wish to argue that proposed new Section 2A states that these are examples and that therefore flexibility is already provided, but it is important to understand that the police will look to what is contained within the law for their operational framework. Therefore, we think that it is important to make it clear that the list is not exhaustive and provides for the addition of new types of behaviour, such as cyberstalking, that may arise in the future.

Finally, Amendment 14 would mean that, if an individual had been arrested for stalking, the police would have the power to enter their property without a warrant in order to prevent any evidence being destroyed. It would in fact return the power that previously existed in cases of harassment but that was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005.

Too many women have already died at the hands of their stalkers and I am glad that the Government agree that we must act now to provide greater protection for the women and men who have had their lives stolen from them by this harrowing crime. It is for the sake of these and future victims of stalking that we believe that it is vital that we get the changes right. We must address the problems of the existing law in full. Therefore, I strongly urge the Government to listen to the experts and victims and to support these amendments to their proposals today.

[Lord Henley]

My Lords, it might be convenient if I intervene at this stage, partly because I have government amendments in this group—Amendments 6, 13, 16, 18, 29 and 32—partly so that I can explain what we are intending and partly to deal with some of the concerns raised by the noble Baroness and to pre-empt some of the debate, particularly as we are at Third Reading. I shall also speak at the end of the debate to deal with any points that have been made.

I am very grateful to the noble Baroness not only for her explanation of four of the amendments but because she has raised this issue throughout the passage of the Bill, as she was quite right to do. She was also right to pay tribute to Elfyn Llwyd, to his inquiry in another place and for all that that has done, for which we are grateful.

The noble Baroness referred to the comments from my right honourable friend the Prime Minister last Thursday on International Women’s Day. The Government made the point that:

“Stalking is an issue which affects many lives, often in devastating ways. That is why we are taking it seriously and introducing these new offences”—

my right honourable friend made it clear that we would bring forward amendments to the Bill—

“Offenders need to know that they will be brought to justice for making others’ lives a misery. We will do all we can to protect victims of stalking more effectively and to end this appalling crime”.

He said:

“we’ve got to make sure that as a separate criminal offence, it’s combined with: better training for the police; better training for the probation service; better training for our courts; better action by technology, telephone and digital companies, so we stamp out this evil”.

Throughout the House we agree that tough action needs to be taken, that new offences need to be introduced and that sentences must reflect the severity of the crime. The only thing that we disagree on is the drafting on how to achieve this aim.

--- Later in debate ---

[Lord Henley]

My Lords, my noble friends Lady Brinton and Lady Hamwee were absolutely correct about getting the wording right. That is why I wanted to make it quite clear that I could not give the precise words at this stage and why it is very important that we have further discussions, as I promised, with Napo, which will take place this week. I along with other colleagues in the ministerial team will make sure that we get the wording right.

I also note the point made by my noble friend Lady Hamwee about the importance of consistency of language between one piece of legislation and another, and what she said about the legal aid Bill. The danger of inconsistency is that when legislation comes to be interpreted by the courts they have to think why Parliament has used different words on different occasions. So I note what my noble friend had to say and we will discuss it during the week. However, I cannot give any cast-iron guarantees at this stage other than what I have said. My noble friend Lady Brinton said how happy she was that the amendments would now give an opportunity for another place to discuss these matters.



The noble Baroness, Lady Howe, said that she would prefer a completely separate Bill. However, in the nature of these things, that is not always possible. My right honourable friend the Prime Minister recognised that here is an opportunity where we can do something, particularly in the light of the earlier discussions we had had on the Bill—I again pay tribute to the noble Baroness, Lady Royall—and the commitments I had given on Report. I hope that we can make some progress on that front but, obviously, it cannot be the Bill that the noble Baroness would like in an ideal world. This is not always an ideal world and we sometimes have to make use of what we have.

My noble friend Lady Hamwee also asked about remedies, particularly in relation to the point she made about the restraining order. I can assure her that the restraining order is contingent on Section 1. It remains unchanged and therefore will be incorporated into the stalking offences. I understand that it can be used for the offences under proposed new Sections 2A and 4A. If I am wrong about that, I shall get back to my noble friend and all other noble Lords as quickly as possible.

The point made by my noble friend Lord Hodgson about having been a victim of stalking some years ago was a useful intervention. It reminded the House that this offence does not necessarily affect only women but can affect people of either sex. We have to remember that point even though, in the main, victims tend to be women. That is why my right honourable friend the Prime Minister made his announcement on another day.

I hope that both in this brief intervention and in my earlier remarks I have satisfied most of the points raised by the noble Baroness. I will listen with care to what she has to say and then it will be for the House to make up its own mind.

[Baroness Royall of Blaisdon]

I am grateful to the Minister and to all noble Lords who have participated in this short but excellent debate.

I understand what the noble Baroness, Lady Howe, said about ideally having a separate Bill. However, I am delighted that the noble Lord has taken the opportunity to introduce these offences into the Bill. It means that more women and men will be protected in the very near future. Who knows how long a separate Bill would take to get onto the statute book.

On the amendments I have tabled, I well understand that the House would not be behind Amendments 2 and 3 and I accept that. On Amendments 7 and 8, I hear what the Minister said about his words being merely examples and I reluctantly accept that. However, the police in Gloucestershire would certainly understand “inter alia”, even if the police in Cumbria would not.

I was disappointed by the Minister’s response to Amendment 9 for two reasons. From time to time, cases are discussed by a magistrates’ court but, in the course of the proceedings, it becomes clear that the evidence shows there is more to a case than at first seemed. It would then be entirely appropriate for the court to decide that the case should be tried in a Crown Court so that an offender could be given the maximum sentence if necessary. I am also very concerned about repeat offenders. As we know, in the past there has been a problem for victims who have suffered from people who have offended time and time again. Under the proposals put forward by the noble Lord, if someone repeats a minor offence, he or she will continue to be tried in a magistrates’ court—it will be a summary offence—and on each occasion they will be eligible for a maximum sentence of six months. I do not think that that is enough.

The key amendments are clearly Amendments 10, 11 and 12. I hear what the Minister says and am grateful for his assurances that the Government will bring forward new wording that will take into account serious psychological harm, which can be absolutely devastating, as the noble Baroness, Lady Brinton, said. In fact, in some ways it can be even worse than the fear of physical violence. The words in my amendment are those proposed by the independent inquiry, the victims and the experts, and are tried and tested words that have been proven to get results in Scotland. Why will the Minister not accept my amendment and then, if necessary, look at the matter more closely before it is discussed in the other place? I am glad that the other place will, in any event, have an opportunity to debate these very important issues. Although I fully accept the Minister’s proven good intentions as well as those of the Prime Minister, I am slightly concerned that throughout the very welcome process that we have undergone as a result of the deliberations in this Chamber, at each stage there has been a slight impediment to the progress that could properly and better be made. I am concerned that we will not get the wording that we in this House and everybody deems necessary. Therefore, I would feel much more comfortable if the Minister could say that he accepted my amendment and would then act accordingly in the House of Commons.

I also have some concern about Amendment 14. Under current legislation, those arrested for relatively minor drugs or theft offences can have their premises searched on the advice of a police inspector that a warrant is not required. That makes the whole issue relating to stalking seem to be less important. As we know that cyber-criminals are becoming more and more active, I am worried that if people have to wait for a warrant the necessary material in the house could disappear before a warrant is obtained and the premises properly searched. Therefore, I have concern about Amendment 14.

I am very grateful to the Minister for having come as far as he has come. I know that he is pushing the boundaries to ensure that we get the right results in the end with the appropriate wording in the Bill. However, I urge the Minister at this late stage to accept Amendment 11. I am withdrawing my amendment with a slightly heavy heart because I want to be confident that the Bill is absolutely right to guarantee the safety of men and women and ensure that perpetrators of stalking are not only apprehended but imprisoned and given the right treatment where necessary. I would also like to withdraw the amendment knowing that we will have a further opportunity briefly to consider and vote on these issues in the consideration of Commons amendments at the next stage in this House. Will the Minister accept Amendment 11, the key amendment with the key wording, which is of such importance to victims, campaigners and all those involved in these issues?

[Lord Henley]

My Lords, I made it clear to the noble Baroness that I could not accept Amendments 10, 11 or 12—all three go together. The point I was trying to make is that we want to get this wording right, and I do not want to be bound by precisely those words. We have moved pretty fast since the end of our consultation and the end of the independent inquiry. We have brought forward this amendment, which we announced last week. I then made it clear that we would have further discussions with NAPO on this matter. That is what I want to do. I do not want to bind us before we have those discussions by accepting the precise wording of those amendments. That is why I made it clear in my opening speech that we wanted to address the spirit behind them but that we wanted to discuss these matters further. I cannot accept Amendments 10, 11 or 12, but the noble Baroness has heard the commitment I have made. With that, I hope that when we finally get to those amendments—I appreciate that we have one or two debates to go before then—she will feel it is not necessary to move them. We can discuss them after another place has discussed them.

[Baroness Royall of Blaisdon]

I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

Tabled by

[Baroness Royall of Blaisdon]

7: After Clause 110, line 21, at end insert “inter alia”

[Baroness Royall of Blaisdon]

I shall not move this or the other related amendments, because I am confident that the Minister will ensure that the discussions between the Bill team, Napo and other experts in the coming week will encompass issues wider than those relating to the wording of the new offence under new Section 4A, because I know that the Minister, like his right honourable friend the Prime Minister, will want to ensure that all the commitments that they have made in the last weeks can be adhered to.

Amendment 7 (to Amendment 6) not moved.