Stalking and the Criminal Law
The Criminal Justice and Licensing (Scotland) Act 2010, provides for a new statutory offence of 'stalking' specifically criminalising stalking. Conduct constituting stalking may, depending on the circumstances, be prosecuted using a number of common law and statutory offences. Some of the offences most relevant to stalking, including breach of the peace, threatening and abusive behaviour, the law on threats and offences under the Sexual Offences (Scotland) Act 2009, are described below.
Breach of the peace and Threatening and Abusive Behaviour
Conduct which might be described as harassment or stalking can be prosecuted under Scots law as a breach of the peace. This common law offence covers all behaviour (including single incidents) which is severe enoygh to cause alarm to ordinary people and threaten serious disturbance to the community. As a common law offence, the scope of the offence is ultimately a matter for the courts to determine but it is a wide-ranging offence and the courts recognise that it can be serious. The maximum penalty for common law offences such as breach of the peace is limited only by the court in which the case is tried. In the High Court, a life sentence is theoretically possible.
Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 provides for an offence of 'threatening and abusive behaviour. It provides that it is an offence for a person to behave in a threatening or abusive manner towards someone if that behaviour would be such as to be likely to cause a reasonable person to feel fear or alarm. This offence is intended to allow for the prosecution of threatening or abusive behaviour that could previously have been prosecuted as a breach of the peace, prior to the Appeal Court’s decision in the case of Harris v. HMA last year, which ruled that the crime of breach of the peace requires a public element.
Common law of threats
In Scotland there also exists the common law crime of threats. There are two classes of threats. The first includes threats to "burn a person's house...to put him to death, or to do him any grievous bodily harm, or to do any serious injury to his property, his fortune, or his reputation. " A crime is committed as soon as the threat is made. The second class comprises all other threats, including threats of violence not amounting to grievous harm. Threats of violence could also be charged as a breach of the peace if the conduct involved puts someone in a state of fear or alarm.
The Sexual Offences (Scotland) Act 2009 will, when it comes into force, create new statutory offences relating to unwanted sexual communication and coercing a person to look at sexual images, which may be particularly relevant in cases of sexually motivated stalking or harassment.
Section 6 of the Act provides that the offence of 'coercing a person into looking at a sexual image' is committed if a person intentionally causes the victim, without consent, to see a 'sexual image' and does so for the purpose of obtaining sexual gratification, or of causing humiliation, alarm or distress to the intended recipient. A 'sexual image' is defined for the purpose of this offence as one in which a person is engaged in a sexual activity, or an image of a person's genitals.
Section 7 of the Act provides that the offence of 'communicating indecently' is committed where a person intentionally sends the victim a sexual written communication by whatever means, for the purpose of obtaining sexual gratification, or for the purpose of causing humiliation, alarm or distress to the recipient.