Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, which came into force on 13 December 2010, provides for a specific criminal offence of stalking.
The offence of stalking occurs when a person (A) engages in a course of conduct (involving conduct on at least two separate occasions) which causes person (B) to feel fear or alarm. In order for an offence to take place (A) does not actually have to act with the intention of causing (B) to feel fear or alarm, it is enough that (A) knew or ought to have known that engaging in the particular course of conduct would be likely to cause (B) to feel fear or alarm.
The Act defines 'Conduct' as including:
- following B or any other person,
- contacting or attempting to contact B or any other person,
- publishing any statement relating or purporting to relate to B or any other person, or purporting to originate from B or from any other person,
- monitoring the use by B or any other person of the internet, email or any other form of electronic communication,
- entering any premises
- loitering in any place (whether public or private)
- interfering with any property in the possession of B or of any other person
- 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
- watching or spying upon B or any other person
- acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm.
The Act provides three possible defences to the offence of stalking:
1. The course of conduct was authorised by virtue of any enactment or rule of law.
2. That it was engaged for the purpose of preventing or detecting crime; or
3. That it was, in the particular circumstances, reasonable.
The maximum penalty on summary conviction is 12 months or a fine not exceeding the statutory maximum, or both. The maximum penalty on conviction on indictment is 5 years imprisonment or a fine or both.