27 November 2020|
Sexual Misconduct / Harassment
The policing of harassment and stalking offences: law and practice
In November 2020, the Centre for Women’s Justice hosted a webinar on the law and practice of the policing of harassment and stalking offences, given the gendered nature of the topic and the rise in their occurrence during the COVID-19 lockdowns. The session was chaired by Harriet Wistrich (Director), Nogah Ofer (Solicitor), and an Advocacy Caseworker from Paladin.
Stalking: a collective pattern, not just an isolated incident
There is currently no legal definition of stalking, but the working definition used by Paladin and the CPS is “a pattern of unwanted, fixated and obsessive behaviour which is intrusive and causes fear of violence or serious alarm or distress”. Unfortunately, the police response to stalking offences is often inappropriate.
One of the key problems identified by Paladin is that the police regard reports of stalking as isolated incidents, rather than a collective type of behaviour. This leads to the concern that victims are often retraumatised by having to discuss previous reports that the attending officer may not be aware of at the pertinent time. Paladin reports that the police regularly ask victims questions along the lines of “What would you like us to do about it?”, and that often they suggest providing words of advice to the parties involved. This response is seen as a ‘quick-fix’ solution, but it usually counterproductive as it increases the risk of escalation by putting perpetrators on notice.
Paladin also observes a relevant issue regarding the invitation to interview, in which the police will contact the perpetrator and invite them to the station. Rather addressing the situation at hand, this instead often causes an offender to amend their behaviour so as to elude detection.
One Paladin client initially experienced being left unwanted cards and gifts at her address. After the offender was invited to interview, he began stalking the client in more subtle ways. This included parking on roads near her house and making himself known to her in less obvious places, which ultimately made the case harder for the police to pursue.
Paladin note that there is an opportunity here for the police to conduct investigative work without interacting with the offender in advance which ought to be explored.
Stalking Protection Orders
A Stalking Protection Order (SPO) may be made on application to the Magistrates’ Court by the police. It is a civil order and applications for interim or full orders can be made. Within such an application, the police can request both prohibitions and/or requirements to protect the victim from the risk of stalking.
SPOs became available to the police on 20 January 2020, but Paladin has not observed a cohesive response to their application and are aware of only eight SPOs being granted at the time of the webinar. Across all 43 police forces, only some seemed aware of SPOs and how to implement them. Others had “absolutely no interest or knowledge” of them. Paladin also found that the police often place pressure on stalking victims to apply for non-molestation orders (NMOs) rather than SPOs. This places the onus back on the victim to provide information, causing them additional trauma and stress in securing the NMO when an SPO would be more appropriate.
Paladin has found that many police officers do not like being seen to not know the answer when it comes to stalking cases. With SPOs being relatively new, and rather than admitting to being unsure about SPOs and offering to research them as an option, the police tend to say things such as, “we cannot apply for an SPO because we have not yet arrested the suspect” – which is incorrect.
Paladin has also observed that legal teams are unwilling to pursue SPOs in the belief that if they are refused, it will undermine any subsequent stalking investigation. In other words, it is believed that the defence would be able to suggest that the suspect was not actually found to be stalking the complainant in question on the basis that no SPO was granted.
A key point that Paladin therefore wish to publicise is that an SPO can be applied for at any point during the course of an investigation, and that they are appropriate at the point where victims are referred prior to the perpetrators being arrested for anything.
Police response to breaches of Orders
The nature of stalking is persistent, continuing past conviction in some cases. The failure of the police to respond to breaches of NMOs or Restraining Orders (ROs) is another issue seen by Paladin. Referring back to the ‘collective’ aspect of stalking offences, it is this course of conduct that is not always spotted. Paladin has had experience of clients who were referred after a stalking conviction was secured and an indefinite RO put in place. In one case, the perpetrator continued to make contact with the victim and maintained his stalking behaviours via iMessage, social media and third-party contact. Yet, the police were reluctant to pursue the RO given that these actions were considered by them to be minor in nature. In the words of Paladin’s Advocacy Caseworker, “it was almost as if they couldn’t be bothered”.
Paladin also reported one situation in which an offender was twice imprisoned and released with an indefinite RO in place. He later took to YouTube and cultivated a large platform on which he discussed the police officers in his local area and presented his experience as being that of the victim rather than the wrongdoer. Yet, the police remained “at a loss” as to how to deal with this situation. This is despite the existence of HMIC guidance stating that the Chief Constable should ensure that police forces record stalking or harassment crimes when appropriate if victims report breaches of Orders and ensure that officers are aware of the need to address breaches of all Orders appropriately and within 6 months.
A large proportion of social interaction takes place online, which is particularly so during the pandemic. Yet when it comes to cases involving cyberstalking, Paladin reports that the police usually put the onus on the victim to remove themselves from the online sphere. In some cases, victims have no choice but to reduce their online presence, but the key point is that the police ought to concentrate on disrupting the perpetrator’s behaviour and preventing contact rather than putting a stop to the victim’s social activities.
Guidance from the College of Policing confirm that the onus should not be on the victim to change their behaviour. Officers should be mindful of not advising victims to either remove themselves from social media or block the perpetrator and/or their associates. (Indeed, if the suspect is not blocked, then at the very least this will provide a record of their behaviours.
Instructing a victim to change their phone number will also impact their life to a large extent: they risk losing contact with their social networks, other people may not know what their phone number is, and they could ultimately become more isolated as a result. The need for virtual contact may seem trivial to a police officer, but it does have a huge impact given peoples’ everyday reliance on social media, particularly during the pandemic.
Paladin have also identified increasing delays in the progress of digital investigations. There are fears that many police forces are struggling to analyse digital data evidence, especially within the six-month time frame for Section 2A offences. Paladin suggests that if the police were simply more communicative with victims and informed them that digital analysis can take anything up to six months, victims would feel more informed. Additionally, the police rarely utilise legislation to seize devices. All in all, opportunities are not taken to effectively utilise legislation, and the police tend not to consider the risks in cases where stalking is predominantly based online.
Undercharging ‘stalking’ offences as ‘harassment’ offences
In some stalking offences reported to the CPS, the CPS have returned a response that undercharges the offence as ‘harassment’ rather than one of stalking. The justification is usually that the outcome is the same in court due to the application of the same sentencing guidelines.
The CWJ has also noted cases in which the CPS were simply not aware of the impact on the victim as it was not in the victim statements, which also result in their undercharging offences. This is because when police officers take statements from victims, they tend to contain an account of what happened instead of the impact that the offence has had. This impact aspect is left until a later stage (i.e. for the victim personal statement); yet in such cases, the impact on the victim is part and parcel of the offence itself. It is therefore essential that details about the impact of the offence are included in the initial statement.
The HMIC has also reported that the police and CPS struggle to separate the two offences of stalking and harassment. Stalking in particular is misunderstood by both bodies, and as a result often goes unrecognised. HMIC has observed that the police occasionally mis-record stalking offences or do not record them at all. Prosecutors too miss fail to charge stalking offences, preferring to charge them as harassment instead. This under-recording has a knock-on impact on the allocation of resources as when it comes to analysing the numbers involved, stalking offences do not feature as highly as they should.
From time to time, the CPS will report that a suspect is willing to plead guilty to harassment but not stalking (despite the CPS’s acknowledgement of the fact that the offence is in fact one of stalking). Stalking carries a heavier stigma, which may explain why offenders are more willing to plead to harassment. However, this is why it is important for victims to secure a conviction for stalking against the perpetrators, so as to have the reality of the situation made clear and reflect the seriousness of what they have suffered. It is a systemic problem, and a different label is necessary to identify it. Existing guidance is also clear that a plea of harassment should not be accepted to a stalking charge except in the rarest of situations.
In cases where offenders have been willing to plead to harassment but not stalking, Paladin clients have reported feeling that they have no choice but to accept the harassment charge as it will save them from having to go through the trial process – particularly if the outcome is going to be the same (i.e. they can still acquire an RO).
Paladin also reports a victim-blaming attitude present among CPS prosecutors. In one case, a CPS prosecutor commented that there had been a failure to utilise a harassment warning and that the victim herself could have taken measures to mitigate her situation. Paladin states that prosecutors should not be advising on these matters, as doing so is in direct opposition to the guidance available.
Why is the police response so poor?
Stalking and harassment offences are areas in which the CWJ has observed some of the most flagrant failings, to the point where the police sometimes fail to recognise it as being criminal conduct. Domestic abuse support workers around the country have reported women victims attending police stations to make a report, only to be told to obtain a civil injunction, or merely provided with a calling card of potentially useful organisations – all without the police opening a criminal investigation at all.
Nogah notes the concept of a ‘hierarchy of offending’ that is present in the minds of the police. At the top of this hierarchy are the crimes of murder and bodily harm, with harassment and stalking being seen as lower down. Yet, there are clearly established links between stalking and homicide, particularly due to the way it links to jealous and obsessive behaviour similar to the links between controlling and coercive behaviour. Nogah cited one study of 358 female homicide cases, 94% of which involved stalking.
Cultural factors are also a concern, as many officers regard stalking and harassment as not being particularly serious. There is an old-fashioned approach that suggests they are not “real crime”, which cultivates a lack of interest or empathy among the police. This preserves their focus on isolated incidents rather than the broader pattern, which can prove fatal for victims. In addition to this, addressing stalking and harassment cases is harder work for the police due to the number of separate incidents involved. The HMIC describes stalking and harassment as “crimes of persistence” in that the actions in themselves may appear unremarkable, but the unrelenting behaviour by the perpetrator is experienced in its totality. It is essential to look at this bigger picture, which is something that the police repeatedly fail to do.
The plus side is that the legal tools are there, which creates a space for lawyers to step in and try to push for their implementation.
Nogah also observes a clear issue regarding the lack of training, prioritisation, and resources. There is a gap between the rhetoric on one hand, and the reality for victims and survivors on the ground. Furthermore, many specialist abuse units within the police have been disbanded over the years, with cases rising and resources shrinking.
Tips for effective reporting of harassment
There are two offences of harassment under Section 2 of the Protection from Harassment Act 1997, and all of the elements of harassment (plus stalking) must be met accordingly. (See Farore Law’s Mini Guide on harassment claims and offences for a detailed overview on this area of law.)
The Section 2 offences are summary offences, which means they must be charged within six months. This is a point to be mindful of, particularly if it takes time for the police to take action as time runs from the last incident.
The elements of the offences of harassment are as follows:
Alarm or distress must be caused.
CPS guidance states that the conduct may appear innocent if it is taken in isolation, unless it is carried out repeatedly or systematically as a course of conduct (i.e. at least two incidents).
The defendant also must know, or ought to know, that what they are doing amounts to harassment or a fear of violence.
This is an objective test. However, it can be easy for defendants to claim that they did not realise that what they were doing amounted to harassment. For example, if they send multiple messages to the victim, and the victim responds in some way, a perpetrator can claim that they did not realise the victim was alarmed or distressed. It is therefore important to advise people to send a clear message in writing that can be shown as evidence later on. Such a message could be along the lines of a simple text or email stating, “stop contacting me”. That way, if the perpetrator’s conduct continues, they cannot later claim that they did not know that their behaviour was unwanted. (This was the idea behind harassment warnings, but as noted above there has been guidance to stop using them given their misuse by offenders.)
The conduct must also be oppressive and unreasonable.
The courts will bear in mind the irritation and annoyance that can be caused through the day-to-day dealings between people. They are able to recognise the boundary between conduct that is unattractive and conduct that is unacceptable. The gravity of the misconduct must be something that would sustain criminal liability. In terms of stalking offences, the CWJ report that the key aspect is the idea of obsessive or fixated behaviour that differs from harassment, which is to do with the person rather than anything else.
The CWJ state that there are a wealth of procedures available for stalking offences. Examples include the risk assessments that exist for domestic abuse cases, and the police/CPS joint evidence gathering checklists. For example, in a special checklist reserved for stalking cases, the police must always take care to consider why the case in question does or does not meet the description of stalking.
The effect of the COVID-19 pandemic
The CWJ and Paladin report that stalking and harassment have worsened during the first UK lockdown. There has been much reporting in the press about how domestic abuse has increased during the pandemic, which is obvious as many victims are trapped at home with their perpetrators.
Stalking has also worsened; although not obvious, research based on Paladin’s caseload confirms that there has been a 50% increase in cases during lockdown. Victims are already isolated and dependent on social media to maintain their contacts, and when they cannot use social media the negative knock-on effect is exacerbated. Not only does it increase their sense of isolation, it prevents them going about their daily business (such as online shopping, banking, and suchlike.). The research also shows that being in lockdown does not mean that perpetrators have stayed indoors: they are still out and about, and as their targets are staying indoors, it leaves victims in a more vulnerable position.
The Strasbourg influence
Claire Waxman, London’s first Victims Commissioner, was stalked for over a decade. Following attempts to resolve the matter through the criminal justice system, her stalker began litigating against her in the civil courts. The CPS claimed that this did not amount to harassment as he was entitled to litigate, and so Waxman brought a judicial review of that charging decision. This was one of those unusual successful challenges to a decision not to prosecute, in which the court confirmed that the civil litigation brought by the perpetrator was harassment by another means. In this judgement, the judge opted to provide an exploration of Article 8 and addressed some of the Strasbourg cases to make clear that the state has a positive duty to protect victims from harassment.
This is a useful judgement as it is often the case that an individual continues to report things to the police, with the police failing to do enough before closing the case without charging or arresting the perpetrator. As such, what is needed are urgent representations to explain why the offence exists, and what the procedure should be. This is when Article 8 can be used to push home the point and/or threaten judicial review at the end of the day. Police complaints are not useful in that they are backwards-looking, whereas a threat of judicial review will take the issue out of the hands of the office is and into the relevant legal Department.
The above content is taken from the webinar provided by the Centre for Women’s Justice and does not necessarily reflect the views of Farore Law Limited.
The Centre for Women’s Justice is a charity that brings together specialist lawyers, academics and other experts in the field of violence against women. Farore Law sit on the CWJ’s Legal Reference Panel. Please visit their website for further information.