Protection of Freedoms Bill

My Lords, I note what my noble friend Lord Sharkey and all other noble Lords said. I think it was the noble Lord, Lord Dear, who said that we should take away all the comments. My noble friend said we should look at this and not delay legislation. As he reminded us, we have a consultation that runs to 5 February. Obviously, we want to see the result of that consultation before we move much further, but I am grateful to the noble Baroness for explaining how her clause works and allowing us the opportunity to debate these matters. As the noble Baroness will know, my right honourable friend the Home Secretary’s ambition, and the Government’s ambition, is nothing less than ending all forms of violence against women, including stalking. I am again grateful to my noble friend Lady Brinton for reminding us that stalking is not committed just against women and that some 20 per cent is against men. It is an offence that affects and can be devastating to many lives, and that is why we included stalking as a priority in our Call to End Violence against Women and Girls strategy published last November and why we followed it up with specific actions to tackle stalking in our action plan published this spring. It is why my right honourable friend the Prime Minister in response to a Question said: "““It is important that we take forward the work that the Home Office and the Ministry of Justice have done in looking at a proper, separate offence for stalking and recognising that there is a gap in the current law that we should fill, because there are people who are not getting the protection and help from the police that they need””.—[Official Report, Commons, 23/11/11; col. 292.]" The noble Baroness is seeking to strengthen the law on stalking and, as I said, there may be a case for that, but we should remember that we have that consultation and we want to look at it in some detail. There might be a degree of unanimity about what we can do and that at a later stage of the Bill—I do not know—something might be possible. That is a matter for the future, but before I go into some of the detail about what we have at the moment and what the noble Baroness’s amendment does, I think it is important to get that on the record. I would like to make one comment that I think is relevant and to deal with the question of police training and training for others that was raised by the noble Baroness, Lady Howe, and my noble friend Lady Brinton. It is important that the right attitude exists within the police and those who have to deal with these things. We recognise that in the past that was not always the case. The Home Office has been working very hard with ACPO, the Crown Prosecution Service—which is important in this—the Ministry of Justice and, equally importantly, various stalking charities to ensure that best practice guidance has been disseminated. We are trying to do that through a series of regional events to make sure that how they must deal with these matters gets down to the police at the grass roots. ACPO now thinks that 65 per cent of forces currently have officers trained in risk assessment in this area, and it hopes to get that up to all forces by the end of the year, so awareness is improving and training will go on, but I recognise that there are concerns in this field. I shall go back to some detail because I would like to get this on the record so that the noble Baroness can understand where we are with the existing Act—it was possibly the first Act that the previous Government passed, with the exception of that rather pernicious Act, which I was involved with, that abolished grant-maintained schools, but we will not deal with that at the moment. Probably one of the earliest Acts they passed was the Protection from Harassment Act. That was brought into force primarily to tackle stalking, but extends to any other persistent conduct that causes another person alarm or distress. If noble Lords will bear with me, I will just run through some of the provisions in that Act as I think it is important. As noble Lords will remember, Section 1 of the Act provides that: "““A person must not pursue a course of conduct … which amounts to harassment of another, and … which he knows or ought to know amounts to harassment of the other””." A ““course of conduct”” in relation to a single person is defined as conduct that occurs, "““on at least two occasions””," in relation to that person. In the case of conduct in relation to two or more persons, the course of conduct is defined as, "““conduct on at least one occasion in relation to each of those persons””." Section 2, which is the section that the noble Baroness is seeking to extend in effect to bring us in line with Scotland, provides that: "““A person who pursues a course of conduct in breach of section 1 is guilty of an offence””," that is punishable by a maximum of six months’ imprisonment, or a fine, or both. The first limb of the amendment seeks to increase that maximum penalty to a term of imprisonment ““not exceeding five years”” or an unlimited fine. As my noble friend Lady Brinton made clear, imprisonment is not always necessarily the way in which these matters need to be dealt with. Again, that is something that we need to consider because a knee-jerk feeling that we just up the ante in this way is not necessarily the right way to go about it. The Section 2 offence in the 1997 Act is designed to deal with all forms of lower-level harassment, including stalking, that do not result in the victim fearing that violence will be used against them. Because it is for that lower level, we think that the current maximum penalty is probably appropriate. The Section 2 offence needs to be viewed alongside the more serious offences of harassment, including stalking—although the word ““stalking”” does not come into the 1997 Act—where the victim fears violence, dealt with under Section 4 of the Act. The Section 4 offence is committed when the offender pursues a course of conduct that, "““causes another to fear, on at least two occasions, that violence will be used against him””," and, "““if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions””." This offence is triable either way and therefore carries a significantly higher maximum sentence of up to five years’ imprisonment and/or an unlimited fine. Where there is that fear of violence, a much higher penalty is available to the courts. The amendment also seeks to replace Section 4 of the 1997 Act with a new ““offence of stalking”” that mirrors that in Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010. Although the legislation in Scotland is framed slightly differently from the Protection from Harassment Act 1997, the same stalking behaviours are criminalised. Therefore, this amendment creates an offence that is already covered by the Section 2 offence in England and Wales but which has a higher maximum sentence. As I have already said, we do not consider that to be proportionate where the conduct does not cause a person to fear that violence will be used against them on each occasion. While the 1997 Act does not explicitly refer to stalking, it is potentially a very versatile piece of legislation and captures a wide variety of tactics employed by stalkers. It also, quite intentionally, captures other forms of harassment that have the potential to be every bit as destructive as stalking. Critically, the 1997 Act covers instances of behaviour that, taken separately, might not constitute an offence in themselves but when taken collectively form a course of conduct that can cause the victim alarm or distress. For example, a person who causes a victim to suffer harassment by loitering outside their house on one occasion but then follows them to work on another occasion could be prosecuted under the 1997 Act. They are two separate actions, neither of which is criminal, but they can be taken together. It is also possible under the existing legislation to prosecute an individual who sends e-mails or is involved in incidents on a social network site that amount to harassment of another on two or more occasions. In other words, it is possible under the 1997 Act to prosecute an individual for what is now commonly referred to as cyberstalking. I appreciate that some campaigners believe that, simply because stalking is not specifically mentioned in the 1997 Act, practitioners do not always realise that the Act can be used to tackle stalking and fail to take the appropriate action to deal with it. This amendment would undoubtedly help to put a definition of stalking into statute. I can see that it has that advantage, and arguably that might assist in raising the profile of the legislation in relation to this very serious criminal behaviour. That is obviously a factor that we should take into account. However, I reassure the House that legislation does currently exist to cover this criminal behaviour and that, as I made clear earlier, the work that we are doing with the police and the CPS means that they have guidance on the 1997 Act, which sets out that stalking and cyberstalking are covered by the Act.