Protection of Freedoms Bill

This is a point of genuine disagreement, because there is concern that what should be seen as a non-exhaustive list of behaviours and conducts for the offence of stalking will instead be seen as a list of the only such behaviours and conducts. We are trying to ensure both that training is given to all sectors of the criminal justice system and that there is clarification about the wide range of perpetrator behaviours that can be included. I gave the example of Google in order to argue that if the idea of cyber-stalking had been considered when the protection from harassment law was introduced in 1997, legislators might have recognised the need to address it. Given that we so rarely get an opportunity to draft legislation, it is important that we make any new laws as robust as possible, such as by ensuring that the Secretary of State can intervene. We believe that our proposal would offer an opportunity to address any concerns that might arise. Law makers might say, ““This is a list of stalking behaviours and anything else isn't stalking.”” If the Government are not prepared to accept the amendment, they must explicitly state how they will ensure that this list does not become the only list of examples, rather than a starting point for our law makers. Our amendments to Lords Amendment 51 go to the heart of the inconsistencies in the proposals. We challenge the retention of a section 2A offence of stalking and the creation of a section 4A offence of stalking, differentiated by the concept of seriousness. We welcome the fact that, in response to Baroness Royall, the Government's position has moved from that of the amendments tabled in the Lords, which set out stalking as purely involving a fear of violence. The new provisions go much further towards recognising the need to be able to act against perpetrators without waiting for physical harm as well as the different ways in which this crime impacts upon victims, and that is certainly welcome. However, the strengthening of section 4A does not undermine the inconsistency created by the retention of a section 2A offence for stalking. Under Government amendments (i), (j) and (k), section 4A will apply when someone has suffered"““serious alarm or distress which has a substantial adverse effect on””" their"““usual day-to-day activities””." Yet section 2A sets out a less well-defined offence of stalking that would secure a lower level tariff. That offence would be triable only in a magistrates court, with a fine or maximum penalty of just six months' imprisonment. We believe that such a distinction between different offences and courses of action does not stand scrutiny. Specifically, it is unclear from the evidence of this crime what kinds of cases would fall under section 2A rather than section 4A. In respect of the wording of the new amendments, it appears that a distinction would be based on proving that someone has suffered a ““serious”” form of distress. Therefore, the Government must set out how that could be proved—for example, whether it would be similar to psychiatric injury, where we need a psychiatrist to say there has been a serious impact on the central nervous system. This also raises the prospect of medical records having to be disclosed, potentially giving more information to the stalker at court and also creating a higher burden to prove, so the CPS would again be less likely to charge under Section 4 and default to Section 2A, with the resulting lesser options for punishment. This also raises a point that we as parliamentarians should reflect upon in respect of whether we would ask the victims to have their lives altered as a marker of such seriousness. The survey commissioned by the university of Leicester for the Network for Surviving Stalking found that one third of victims of stalking said that they had lost their job or relationship or had been forced to move because of the stalking. Some 92% reported physical effects and 98% reported emotional effects, ranging from anxiety, sleep disturbances, anger and distrust to depression, self-harm and post-traumatic stress disorder. Half of all the victims had changed their telephone number; half of them had given up social activities; half of them had seen their performance at work affected; and a third of them had relocated. If the Home Secretary wishes to retain these divisions, she must tell us whether it is justifiable to ask victims to prove that their lives have been changed in such a serious way before we can offer them real protection. Does she not see the risk that the police could apply this ““seriousness”” test in choosing whether to investigate and secure a section 2A or section 4A offence, leaving victims in the horrific position of having to prove that their lives have been damaged in these ways in order to secure effective action against the perpetrators? As many experts have pointed out, this distinction risks retaining one of the problems with the existing legislation: it is extremely unusual for someone to be found guilty under section 4 of the Protection from Harassment Act 1997, with just 170 of the 786 people found guilty being given a custodial sentence. Some 53,000 harassment cases were recorded by the police in 2009-10, but in only 23 was a custodial sentence of more than 12 months given for breaching a restraining order and in just 27 was such a sentence given for putting someone in fear of violence. Under the current legislation, most perpetrators receive restraining orders on multiple occasions and yet still receive fines and non-custodial sentences. Both the National Association of Probation Officers and Protection Against Stalking state that they believe that"““similar outcomes will come from an analysis of court proceedings under 2A.””" Even if a case can be made for the retention of a ““lesser”” offence of stalking, the division also limits the ability of the Crown Prosecution Service to respond to cases effectively by setting out two separate paths for the same crime. As NAPO and PAS have pointed out, allowing the offence to be triable either way would have two advantages. First, if evidence came out during a magistrates court trial indicating that the matter was more serious than first thought and may warrant a sentence of more than six months, the case could be sent to the Crown court for sentence. Secondly, many stalkers who do not threaten violence and who may be tried under section 2A for less serious matters are, nevertheless, highly persistent. Without the power to refer to a Crown court, such people could appear persistently in magistrates courts, being liable only for six months' imprisonment and automatically released at three months —if they were tagged, they would come out after one month and continue their behaviour. The amendments tabled by the Government maintain the risk that offences will not be adequately addressed, as at present, because they ask the CPS to choose between ““lower-level”” offences of stalking, as yet undefined, and those considered ““more serious””. The challenge for all involved in addressing this offence will be to make such a distinction in any meaningful way as to merit it. In contrast, our proposed amendments to Lords amendment 51 offer the opportunity to correct this situation and ensure that this confusion is no bar to ensuring that those who commit these crimes are given appropriate sentences. Our amendment (d) to Lords amendment 51 proposes a simple definition of stalking that could clarify the difference between ““harassment”” and ““stalking””: between neighbours who behave in unacceptable ways towards each other and the person who fixates on a former partner or someone they have never met but serves to cause them distress. Our amendment (c ) to Lords amendment 51 would help to ensure that it is open to the criminal justice system to respond to these crimes by making them triable either way, thus introducing the possibility, alongside the lesser sentences the Government are offering under section 2A, of a sentence of up to five years. If the Government will not accept the amendments, they need to set out precisely what constitutes a ““lesser”” crime of stalking and how it would be distinctive from the crimes they expect to be prosecuted under section 4A. In particular, I ask the Home Secretary to put on the record clear examples of the different criteria they expect to be applied to justify this division and to ensure that criminal justice agencies are able to understand the intent in their proposals. Finally, our amendment (a) to Lords amendment 52 deals with how these crimes are investigated and with the importance of ensuring that the police are able to act. It would restore a power of entry to the properties of those arrested for stalking without a warrant to ensure that evidence cannot be destroyed. The power previously existed for cases of harassment, but was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005, and many of us believe that this omission requires attention. Again, I highlight to Ministers the risks they are taking by creating two stalking offences, where one is indictable and the other is only a summary offence. Under their proposals, the police can enter a property to search only if the offence is indictable. The confusion between sections 2A and 4A could mean that officers hesitate in using this power to investigate matters relating to these crimes for fear of not finding enough evidence to meet the ““seriousness”” test. Seeking this power, and thus the possibility of investigation, would help to ensure that the police would not flinch out of confusion; those committing offences that the Government believe would fall into section 4A could be investigated without the police thinking twice. Without this power, there is a very real danger of evidence being destroyed as others act to protect those arrested for this offence. The possibility that it could take hours to secure a warrant allows that possibility—that time is valuable. Indeed, as we have seen with recent attempts to destroy evidence relevant to the prosecution of those involved in phone hacking, such behaviour is not theoretical. The fact that the police are currently able to search the property of a shoplifter but not to access the property of someone who has been arrested for stalking to seek further evidence—perhaps to see the shrine they have created or computer information on social networks—further reflects the difficulties our police will have with the measures as they stand in ensuring that they effectively protect victims. I note that NAPO and PAS state that they support the amendment for two reasons. First, it would put a limit on the amount of time that the accused had to wait at a police station before being questioned and, secondly, it would minimise the chances of the perpetrator's associates disposing of any evidence. We have come so far with this vital legislation and I hope that the Home Secretary will go further today. None of us wishes to start again with new legislation, but victims of crime desperately need our help. We have an opportunity to create laws and ensure that there is training in all aspects of our criminal justice system that will mean that one person will no longer be able to torment another human being in these ways. There are flaws in the current proposals which I hope the Government will address by accepting the amendments. The Opposition, who have been supporting the proposals, will support the Government if they do that and will hold them to account for any missed opportunities if they do not.