A Critical Analysis of the Law of Stalking in Scotland
| Author | Sam Middlemiss,Laura Sharp |
| DOI | 10.1350/jcla.2009.73.1.550 |
| Published date | 01 February 2009 |
| Date | 01 February 2009 |
| Subject Matter | Article |
A Critical Analysis of the Law of
Stalking in Scotland
Sam Middlemiss* and Laura Sharp†
Abstract This article analyses the current law of stalking in Scotland in the
light of various legal changes which have taken place since the enactment
of the Protection from Harassment Act 1997. The various types of crime
that can apply to stalking in Scotland are given detailed consideration
particularly in relation to monitoring and control of stalkers and enforce-
ment of legal measures against them. Changes in the common law rules
dealing with criminal law in Scotland have cast doubt on its continued
ability to deal with this problem and the complex, ad hoc nature of
statutory protection introduced in recent years against stalkers in Scotland
has done little to provide certainty in this area. Although the legal rules in
England dealing with this are by no means perfect the utilisation of the
two criminal offences in the Protection from Harassment Act 1997 to
combat stalking behaviour has had some success. The current legal rules in
Scotland are compared with those in England where arguably there is a
more developed system of legal protection.
Keywords Stalking; Legal; Protection; Obstacles; Recommenda-
tions
This article assesses the extent to which the Scottish Government,
known until September 2007 as the Scottish Executive, has delivered on
its promises for reform and the effectiveness of the provisions as prac-
tical and accessible remedies for victims of stalking. It argues that be-
cause the Scottish Government failed to follow the English Parliament in
legislating to provide criminal offences for stalking under the Protection
from Harassment Act 1997, it has failed to protect victims of stalking in
Scotland adequately.
Stalking and more importantly controlling stalking behaviour has
been recognised as a problem in Scotland for a considerable time. We
would argue that the response to this problem by the Scottish Parlia-
ment and the Scottish judiciary has been inadequate and that many
victims of stalking are still unprotected. The following extract highlights
some of the problems that can arise for victims of stalking in Scotland in
utilising the law that deals with stalkers:
The victim of a stalker who was barred from being alone with any woman
in Scotland has branded the legal system ‘despicable’ after his case was
deferred for the 11th time. Victoria Keiro, 26, spoke out after Robert
Basterfield—who is considered ‘highly dangerous’ by Scottish police—was
* Subject Leader for Law, The Robert Gordon University, Aberdeen; e-mail:
s.middlemiss@rgu.ac.uk.
† Lecturer in Law, The Robert Gordon University, Aberdeen; e-mail:
l.a.sharp@rgu.ac.uk.
89The Journal of Criminal Law (2009) 73 JCL 89–114
doi:1350/jcla.2009.73.1.550
granted bail at Perth Sheriff Court and allowed out on the streets again,
almost two years after committing the offence.1
In a much earlier highly publicised case, Marilyn McKenna was re-
peatedly stalked by her former boyfriend, Stuart Drury, and eventually
killed by him. It was reported that despite her obtaining an interdict to
restrain his behaviour, calling the police on numerous occasions to
protect her and bringing complaints against him, which resulted in his
being charged on three separate occasions with breach of the peace and
convicted of breach of the peace, he assaulted and intimidated her by
making unwelcome visits to her house. He also intimidated her family
and made unwanted visits to the house of her parents. He finally broke
into her house and killed her.2Admittedly these are extreme cases, but
they do raise two questions. First, does the current law on stalking equip
the police and the courts to deal effectively with such behaviour and
stop the torment it undoubtedly causes victims and, secondly, if the
current provisions are adequate, are the police and the courts in Scot-
land taking stalking and harassment sufficiently seriously? The range of
behaviour involved in stalking can be broadly grouped in three cat-
egories. First, there is following which includes frequenting workplaces
and homes, maintaining surveillance, and engineering ‘coincidences’.
Secondly, there is communicating by phone, letters, cards, graffiti, gifts,
and, increasingly, electronic mail and the internet (so-called ‘cyberstalk-
ing’). Often the stalker will order goods and services on the victim's
behalf. Finally comes aggression or violence, in which stalkers threaten
their victims, harass their families, damage their property, make false
accusations about them, and cause sexual or physical injury.3
The preceding quote illustrates the nature and complexity of stalking
behaviour and the fact that it takes a variety of forms and can be
perpetrated in different social situations. It is outwith the scope of this
article to consider fully the sociological and psychological reasons for
stalkers acting in the way they do and there are numerous published
works which cover this aspect of stalking.4However, stalkers have been
usefully classified by researchers in the USA into a simple obsessional
group, where the stalker and victim had a prior relationship; a love
obsessional group, where no prior relationship existed; and an eroto-
manic group, where the stalker is delusional about the fact that the
victim is, or was, in love with him or her. The simple obsessional group
is most common and stalkers in this category are the most likely to resort
to violence. Celebrity stalkers are usually found in the love obsessional
1 C. Brown, ‘Stalked by a Dangerman—But He’s Still Free after Case Put Off 11
Times’, The Scotsman, 23 November 2006.
2 The case was featured in the BBC Scotland television programme Frontline
Scotland, January 2000. Drury v HM Advocate 2001 SLT 1013, 2001 SCCR 58.
3 Editorial, ‘Stalking: Why Do People Do It?’ (2000) British Medical Journal, June,
Issue 320, 1486–7, available at http://www.bmj.com/cgi/content/full/320/7248/1486,
accessed 27 November 2008.
4 J. Boon and L. Sheridan (eds), Stalking and Psychosexual Obsession (Wiley: London,
2002); E. Finch, The Criminalisation of Stalking: Constructing the Problem and
Evaluating the Solution (Cavendish: London, 2002); M. Pathe, Surviving Stalking
(Cambridge University Press: Cambridge, 2002).
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