Let the Stalker Beware? Analysis of the Law of Stalking in Scotland
| Author | Sam Middlemiss |
| Date | 01 October 2014 |
| DOI | 10.1350/jcla.2014.78.5.942 |
| Published date | 01 October 2014 |
| Subject Matter | Articles |
of the Law of Stalking in Scotland
Sam Middlemiss*
Abstract This article analyses the significance of changes to the law in
Scotland dealing with stalking by outlining the previous legal position and
examining the new legal rules and their impact. Stalking has been proven to
be extremely harmful to the victims of the behaviour and their families, and
proper legislative rules to deal with it in Scotland have been long overdue.
The legislative protection required for stalking victims was introduced in
2010 and it now seems an opportune time to review the legal rules and their
impact in protecting victims against stalkers in Scotland. In the process,
consideration of statistical data concerning stalking prosecutions is also
considered. The article also includes analysis of the legal position of stalking
victims in England and Wales where new offences have recently been
introduced.
Keywords Stalkers; Harassment; Scotland; Anti-social behaviour;
Anti-stalking legislation
The history of the legal struggle to deal with the problem of stalking in
Scotland is characterised by a judiciary (and courts) that have: underrated
the impact of the behaviour on the victim;1 utilised common law crimes
(in the absence of statutory rules) which latterly were ill-suited to deal
with the behaviour2 and provided a general lack of a support for victims
who brought the issue before the criminal courts. Although there is still
room for reform,3 the legal position of victims of stalkers in Scotland has
undoubtedly improved.4 One the major reasons for this is the new
legislation on stalking which will be analysed below. To understand fully
the issue at hand it is necessary to analyse recent research into stalking
and provide an overview of the law that applied in Scotland before the
enactment of s. 39 of the Criminal Justice and Licensing (Scotland) Act
2010.
Research into stalking in Scotland
There are various research studies that have been undertaken into stalking
in Scotland. However, none of these has been conducted on a national
* Reader in Law, Robert Gordon University, Aberdeen; e-mail: s.middlemiss@rgu.ac.uk.
1 R. Mays, S. Middlemiss and J. Watson, ‘Every Breath You Take, Every Move You Make ...
Scots Law, the Protection from Harassment Act 1997, the Problem of Stalking in
Scotland’ (1997) 6 Juridical Review 331.
2 At least since the common law offence of breach of the peace was redefined.
3 Judges in Scotland are still often reluctant to pass appropriate sentences for stalkers.
4 S. Middlemiss, ‘The New Law of Scotland on Stalking: Too Little Too Late?’ (2010) 4
Juridical Review 297.
The Journal of Criminal Law (2014) 78 JCL 407–422
407
doi:10.1350/jcla.2014.78.5.942
The Journal of Criminal Law
scale or included victims at the heart of the research.5 In 2005, research
was conducted into stalking in Scotland as part of a larger study into
stalking in different jurisdictions.6 Several thousand victims of stalking
from 47 countries across the world responded to the researchers’ inquiries
about stalking by completing a survey.7 The lead researcher, Dr Lorraine
Sheridan,8 was surprised by the number of Scottish people that contacted
her (around 700) when she advertised for stalking victims to help her with
her research. She discovered that stalking behaviour was far more
prevalent in Scotland than previously thought. What the researchers
found was that fewer than half of the respondents had reported their
experience to the police. This was despite the fact that more than 25 per
cent of the stalking experienced by them had involved violence. In a high
proportion of cases, the stalker also targeted the victim’s children and
friends.9
Dr Sheridan also discovered that stalking carries not only a physical and
emotional cost to the victim, but also a financial one.10 The two most
prevalent stalking behaviours experienced by the respondents were
unsolicited telephone calls affecting 72 per cent of the respondents and
spying on the victim experienced by 67 per cent of them.11 Around half of
the victims had had a prior intimate relationship with the person that
became their stalker and more than half were forced to give up social
activities and lost family or friends as a consequence of stalking.12 The
research highlighted the broad impact that this behaviour has on the
victims and others in Scotland and elsewhere. It also helped identify
the nature of the behaviour perpetrated against victims. It showed clearly
that being subjected to stalking can be devastating to a victim’s life,
affecting his or her ability to maintain and protect friends and family, have
a permanent residence and job, and live a normal life.
Prior to the Criminal Justice and Licensing (Scotland) Act 2010 the
extent and seriousness of the stalking problem in Scotland in terms of legal
cases taken against stalkers remained largely hidden. This was because
stalking was prosecuted generally under common law crimes such as a
breach of the peace which were not identified in the statistical data as
5 S. Morris et al., Research into the Existing Criminal and Civil Law Procedures and Practices in
relation to Stalking and Harassment, 15 November 2002, Research Finding RF 67, Scottish
Executive, available at http://www.scotland.gov.uk/Publications/2002/11/15756/13113,
accessed 8 August 2014.
6 L. Sheridan, Findings from www.stalkingsurvey.com (2005). Paper presented at the
29th International Congress on Law and Mental Health, Paris, France.
7 It included 2,000 victims from the USA, 1,200 from England and Wales and 700 from
Scotland.
8 A forensic psychologist and senior research fellow at the Heriot-Watt University in
Edinburgh.
9 She found that in each case an average of 19 people were adversely affected.
10 The majority of victims lost more than £5,000 as a result of hours lost at work and legal
expenses: ‘Law on stalking is necessary and timely’, The Herald, 9 March 2010, available
at http://www.heraldscotland.com/comment/herald-view/law-on-stalking-is-necessary-and-
timely-1.1011988, accessed 8 August 2014.
11 Of the victims, 19 per cent had their homes broken into and 18 per cent suffered sexual
assaults.
12 D. Gunn, ‘700 Scots victims of stalkers add their voice to new research’, The Scotsman, 9 March
2010, http://www.scotsman.com/news/700-scots-victims-of-stalkers-add-their-voice-to-new-
research-1-474570, accessed 8 August 2014.
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Let the Stalker Beware? Analysis of the Law of Stalking in Scotland
stalking offences13 and were not distinguished from other unrelated
criminal behaviour which was prosecuted as these crimes. This makes it
difficult to carry out any meaningful comparison between the previous
legal position and what is happening at the time of writing. The following
quote suggests that the situation is much better now as a result of the
legislation:
Since the law changed in Scotland the effect of tougher anti-stalking legislation
is clear. Before the changes only 70 offenders were prosecuted over 10 years,
but since 2010 the figure has soared to 443.14
How the reporters came up with the figures prior to 2010 is unclear, but it
seems excessively low. Other reporters and commentators15 have been less
positive about the change in the law. It has been claimed that fewer than
one-third of the 1,400 people reported for alleged stalking in Scotland
have been convicted since the flagship legislation came into force. Recent
figures show victims have achieved justice in 462 out of the 1,431 alleged
stalking cases reported to the Crown Office and Procurator Fiscal Service
(COPFS) between December 2010 and September 2013.16 While these
figures are disappointing and commentators are right to call for
improvements, even this conviction rate will deter some stalkers. There
are possibly a number of factors which can account for the low level of
successful prosecution. However, the underlying reason will derive from
the fact that some members of the judiciary in Scotland are slow to apply
the new law appropriately.
Before considering the current law and its impact on victims of stalking
in Scotland it is necessary to provide some background to the previous
law.
Previous law in Scotland
The nature and the impact of the previous law on stalking has been dealt
with in detail elsewhere, so there is no need to reiterate it here.17 The
common law crime that principally applied to the prosecution of stalkers
was breach of the peace. There are undoubtedly other crimes that can
apply to stalking in Scotland,18 but as these are seldom utilised by
prosecutors, it is unnecessary to give them detailed consideration in this
article. Prior to the 2010 Act there were important changes in the criminal
law in Scotland that impacted on stalking. Most notable of these was the
13 Scottish Crime and Justice Survey, available at http://www.scotland.gov.uk/Topics/Statistics/
Browse/Crime-Justice/crime-and-justice-survey, accessed 8 August 2014.
14 J. Chilton, ‘New Law to Tackle Stalkers Comes into Effect’, Sky News, 26 November
2012, available at http://news.sky.com/story/1016103/new-law-to-tackle-stalkers-comes-into-
effect, accessed 8 August 2014.
15 Ann Moulds and Campaign Action against Stalking, available at http://www.
scotlandagainststalking.com/node/66, accessed 8 August 2014.
16 F. Mckay, ‘Just one-third of stalking cases end in conviction’, The Herald, 21 October
2013, available at http://www.heraldscotland.com/news/home-news/just-one-t...
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