Many of us will have watched the recently aired and captivating Netflix series 'Baby Reindeer', which follows the story of Richard Gadd and his encounter with a stalker. Gadd portrays himself as the protagonist and takes the audience on what appears to be a surreal journey through the psychological turmoil of being relentlessly pursued. The series offers an unflinching and deeply personal portrayal of the realities of being stalked and harassed.
Stalking and harassment are, unfortunately, not just confined to the realms of televised fiction. Behaviour similar to that depicted in 'Baby Reindeer' can be a terrifying reality for victims of stalking and harassment.
What is harassment and what is stalking?
Section 8 of the Protection from Harassment Act 1997 provides that every individual has a right to be free from harassment. It goes on to state that a person must not pursue a course of conduct (involving behaviour on two or more occasions) which amounts to harassment of another person where the perpetrator intends the behaviour to be harassment or which occurs in circumstances where it would appear to a reasonable person that it would amount to harassment.
The criminal offence of stalking is defined in Section 39 of the Criminal Justice and Licensing (Scotland) 2010, being a course of conduct (on at least two occasions) intended to cause the victim to suffer fear or alarm or where the perpetrator ought to have known that their behaviour would likely cause the victim fear or alarm. The legislation prescribes behaviour that can be described as stalking, including following someone, contacting an individual by any means, publishing statements or material relating to an individual or purporting to originate from the individual, monitoring an individual's use of internet/email/other electronic communication, entering premises, loitering in any place, interfering with property, giving anything to an individual or leaving anything where it may be found by/given to/brought to the attention of an individual, watching or spying on an individual or acting in any other way that a reasonable person would expect would cause an individual fear or alarm.
Family law context
Harassment and stalking often occurs in the context of relationships or following the breakdown of a relationship. The dynamics of some relationships (which can involve control and abuse) and difficulties arising from a separation (often fueled by bitterness, resentment, desperation to reconcile or a desire for retribution or to continue to exert control) can lead to an individual pursuing a course of conduct which amounts to harassment or stalking of their partner or ex-partner. Section 8A of the 1997 Act deals specifically with harassment which amounts to domestic abuse.
There are a number of common law and statutory criminal offences which are relevant to harassment and stalking.
How can the criminal courts help?
Following a report to Police Scotland, an individual can be kept in police custody to appear in court on the next lawful day. If liberated on bail, special conditions can be imposed by the court which prohibits communication with the alleged victim. If an individual is released from police custody, other conditions can prohibit contact with the alleged victim including undertaking conditions (if the accused if released to appear at court on a specific date) or investigative liberation conditions for a period of up to 28 days (when the police require more time to investigate).
For an accused to be successfully prosecuted in Scotland, there requires to be corroboration of the crime (that is to say evidence of their culpability from at least two independent sources). Further, the court must be convinced beyond reasonable doubt of the accused's guilt. Upon conviction, the criminal courts can impose a non-harassment order against a perpetrator which prohibits them from approaching or contacting their victim for a specified period of time. A breach of a non-harassment order constitutes a separate criminal offence.
Civil court remedies
Victims of stalking and harassment may require to seek civil orders from their local sheriff court of the Court of Session to prevent harassment and stalking. There are many reasons for doing so, including circumstances in which successful prosecution of an individual is not possible. There are a number of protective orders which can be sought from the civil courts.
Non-Harassment Order
A Non-Harassment Order is designed to protect a victim from a course of conduct which amounts to harassment and which causes them fear, alarm or distress. If granted, such an order prohibits the person against whom the order is sought from doing certain things (which commonly includes specified behaviour tantamount to harassment). Given that a Defender in proceedings in which the Pursuer seeks a Non-Harassment Order requires to be given an opportunity to be heard, it is common for an interim interdict to be sought in the first instance.
If a Non-Harassment Order is granted, a breach thereof is a criminal offence. This can be investigated by police and, if there is sufficient evidence to prove an offence has occurred, the Procurator Fiscal can raise proceedings in the criminal court. Upon conviction, the court can impose a fine and/or a period of imprisonment.
Interdict
Interdict is a common law remedy which, if granted, is an order requiring an individual to refrain from acting in a particular way. This could, for example, include a prohibition on the person against whom the order is sought from approaching or contacting the victim. An interim interdict (a temporary order) can be sought very quickly to deter ongoing conduct. The court must be persuaded that a stateable case exists and that the balance of convenience favours granting an interim interdict. If the person against whom the order is sought has not lodged a caveat with court (which is a warning mechanism to prevent orders being granted against the person without any prior notice), the court can (in certain circumstances) be persuaded to grant interim interdict to prevent harassment in chambers prior to service of the action on the Defender. An interdict or interim interdict becomes effective once the person against whom the order is granted becomes personally aware of its existence, which usually requires service by a sheriff officer.
The court can be asked to determine that an interdict is a domestic abuse interdict. Further, there are circumstances in which a court can be persuaded to attach a power of arrest to an interdict, provided that the person against whom the order is sought has had the opportunity to be heard.
A breach of an interdict requires separate civil proceedings, which also requires the concurrence of the Lord Advocate for such proceedings to be raised.
Exclusion order and ancillary orders
Current and former spouses, civil partners and cohabitants can seek protection from the civil court in the form of an exclusion order, which is an order suspending a person's right to occupy a property which is a matrimonial or family home. The court must be satisfied that such an order is and reasonable and is necessary for the protection of the applicant or any child of the parties from any conduct or reasonably apprehended or threatened conduct of the person against whom the order is sought which is or would be injurious to the physical or mental health of the applicant or child. The court can also grant ancillary orders to complement an exclusion order, including an order for summary ejection of a person from a property and interdict to prevent that person from returning to the property. A power of arrest can be attached to such an interdict.
How can we help?
We have a team of experienced lawyers who can assist in providing advice in relation to harassment and stalking and, if appropriate, assist in securing protective orders. If you require advice, please get in touch.
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