The Law in Scotland
Under Scots Law there is no specific crime of stalking and most stalking behaviour will be dealt with under the common law offence of ‘Breach of the Peace’. Less commonly, stalking could be prosecuted under the common law offence of ‘Threats’.
The 1997 Protection from Harassment Act made harassment a statutory offence in England and Wales and though its jurisdiction was extended to Scotland under section 8-11, it does not, in fact, create a criminal offence. A civil action must be raised for an ‘action of harassment’.
Section 8-11 of the 1997 Protection from Harassment Act states that:
‘Every individual has the right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment or another and:
a) is intended to amount to harassment of that person: or
b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person’
Under this provision, a Non Harassment Order can be obtained with powers of arrest. The person breaching the Order can be arrested without warrant if the arresting officer reasonably believes that the perpetrator is in breach of the Order, or has breached the Order.
Section 9 of the Act states that any person in breach of a NHO made under section 8 is guilty of an offence and liable:
a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both such imprisonment and such fine: and
b) on summary conviction, to imprisonment for a period not exceeding six months or to a fine not exceeding the statutory maximum, or to both such imprisonment and such fine.
An Anti Social Behaviour Order (ASBO) is defined in law as ‘an order which prohibits, indefinitely or for such period as may be specified in the order, the specified person from doing anything described in the order’.
Local authorities have the power to apply to a Sheriff to obtain Anti Social Behaviour Orders under the Antisocial Behaviour etc (Scotland) Act 2004, against a person who:
- Is aged over 12 years
- Has acted in an anti social manner or pursued an anti social course of conduct
- Has caused or is likely to cause alarm or distress
The conditions that apply to this are that a ‘course of conduct’ must be two or more incidents, the parties must be from two different households in the local authority area and the ASBO must be considered necessary to prevent further anti social behaviour.
In February 2002, the ‘Protection from Abuse (Scotland) Act 2001’ became law. Under this legislation, a person who is being stalked could apply to a Sheriff for protection through an interdict with powers of arrest. With this in place, police can arrest, without warrant, a person breaching the interdict. This legislation can be used no matter what relationship exists between the two parties.
If the stalking behaviour includes emails, texting or threats by telephone, Section 127 of the Communications Act 2003could be used to bring a prosecution. The legislation states that, ‘a person found guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine… ’
