Stalking: Scottish Law (Hansard, 9 July 1996)

§ The Lord Advocate (Lord Mackay of Drumadoon)

I consider that the common law of Scotland is adequate to deal with the menace of stalking. Such conduct can broadly be described as actings calculated to lead to the harassment of another person, whether they are intended to do so or whether they in fact do so. While such conduct frequently occurs on repeated occasions, it need not necessarily do so.

As far as the criminal law of Scotland is concerned, any conduct which is liable to create alarm and annoyance can give rise to a charge of breach of the peace. The types of conduct commonly referred to as stalking fall within that definition, even though the conduct complained of might in other circumstances be perfectly innocuous and lawful. Whether in any particular case the actings of an accused constitute a breach of the peace is a question for the court which falls to be determined in the light of the circumstances of the individual case. The court is entitled to hold that the accused's conduct amounted to a breach of the peace where something has been done in breach of public order or decorum and might reasonably be expected to have led to one or more members of the public being alarmed or upset. It is not necessary for the prosecutor to prove that actual harm was suffered by a third party. Nor is it necessary for the prosecution to establish that an accused person actually intended such a result.

In a case in 1961 the High Court of Justiciary upheld a conviction of breach of the peace where the accused had become infatuated with a young woman. The accused had formed a habit of waiting outside her place of employment, looking at her and following her and her fiancé. The young woman became alarmed and agitated and her fiancé angry and indignant. The High Court of Justiciary accepted that such conduct amounted to a breach of the peace. That is a good example of the flexibility with which the Scottish criminal courts can apply the common law offence of breach of the peace. In recent years persons who have engaged in stalking in Scotland have been successfully prosecuted on charges of breach of the peace.

Those who have made improper use of the public telephone system, by making offensive or menacing telephone calls, have been successfully prosecuted for contraventions of Section 43 of the Telecommunications Act 1984.

16WA

In Scotland, a police constable may arrest, without warrant, anyone he reasonably suspects to have committed or to be likely to commit a breach of the peace.

The maximum sentence available of a conviction for breach of the peace depends on the court in which the case is prosecuted. The maximum sentence of imprisonment ranges from 60 days in the District Court to life imprisonment in the High Court. The choice of court, which is determined by the Crown, reflects the gravity of the particular offence.

The joint consultation paper which has been published today by my noble and learned friend the Lord Chancellor and my right honourable and learned friend the Home Secretary identifies a number of deficiencies in the existing criminal law in England and Wales. There are difficulties over the requirement to prove intent on the part of the accused. There are also difficulties where the accused's behaviour is ostensibly routine and harmless and therefore not caught by existing laws. I am satisfied that these difficulties do not arise in Scotland, where the activities of stalkers are struck at by the common law offence of breach of the peace, which, as explained above, covers a wider range of activity than the similar offence in England and Wales.

The common law of Scotland also provides the victims of stalking with certain civil remedies. When personal molestation or assault is seriously threatened, an order for interdict may competently be sought from the Sheriff Court or the Court of Session. Interim interdict can also be granted. A person who fails to abide by the terms of an order for interdict or interim interdict is liable to be held in contempt of court and subjected to admonition, censure, fine or imprisonment. The maximum penalty which can be imposed by way of imprisonment for contempt of court is two years. It is also competent for a fine to be imposed.