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The second item on the agenda is the stalking and harassment consultation. The Law Society of Scotland was invited to the meeting; however, it apologises for not being able to attend. We had to arrange the meetings at fairly short notice when we realised that some space was available. The organisation intended to provide a copy of its response to the consultation. We hope to have that this morning and will hand it around when we receive it.
I thought that I would start by summarising the consultation document and give the committee some notes on the evidence that I have taken so far.
Thank you, Pauline. As regards inviting victims of stalkers to give evidence, I am afraid that we are driven by time constraints, as we have only one more week to decide how to respond to the consultation paper. It is difficult to see how we could timetable further evidence sessions. It is only a matter of luck that we have had this week and next week to schedule in extra sessions on some issues.
I would like to put on record the fact that I am very unhappy that, because of the pressure of work, we are unable to take further evidence. This is an important issue and I would like us to get it right once and for all.
That is why we appointed a reporter. We knew that we simply could not schedule it into our agendas.
I am just putting down a marker to say that I would not have been averse to hearing from some of the women who have been harassed, so that I could fully appreciate the impact that it must have on their lives. I am not happy that, through no fault of committee members, we are unable to do that.
Pauline McNeill is to be congratulated on the effort that she has put in. You concentrated on stalking and harassment against women. Are you able to give a percentage breakdown of how many instances there have been of women stalking and annoying men?
No, I do not have that information. However, if we were to create a new statutory offence of stalking and harassment, it would be non-gender specific. As one would expect, Women's Aid puts emphasis on cases of women being stalked and harassed by men, and I have been reporting on the evidence from that organisation. I am sure that statistics on female stalkers can be gathered and considered when the committee re-examines the whole matter later. If we are to legislate against stalking and harassment, we must also recognise that there are often cases in which the victim does not know the perpetrator. Sometimes, the stalker is unknown to the victim, and we must consider whether a new offence might be useful in cases that involve strangers.
Cyber-stalking is something that is becoming more prevalent. Did anyone you met mention that? Even if they did not, technology is moving things on and, whether we like it or not, cyber-stalking and cyber-harassment are beginning to emerge as a major problem in other countries. I imagine that it is only a matter of time before we find ourselves dealing with it here. If we change the law or our practices and procedures, it would be a pity not to take the opportunity to deal with cyber-harassment pre-emptively, rather than waiting for it to become a big problem and then having to legislate separately.
I apologise for arriving late. As a member of the Equal Opportunities Committee, I have a couple of observations to make on how women are treated in the judicial system, as victims of crime and as offenders. The sub-group on women has been doing a bit of work on that, and it struck me that we could have taken evidence on stalking and harassment and fed back our views to you. We have had discussions and taken evidence. I will direct to you to the parts of our previous meetings when we did some work on that issue.
It would have been useful to have had that flagged up to the committee earlier.
It has been flagged up through various debates, but there is no formal way in which it can be done. We would have been able to do some of the work. We can do nothing about it now but it is something that we should consider for the future.
Are there any other questions?
I want to ask about interdicts and powers of arrest, which have been mentioned. Scottish Women's Aid is aware that interdicts with powers of arrest could be used against ex-partners who are harassing their former spouses or partners. What are your feelings about that? Has the matter been raised in discussions with bodies other than Scottish Women's Aid?
The matter was raised primarily in discussions with Scottish Women's Aid. It is clear from discussions about stalking and harassment that the central issues overlap with some of the other work that we are doing. What came across from Scottish Women's Aid was that to legislate in the way that we have considered would plug a gap. We would then examine what was left.
It strikes me that sanctions are missing. Processes can be gone through, but at the end of the day there must be sanctions against those who are harassing someone. A charge of aggravated breach of the peace is one possible sanction, so that an arrest can be made before any further damage is done.
One of the issues that Scottish Women's Aid highlighted—others might also do so—was women having to pay for interdicts when a criminal offence has been committed. Even if there is an interdict law that can be relied on, there will be difficulties if, for example, a victim does not have a telephone and cannot, therefore, call the police. If the police do not properly record what the interdict is, the victim will not be safe. However we progress, the system must be efficient from the bottom up. That will start with the police ensuring that they can easily lay their hands on the interdicts when a victim calls so that they can act immediately. There is no doubt that there will be an overlap with some of the other work that the Equal Opportunities Committee is doing.
Did you hear from Scottish Women's Aid that the police did not have a note of the terms of interdicts? There is a requirement to intimate those terms. The solicitor who obtains an interdict with powers of arrest is required to make certified copies of that interlocutor for the chief constable and the local police station. The solicitor is also required to tell the police when the interdict ceases to function, if that falls—as is the case at the moment—on divorce. I am worried about the police being unaware of the terms of interdicts if solicitors are going to that trouble to protect their clients.
We talked about non-harassment orders and we perhaps overstepped the mark a bit. I have some experience in this, having had to write to my local police station to remind them of a non-harassment order. The number of interdicts will be increased, so if we are to legislate on this, we must get the legislation absolutely right, bearing in mind that the police already have problems with non-harassment orders. We must get this right from the bottom to the top.
It is a matter of practice.
I would be hesitant about accepting the proposition that the police do not have a clear record of those interdicts. I was at a meeting with police in my area last night and they are extremely concerned about the matter. They are in the process of setting up a scheme under which vulnerable people, especially women, will, at considerable expense, be supplied with free mobile phones dedicated to the 999 service. There will be a lot of phones available and anybody with a problem will have a phone all the time. When the police are as motivated as that, I would be loth to accept on the record that they do not have a clear knowledge of the interdicts. That does not seem likely to me, although I suppose it is possible that it happens in some police stations.
You are right to say that, but I did not say that the police do not have those records of interdicts. However, if we are to examine the system from top to bottom, we must ensure that it is efficient. There have been cases in which the police have had to be reminded of non-harassment orders, because the act has only been in force since 1997. Everybody agrees that it could be more effectively used.
You flagged up paragraph 45 in the consultation document as being the key paragraph on which we should focus. That paragraph makes it clear that
There are two reasons. The first is that breach of the peace is a charge that covers such a wide range of behaviour that people do not know whether to take it seriously. The other flash-point is that there is not enough detailed information on previous convictions records available to a judge who is passing sentence. I have been told that a previous convictions record will say only "breach of the peace", but there will be no indication that conviction was for harassment or whatever.
Sentencing is a very different question because, even if a separate crime were introduced, sentencing would still have to be dealt with, unless a sentence was prescribed absolutely. That will not happen even if there is to be a new law that introduces a new crime. Sentencing cannot be prescribed in that way, other than possibly to prescribe a minimum sentence. Sentencing will continue to be a big issue regardless of whether there is a new crime. If sentencing is one of the big problems, we might be moving into slightly different territory in terms of how we handle the situation.
Women's Aid felt that in cases in which a person had shown near-violent behaviour, had harassed their partner for years and had several convictions for breach of the peace, sentencing did not reflect an offender's history. Women's Aid feels that sentencing does not reflect all the trauma and emotion felt by the victim.
We will now take evidence from our two witnesses, Alison Paterson and David McKenna. This is about the third week in a row that you have appeared before us; thank you for coming at such short notice. You will remain for the next item on the agenda, but at this stage I ask members to confine their questions to consultation on stalking and harassment. Are there any bids?
Do you think that there should be a separate offence of stalking?
We were expecting to make a joint statement.
I am sorry.
Perhaps a statement is not in order. I appreciate that we are now well into the discussion, but we have highlighted some points in our statement that may be helpful to the committee.
You may make a statement, but please keep it very brief. I know that most of our witnesses have made statements, but that is not something that we ask for automatically. I am concerned about the length of the statements that witnesses are bringing with them.
In that case, I will make one point relating to language and definition. The terms harassment and stalking seem to be used interchangeably, even in very informed discussions such as this one. The consultation is very revealing in stating
That is useful and interesting. I suspect that most committee members have not thought about the issue in those terms. You are right to say that most people would use the terms stalking and harassment interchangeably. It is useful to have indicated that they are different. Gordon, you had a question.
I do not want to get bogged on this, but it is an important point. From research that has been done, can you give us an idea of what would constitute methods of stalking as opposed to methods of harassment? That is obviously an important distinction, but I confess that I do not understand it.
It has to do with what drives the behaviours. This month we published in the Scottish Legal Action Group magazine a short article that goes into this issue in more detail. As we know, stalking was first identified in the celebrity-strewn state of California, as a result of some high-profile cases involving media personalities, film stars and so on.
If I am following what you are saying, the difference between stalking and harassment seems to lie not in behaviour, but in the motivation for that behaviour. What the law needs to do is criminalise the behaviour. Differences in motivation are important when it comes to sentencing, treatment and what we do with people, but only behaviour can be criminalised. That leads me back to my original question. Leaving aside differences in motivation, do you think that we should deal with the criminal behaviour that we are discussing simply by using the law on breach of the peace better and more effectively, or do you think that we need a new statutory offence?
Before I ask my colleague to answer your question in more detail, I would stress that the motivation for different types of behaviour is imperative when deciding whether offences should be dealt with by statute or by common law. In Scots law, there is no obstacle to using both.
Pauline McNeill has touched on the complexity of dealing with stalking and harassment behaviour through the existing laws and processes in Scotland. If police officers, members of the judiciary and the people sitting around this table cannot work their way through it, there is little chance that victims of stalking and harassment will manage it. Pauline McNeill listed the different ways of dealing with stalking and harassment behaviour.
You will have gathered that we feel the most effective ways of addressing the issue of protection and of dealing with the perpetrators are to consider improvements to practice that could be made—we have some suggestions for that—and to do more research.
So you think that at this stage it is premature to talk about changing the law and that before we do that we need to examine all the aspects of this problem and all the current practices and procedures?
On balance, yes.
There is some immediate action that could be taken. The police service in Scotland could examine its procedures for identifying breaches of the peace that include harassment and stalking. They could do that in writing and the Association of Chief Police Officers in Scotland could issue guidance, which would have an immediate impact on the policing of stalking and harassment.
I appreciate that you do not have time to go into this in great detail, but could you identify some of the key areas that need to change? You mentioned police guidance as one of them.
One of the fundamental issues, which is as relevant today as it was in 1997, when it was last considered, is public awareness and awareness within the criminal justice system. There is a danger that the system colludes with the nature of stalking and harassment. The victims are full of doubt: how do they know when they are being stalked? At what point should they begin to take it seriously? Professional knowledge needs to be increased. Experienced police forces across the water should be encouraged to share their strategies and techniques.
Do you mean that instead of it appearing as, say, item 5 on an indictment in the High Court, the High Court case should simply be breach of the peace?
The great advantage of the offence of breach of the peace is its flexibility. If the offence is retained as the most effective way of prosecuting stalkers, we suggest that we should apply a lot more knowledge about the impact of the crime on victims. The logic would be that we should impose penalties of a greater severity. That would be symbolic of the fact that we view the offence as serious.
That would be an issue for the Crown Office to respond to.
I was interested in what you were saying about needing more evidence. There is a tendency to take the tabloid view of stalking. People think that it is new and exciting, but women have experienced it for generations.
That issue cuts across the gamut of crime—what it is called and what it is recorded as often does not relate at all to how the victim perceives what has happened to them. There is a broader issue about whether the categories of crime that we use should reflect the nature of the crime. For example, someone is charged with assault, but in fact it is domestic violence. The charge does not say to the victim that that was your partner who abused you.
That links into a matter that is perhaps more an issue for the social services, the voluntary sector and, perhaps, the police: the need for specialist counselling and advocacy services for victims of stalking, perhaps especially in relation to the type of stalking in which there is not a known relationship. We do not necessarily have expertise or understanding of the nature of what drives that stalker. A victim who came to an organisation such as Victim Support Scotland would get support and assistance, but we would not necessarily have the specialist knowledge to give them the best advice on dealing with it.
I found your evidence very interesting. It seems to be in harmony with a lot of what the police are saying. Specifically, the Police Federation stressed the need for more training and awareness raising. The note JH/00/21/5 states:
You mentioned a database of cases. Every member of the committee would probably be able to have their own database. One of the points that strikes me is the individuality of each case. They range from what I consider to be harmless contact to situations in which there could be serious results.
The purpose of a database is that once a stalker or harasser comes to the attention of the authorities—whether to the police service or to the courts—there is a record. Phil Gallie is right: plenty people will undertake stalking and harassment where their victims will not know whether it is sufficient to warrant any action. To some extent there is not much we can do about that, but when someone comes to the attention of the authorities, it is useful to have information about their previous activities and behaviour, because that adds to the case.
Could I just butt in on that point, as a couple of issues arise from it? Although somebody may come to the attention of the authorities, that may never result in a conviction.
I mean conviction information—not being a lawyer, I was speaking loosely. You made another interesting point about stalking, which is related to the point that Gordon Jackson and Alison Paterson were discussing a few minutes ago. Someone can be the victim of a stalker and not be harassed, or be stalked and not know that they are being stalked—by the time they find out, it might be too late. It might be the intention of the stalker that the victim should not be aware that they are being stalked.
I think that there are two sides to the community care issue. Vulnerable people living in communities who have been used to institutional life are prone to victimisation and may be harassed, but also, if they are not properly supported, may find that their conduct puts them in a vulnerable position on the wrong side of the law. The issue is complex.
I thank the witnesses, but ask them not to go away.