Official Report: Minutes of Evidence

The Chairperson (Mr Givan): The founder and chief executive of the Scottish charity Action Against Stalking is joining us via StarLeaf to discuss how the Scottish offence of stalking is working from the perspective of practitioners on the ground. I welcome Ann Moulds to the meeting. The session will be reported by Hansard, and the transcript will be published on our web page in due course. I will hand over to you, Ann, to give us a brief outline of the issues, and then we will move into a question-and-answer session.

Ms Ann Moulds (Action Against Stalking): Thank you, Chairman. Thank you very much for inviting me here today to give evidence to the Northern Ireland Assembly. Action Against Stalking came out of a campaign that I led in 2009 to have stalking introduced as a criminal offence in Scottish law. Until that time, there was no such crime as stalking. Any behaviours were prosecuted under breach of the peace, but very rarely did anything that constituted stalking get prosecuted in Scotland. In 2010, the offence of stalking was introduced in the Criminal Justice and Licensing (Scotland) Act 2010. I then took the campaign to England and Wales and was successful in having the offence of stalking introduced in the Protection from Harassment Act 1997. I took the campaign across Europe and managed to get stalking recognised in the Council of Europe's Istanbul treaty under article 34. That places a requirement on all European member states to codify stalking in criminal law. That was because of the success of the legislation. Recognition of harmful and abusive behaviour is the governing criterion of the offence. Placing the onus and spotlight on victims was also mechanistic in the Scottish Government's decision to strengthen the European directive for victims and witnesses and place that in statutory law.

That is the background to the campaign by Action Against Stalking. I am delighted to be here to give you some information on your Protection from Stalking Bill.

The Chairperson (Mr Givan): OK. Thank you for those opening remarks. I have a couple of questions. In your experience, what is the most important thing that can be put in place for victims of stalking?

Ms Moulds: An offence of stalking will criminalise the behaviour. When I was taking through the offence of stalking, that was the template model. I was looking at a listed model offence. It was important to take stalking out of harassment. Stalking is not harassment. It has a different mode, motive and perspective. We had to differentiate between what are two very similar but completely different concepts to clear up any conceptual confusion. It was important to give the crime a name: stalking. That is what it is. To name the crime is fair not only to the police, the victim and those working in the criminal justice service but to the perpetrator, because at least they are left in no doubt about the crime that has been committed.

The Chairperson (Mr Givan): OK. Thank you. What are your views on the success or otherwise of the Scottish legislation's implementation? Are there things that we should be alert to and from which we need to learn?

Ms Moulds: The legislation has come under review. It has never required any amendments. It does what it says on the tin. One of the challenges of bringing in robust, strong legislation was to transcend the complexity of that type of crime. That is what the legislation aimed to do. It fits neatly on an A4 piece of paper. We did not even try to define the crime. There is no overall consensus on an academic, clinical or legal definition of stalking because of the wide range of behaviours that constitute the crime. The majority of stalkers never commit criminal offences. The behaviours are normal social behaviours that we all engage in every day, but, when placed in a stalking context, they are more than harmful. We had to make the legislation very robust, very clear and very concise. Rather that limiting the scope of the offence, we decided to place an operational definition of the offence, which is two or more behaviours that define a course of conduct that gives rise to feelings of alarm and concern or fear and alarm in the victim. Those behaviours are either deliberate or reckless. What we know is that an awful lot of stalkers do not ever set out to trigger fear and alarm in their victim. That is not their intention, so we could not have that used as a loophole in a court of law. Not knowing is not a defence in the legislation.

The other powerful point about the legislation is that it is very clear and concise and lists a set of categories into which most stalking behaviours can fit. Section 39(6)(j) means that there is a non-exhaustive list, so that captures any new or innovative behaviours that stalkers will employ.

One of the biggest trends of the legislation is that section 39 provides for a higher test case offence, which captures only those behaviours that constitute stalking. However, as we know, stalkers are highly manipulative and devious. It is a very ambiguous type of offence. In order to try to close any loopholes in the legislation, and to give the procurator fiscal the confidence to use the legislation, we decided to embed section 38 of the Criminal Justice and Licensing Act in the legislation as an inferred differential. In other words, the procurator fiscal could quite confidently use section 39 at a case, and, if it would not stand in a court of law, it would automatically defer to section 38, which is

offence. That is prohibition legislation for abusive and harmful behaviour. It is catch-all legislation. It is not unlike the 1997 Protection from Harassment Act, which has a very broad scope and wide application. We use it as a safety net and a catch-all. Its strength is that it is so clear, robust and concise. It is an operational definition. It is the ABC of stalking. It is probably the most robust stalking legislation in the world today. It worked before the police even received any training on the crime. They were able to understand the legislation. It is written in layman's terms. If a victim contacted me and claimed that the police did not understand or recognise something as stalking, I sent that victim the legislation and asked them to take it to a police station and show it to the police. That was all that was needed. It means that everyone can understand what stalking is. It is so clear. That is the power of the legislation.

Another powerful aspect of the legislation is that it is a two-part crime. The first is the stalker's behaviours constituting a course of conduct, which is two or more behaviours. The second part of the crime is the impact on the victim. Those behaviours give rise to feelings of fear or alarm on the part of the victim. In the Scottish offence of stalking, that is subjective; it is defined by the victim. In section 38 and other wide-ranging prohibition legislation, it is usually an objective test. We did not want the objective test. As soon as a victim feels fear or alarm because the behaviours that they are experiencing are persistent and unwanted, that constitutes the offence of stalking. That is how simple it is.

The Chairperson (Mr Givan): Thank you. That is helpful.

Ms Dolan: Thanks, Ann. You mentioned that you work with the media to combat the crime of stalking. What role do you think that the media have in combating stalking?

Ms Moulds: The media play a huge role. One of the challenges that we had was that stalking was one of those crimes — psychological harm and abuse — that always took a back seat when it came to crimes of a physical nature. The biggest challenge was getting the media to start to help people to understand that crimes of a psychological and abusive nature are every bit as serious. The media have slowly come on board. Although we see physical crimes and victims being murdered even though they have been stalked still taking centre stage in the newspapers, as time has gone on, the newspapers have recognised that psychological abuse is every bit as harmful. That has helped to educate the public in coming forward. It has been very useful. We need the media.

Ms Dolan: That is a good point. I agree: the media are very influential, so it is important that they say the right things. Sticking with the theme of media — social media — how do you think the Government could better tackle cyberstalking?

Ms Moulds: They are struggling to do that just now, because of the type of platform, the right to freedom of speech, again, and stalking, again. Even on social media, most of the messages are quite harmless, but it is the unwanted and persistent contact that causes victims a lot of problems. When we were trying to get the crime recognised, we found it challenging that police officers tended to treat each incident as a single individual incident rather than the course of conduct. At the time when the offence of stalking was created, cyberstalking was not the emerging threat that it is now. It is not the legislation that is the problem. It is the technology, and the police are just not up to speed with it yet. Technology will always be faster than the slow response of our systems, if that makes sense. By the time that we catch up, it is another 10 miles away. Stalkers are stalkers, and we have an interconnecting medium and a system that is very slow to respond.

Ms Dolan: I completely understand. Thank you for that, Ann. Well done for all the work that you are doing.

Ms S Bradley: Ann, thanks for your submission and presentation. You commented on the education piece and said that the legislation was scripted in a way that a layperson could follow easily. I appreciate your point on that.

You also said that a victim reached out to you. We see that consistently with a lot of legislation. The voluntary and charitable sectors are probably a safe first port of call for many victims, who may feel very vulnerable or even unsure about whether they are victims of stalking. I congratulate you. I know that you have worked very hard on this issue and have developed an organisation around it. However, based on that point, do you think that a specific regional support network needs to be built around this legislation in Northern Ireland?

We are looking at making gains on creating a victims' commission of some type here, but what about the follow-up piece and measuring the success of the legislation? You mentioned that a review is due to happen, but do you have any evidence that the thresholds that have been set are achievable, or are many of the cases falling into the secondary crime, where the threshold may prove to be too high? Can you provide any feedback on that? Furthermore, who is charged with doing that and with monitoring and gathering that data?

Ms Moulds: Those are very important questions. Number one, I think that you need to have specialised services wrapped around the legislation. We find that it is a very difficult crime to understand and recognise. It is complex and needs specialised knowledge. I delivered training to the police. I helped the Crown Office to develop the national training programme for all Crown Office staff across Scotland, which was important. I also delivered training to sheriffs, victim support services and the NHS because people could not get their heads around the legislation, no matter how simple it was. That is number one.

Victims of stalking are a highly vulnerable group and probably one of the most traumatised victims of crime due to the chronic nature of that type of crime. The threats are not always overt and are usually embedded, inferred, cryptically encoded or symbolically recognised, and there is a drip, drip, drip effect on the victim over time.

It is a very slow brutalisation of the victim's world. We are not looking at a unitary construct; we are looking at stalking as a stand-alone offence co-occurring with other crimes such as domestic abuse, human trafficking, sexual exploitation, child abuse, child abduction, bullying and racial hatred. Stalking covers the wide gamut of some of the most serious forms of violence, and we need specialised services. Action Against Stalking, in recognition of the trauma and long-standing effects of this type of crime — at present, there is no research — is aligning its service with mental health services. We are employing qualified mental health professionals. We hope to align with the NHS Agenda for Change for health and social care because we are seeing too many traumatised victims coming through.

Article 34 of the Council of Europe's Istanbul convention on preventing and combating violence against women and domestic violence states specifically that there should be specialised services for victims of stalking. I appreciate that we are not in Europe any longer. Nevertheless, that is still good practice in recognition of the complexity of this crime. We now receive referrals from the police and other support services in recognition that we hold the specialised knowledge that they do not. Without a doubt, consider wrapping specialised services around the Bill. Have I overlooked a question, Sinéad?

Ms S Bradley: That is really helpful, Ann. Yes, there was a question on data collection on convictions and the numbers of convictions that have come from the legislation.

Ms Moulds: Only about 10 cases of stalking had been reported to the police in the 10 years before I took forward the campaign. In the first year that the legislation came into force, there were over 400 police detections. The numbers have gone up and down over the years. They dropped a bit this year, but that is because ex-partner stalking has been taken under the new Domestic Abuse (Scotland) Act. We now register stranger and acquaintance stalking under the specific offence. In 2019-2020, there were 871 cases, but the number has been as high as 1,600.

The other challenge is that the recent Scottish Crime and Justice Survey (SCJS) figures show that 11·8% of adults reported being stalked within a 12-month period, and that is a high number. The number is equal between men and women. The trouble is that men are not coming forward to report. Therefore, we are not quite sure about the incidence of men being stalked compared with that of women. Secondly, are the numbers accurate? How many come under section 38, "threatening/abusive behaviour"? We suspect that it is probably quite a lot. Sometimes, it is what is easiest for the police. Section 38 is much easier legislation under which to file a prosecution, and it does not have as high a test case as section 39.

Even 10 years on, we are still trying to sort this out. We know that police detection rates do not yet come anywhere near the incidence or prevalence reported in Scottish criminal justice surveys. There is a huge gap. We also know that only about 9% of victims choose to report to the police, for a variety of reasons. We do not have a base reference point for this crime. That, I think, is a summary of what I am trying to say, and that is why we launched the Centre for Action Against Stalking. All the research on stalking comes from Australia or America, and most of it is out of date. We have formed a partnership with the University of the West of Scotland to drive forward research to try to get a library of up-to-date, empirical research so that we can understand this crime and find out what is the landscape of stalking across the UK.

Ms S Bradley: I appreciate that, Ann, and that is revealing in itself. It is good that you have that centre. We need to look at the myths. The Bill looks to encapsulate the online piece. Whilst it needs to be there, we also need to know, in the real world of stalking, how prevalent that is. It is about understanding what the behaviours look like. Any updates on that would be most helpful. Thank you. That was genuinely very informative.

Ms Moulds: Thank you, Sinéad.

Miss Woods: Thank you, Ann, for that. You are doing brilliant work, and it is really good to see what you are doing. Your submission was also very interesting. Much of what I was going to ask has been covered. You have explained it very well. You mentioned that the police treated incidents in isolation and not as a course of conduct, which we take account of in the legislation: a prosecution requires behaviour to have happened two or more times. Have you seen any improvements in that since the legislation was implemented in Scotland?

Ms Moulds: Very much so. At one point, in the early days, I was being inundated with victims asking for help. The police were not recognising the crime, cases were falling through the net, and the police were not believing victims. We even had police knocking on the doors of those accused to tell them to behave themselves. That escalated situations, which then triggered an escalation in activity against the victims. We had a huge amount of unsafe practice, and victims were badly disappointed.

We do not get that many cases of that now, because Police Scotland has been absolutely fabulous. Do not get me wrong: we still have cases that fall through the net, but we have developed a framework with the police, and we work very closely with them. If a victim who comes to us feels that the police have not recognised them, or that they are unhappy with something that is happening in the investigation of their case, we can trigger a response, which is a review of that case at a higher level. We can also do that with the Crown Office, if the case has already been reported to the procurator fiscal. The agreement is that we manage and stabilise the victim, and we allow the police or the Crown Office to review the case in whatever way they feel necessary. That has been a win-win for all. It has been a fabulous framework, and it all came through an invitation from the Crown Office in 2014, when it asked whether I would help it to develop all the stalking work. That was a complete change of paradigm. Through that work, using a bottom-up approach, I was able to feed up victims' experiences. That informed the police and the Crown Office all about this crime: the different behaviours, how it manifested and how victims experienced the crime and the system. It also allowed the police to identify training needs across the country for different police divisions.

We used to have a top-down approach, but we started to develop this bottom-up one, articulating the victim's voice. That led to the police in Scotland adopting a victim-centred approach to the crime. Through that, it has been educational and formative. How did they know that the money invested in time, systems, policies and legislative reforms had worked and whether it worked consistently across the board? How they managed to do that was by taking information from the victims through a bottom-up approach. That is how it has worked.

Over time, the police have done very well. We still get cases that fall through the net, and we always will. However, they are no longer hugely concerning, because, by and large, the police are doing an excellent job.

Miss Woods: Great. That is really good to hear. I am a big fan of training and of a bottom-up approach to get victims' voices heard. If something is affecting one person, it is probably affecting another.

Ms Moulds: Absolutely.

Miss Woods: You mentioned training and that the police identified training needs. I have a very quick question on that. Do you know whether there was mandatory training for police in Scotland on the new offence?

Ms Moulds: There has not been mandatory training. That never happened. Over time, there have been improvements in systems, and police have become more aware of the stalking offence. They have done very well. The people who have been trained are the Crown Office staff. The Crown Office developed a national training strategy for all Crown Office staff, the procurator fiscals. Every procurator fiscal in Scotland has had some training on stalking. The Crown Office also identified senior procurator fiscals in each office across Scotland who had to undergo accredited training, which also required them to pass an exam at the end. The senior procurator fiscals have passed their accredited training, and they take responsibility for the stalking cases in each office in Scotland — the

abuse cases.

We also have the different federations for the Crown Office, so that is the bottom-down. We have the national lead for stalking and the Crown Office national lead for domestic abuse and stalking, and then we have the different federations and down to the offices. In Police Scotland, we also have domestic abuse task force units that take on stalking as well. They have their own specialised area that deals with the majority of the stalking cases.

Miss Woods: I am a big fan of mandatory training as well. We took that from Scotland for our Domestic Abuse Bill. We have spoken to the Chief Prosecutor in Scotland and Women's Aid about training and its importance. I certainly want to replicate that in our Bill. To square that off, do you support training on stalking legislation in the criminal justice system?

Ms Moulds: If it is new legislation that changes the paradigm from the behaviours to victim impact, that does not fit into the old, retrospective, traditional paradigm of retrospective investigation. It is a completely new way of thinking about crime. Having the victim's voice as the governing criterion of an offence is another paradigm that police are not used to, so they have to be trained in that type of crime. The introduction of the stalking offence triggered a new wave of legislative reforms in Scotland. It was the recognition of psychological harm and abuse, not the material or physical crimes. That changed the whole ball game, and it changed how the Government viewed victims. They were viewed as being the drivers of justice. They recognised that it was not the crime; it was the impact of the crime that was more damaging than anything else. The whole paradigm has changed completely, and they need training and education on that, Rachel.

Miss Woods: I could not agree more. I could talk to you all afternoon, and I may be in touch with you after the meeting, if that is OK.

Finally, you have been involved in this for a very long time. You have seen the Scottish legislation come through, and it is being delivered and implemented. From your perspective, have you seen all the main asks and needs delivered in Scotland? Is there anything that has not been delivered that was promised or that you wanted? This brings us back to the Chair's point on what we can learn from what Scotland has and has not done. Specifically, is there anything that has not been done that we should consider?

Ms Moulds: No, I do not think so. What we have done with the stalking legislation is to lead the way. The criminal justice system was never designed to accommodate victims of stalking. Its criminal focus created a pathway for those accused and offenders, and their right to a fair trial etc. Way back when the offence of stalking was being introduced into criminal law, I knew that how the legislation was designed was never going to fit into our existing justice system, because it was never designed to accommodate victims per se. However, it triggered the Scottish Government to look at the criminal justice system. That system has been undergoing great reforms for a few years now, but we have to make justice work for victims, not just for offenders. We have to bring this justice system into the 21st century where it belongs.

Society has changed, crimes have changed, and the nature of crimes is changing. We have cybercrime. We are breaking down national and international boundaries. I am working with the European Commission, which is looking at stalking being embedded within the European gender equality strategy and at where stalking fits in with that. I am hearing that the Council of Europe is considering looking at an EU-wide definition of stalking.

We have been pushing for the harmonisation of stalking across the UK, including Northern Ireland and Wales. With cyberstalking, we get victims from Poland and America — from everywhere across the world. There is no point having different legislation in different countries. That only creates loopholes. Somewhere along the line, we have to harmonise this work and have standards of service for all victims of stalking, regardless of what country they reside in. If we have a victim in Scotland, we want to be sure that they will have the same standards of service if they move to Northern Ireland. Equally, if our legislation in Scotland is such, and a perpetrator disappears off to Northern Ireland, we will want to know that the same legal sanctions will be enforced and that the perpetrator will not fall through a loophole created by a variation in the legislation. For that reason, we are very much for the harmonisation of stalking laws and shared practices.

Did that answer your question or did I avoid it?

Miss Woods: As I said, I will probably be in touch with you after the meeting. Thank you so much for your answers.

Ms Moulds: Thanks, Rachel.

The Chairperson (Mr Givan): Ann, thank you. That has been really helpful. You have great expertise, and that came through during this evidence session. I really appreciate your giving up your time to be with the Justice Committee today.

Ms Moulds: It was a pleasure, Chair. Thank you very much.

The Chairperson (Mr Givan): Thank you. Bye-bye.