21 February 2010

MacAskill on “threatening, alarming and distressing behaviour”

‘New law to tackle online stalkers’, tells the BBC banner. Kenny MacAskill, the SNP’s Justice Secretary and premier goldfish orator, has used his Sunday to announce his plans to staple an amendment to the increasingly heavy-laden Criminal Justice and Licensing Bill. Despite the press emphasis on the online, the government press release deletes the proposed offence’s purely digital quality, promising an offence of “threatening, alarming and distressing behaviour” and giving us a foretaste of the legislative language by declaiming that ‘it is an offence for a person to behave in such a manner that a reasonable person would be likely to fear for the safety of any person on account of the behaviour, or be alarmed or distressed by the behaviour’. Clear as mud. I thought it might be helpful, given the obscurity of much of this, to outline in brief just where we are at the moment in Scotland in terms of legal prevention and regulation of harassing behaviour. In this context, hopefully we’ll furnish an answer to Subrosa’s question"is this a case of employing a legal sledgehammer to flatten an innocent public policy peanut?"

The beginning of wisdom is the definition of terms, argued Socrates. There is, perhaps unsurprisingly, a rather imprecise received wisdom of what precisely constitutes unlawful stalking or harassment in Scots law. There is no offence simpliciter of either. This is in marked contrast to
England, where the Protection from Harassment Act 1997 defines harassment as an offence. The same Act provides that in Scotland, conduct constituting harassment - ‘on at least two occasions’ - gives rise to a civil action, on which basis damages can be awarded, interdict granted, or a non-harassment order made. The harassed person will pursue this action themselves, rather than a criminal prosecution pursued by procurators fiscal. As the name suggests, this order requires the defender to refrain from harassing conduct in relation to the pursuer for as long as the order requires (this can be of indeterminate applicability). Section 9 of the 1997 Act makes breach of this civil order a criminal offence in Scotland. If indicted, the harasser-in-breach can be sentenced to 5 years imprisonment, a fine or both. If convicted in summary proceedings before judge alone, penalties include imprisonment for not more than six months, a fine, or both. It should be noted (under section 11 of the 1997 Act) that Scottish prosecutors can also seek such a non-harassment order, but only after an accused person has been found guilty of another offence involving harassing behaviour. Similar provisions on court orders and the penalty for their breach obtain in England.

The keynote is that harassment, per se, isn’t a crime known to Scots Law. That is not to say, however, that conduct commonsensically labelled stalking or harassing will be legal. Perhaps predictably, here as elsewhere, breach of the peace covers a multitude of legislative sins. With a lick of caution, and a stress on the procedural quality of my remarks, it is worth mentioning that Universality of Cheese blogger, Mark MacLachlan, was recently charged with breach of the peace ostensibly in relation to e-mails sent to a member of the Scottish Government. That case being live, I shall leave it at that. There are also other common law offences respecting threats, distinct from breaching the peace. Finally, surprisingly, Anti-Social Behaviour Orders may be relevant here, though I’ve no notion of how often, if at all, they’ve been imposed in circumstances which might loosely be characterised as ‘stalking’ or ‘harassment’. As you can see, hardly a seamless web of ordered rationality – just the usual moth-bitten tapestry of tangled knots and clumps which characterise Scotland’s criminal law.

Justifying the new provision, the Scottish Government cite a recent(ish) judgement of the High Court of Justiciary (handed down on the 22nd of July 2009, mind you. Even by Governmental standards, this is hardly post-haste…) in Harris v. H.M. Advocate. Concerned with breach of the peace, the width of its definition and a limiting principle of publicity – apparently this case has put flighty Kenny’s raw-edged nerves all in a’-tingle. It is suggested that applying a narrowed principle of publicity to charges of breach of the peace may exclude conduct in the private sphere which might be viewed as culpable and harassing. I don’t have time to go into the judgement itself, nor to critically scrutinise the Government’s use of it to justify new provisions. If you are interested yourselves, it can be consulted in full here. For myself, anything which hollows out breach of the peace and clarifies what is and is not illegal tends to the good. That said, I’m no fan of rampant criminalisation. A clear act of oppression is no more virtuous than a cloudy exercise in arbitrariness. Even the limited section of legislative text which MacAskill appears to be quoting demonstrates the hand-wringing quality of these legislative fudges – where you have a particular type of offence in mind, but linguistic capture isn’t easy. It may be that we find this discretionary mode of law acceptable – we trust in prosecutors not to go out of their way to pursue actions contrary to our contingent understandings of the law’s spirit, trusting that courts will apply it equitably in particular cases. Its important to realise, however, that by enacting such open-textured clauses of legislation, we’re effectively giving these public officers discretionary powers. If there is an iron-law of human affairs, it seems to be this - anticipate unintended consequences...


  1. Many thanks. As I thought it is just another piece of legislation to cover the backsides of our law enforcers and to confuse the mainly law-abiding individual even more.

    As you say, if this had clarified the 'breach of the peace' accusation then I would have welcomed it, but it does not.

  2. You're welcome, Subrosa. Whichever way one's views tend to orientate on the provision, hopefully that at least served to make the nature of the choices a little clearer.

    That said, this is the sort of legislative provision which Holyrood is usually rather keen on enacting - or at least subjects only to glancing, feeble critiques. We can probably anticipate that the proposed amendment to the Bill will pass in some form.

  3. Surely you can't anticipate unintended consequences? On the issue, though, isn't the 'reasonable person' test the one that has allowed the court's understanding of defamation to develop without the continued interference of politicians?

  4. On one level, of course you are right Calum - its absurd and paradoxical to anticipate what hasn't been anticipated.

    One can certainly adopt an attitude, however, that makes space in our reflection for the potentialities of Fortuna - and at least encourages caution firstly about saying 'this law with apply in such and such a way'. Obviously, if you enact provisions which on their face seem exceedingly discretionary, we can be even less confident about its consequences after it has been fed through the semi-autonomous structures of prosecution and court. The prediction is ill-founded. The same sense attaches to giving prosecutors or courts powers, while in your head reassuring yourself that they are exceptional, only exceptionally to be applied - without any robust legislative provision to ensure this is the case. This is one of my big bugbears with Stewart Maxwell's wheeze to allow past bad acts to be admitted as evidence in 'serious', 'special', 'exceptional' cases.


    On your second point, there are a profusions of 'reasonable persons' in Scots Law - whatever one of them resembles! I think you sometimes spot the youthful Lesser-Spotted Reasonable Person gamboling in the city centre - or in rural sheriffdoms, the Field Reasonable Person. Without descending into a long(er) discourse, that 'developing definition' which you allude to is not ideologically unproblematic. Mind you, the same may well be said for much of the Scots Criminal Law...