What can we learn from Baby Reindeer? The law on stalking examined

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What can we learn from Baby Reindeer? The law on stalking examined

Stalking is an emerging topic of conversation that has attracted increasing media attention over the last few years. Eleven years on from stalking becoming a specific criminal offence, it is now suggested that complaints are under-investigated and under-prosecuted. This topic has had the limelight in the last month following the release of hit Netflix series Baby Reindeer, which is presented as a “true story”.

The series, written by and starring Richard Gadd, is a dramatisation which depicts an aspiring comedian called Donny who works in a pub. A customer, Martha, quickly forms a strong attachment to him. Martha then begins to harass Donny through persistent emails and visiting his pub daily. Donny attempts to report his experiences to the police, but is met with scepticism from an officer, who casts doubt over whether the emails he describes could really constitute stalking. The series is set in 2015, and offers an unconventional perspective on stalking, which has raised awareness of the issue with the general public.

In 2022, the Suzy Lamplugh Trust submitted a super-complaint on behalf of the National Stalking Consortium, made against the police response to stalking in England & Wales. The complaint suggested that there were systemic issues with the way the law on stalking had been applied since its introduction over a decade ago.

For National Stalking Awareness Week 2024, the Suzy Lamplugh Trust has now published its latest report based on the data gathered from Freedom of Information Requests to police forces across England and Wales and the CPS. The report examines the problems at each stage of the process, from the initial disclosure by the complainant through to the trial. The Trust advocates for Multi-Agency Stalking Intervention Programmes and makes a number of recommendations for the Government.

While stalking does not have a specific legal definition, it is generally understood to be ‘a pattern of unwanted, fixated and obsessive behaviour which is intrusive. It can include harassment that amounts to stalking or stalking that causes fear of violence or serious alarm or distress in the victim’.

This gives investigators wide coverage when looking at the type of behaviour and the relationship (or lack of) between the victim and suspect. Although, as we see in Baby Reindeer, unconscious bias about typical ‘victims’ and ‘suspects’ can impact on the real-world application of this definition.

The legislation relating to stalking looks to tackle both the immediate and long term impact of the offending behaviour:

Stalking Offences – Protection from Harassment Act 1997 (as inserted by the Protection of Freedoms Act 2012)

  • Stalking (s 2A) – A course of conduct which amounts to harassment, and which amounts to stalking.
  • Stalking involving fear of violence or serious alarm or distress (s 4A(1)(b)(iii)) – A course of conduct which amounts to stalking and which causes another to fear, on at least two occasions, that violence will be used against him or her; or causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities.

A non-exhaustive list of examples of behaviour amounting to stalking is set out in s.2A(3) of the Protection from Harassment Act 1997:

(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—

(a) following a person,

(b) contacting, or attempting to contact, a person by any means,

(c) publishing any statement or other material—

(i) relating or purporting to relate to a person, or

(ii) purporting to originate from a person,

(d) monitoring the use by a person of the internet, email or any other form of electronic communication,

(e) loitering in any place (whether public or private),

(f) interfering with any property in the possession of a person,

(g) watching or spying on a person.

Stalking Protection Orders – Stalking Protection Act 2019

From receiving a complaint from a victim of stalking, police can quickly apply for a Stalking Protection Order (‘SPO’), which is a civil order made by a magistrates’ court. It is available whether or not criminal proceedings have started. It can even be applied for where criminal proceedings are unlikely to ever start. However, these applications are reserved to the police and cannot be made by victims.

To apply for an order, the police must be satisfied that:

i. The suspect has carried out acts associated with stalking;

ii. The suspect poses a risk of stalking to a person; and

iii. There is reasonable cause to believe the proposed order is necessary to protect the other person from that risk.

It can be made on an interim or full basis, and it can impose prohibitions and/or requirements on the suspect.

Had this mechanism existed at the time that the events depicted in Baby Reindeer are set, the police response may have been different, given that these orders are civil in nature and carry less severe consequences than a criminal conviction.

However, despite this framework, the statistics suggest that there has been a significant drop in the number of SPOs being applied for.

In February 2022, the Government published a review of SPOs and concluded that they ‘seem to be working well’, with a ‘promising’ number of orders being granted in 2020-21. This was based on a total number of 436 interim and full SPOs being granted. However, more recent analysis by the BBC shows a 31% drop in those actually applied for between 2020 and 2022. In the year ending March 2023, the Suzy Lamplugh Trust found that, across 12 police forces, fewer than 10 SPOs were applied for in each. 

A similar drop can be seen in the number of recorded stalking reports that result in charges, dropping from 37% in 2014-15, down to 11% in 2020-21, and then to just 6% in 2021. In the year ending March 2023, only 1.7% of stalking complaints resulted in a conviction.

Statistics show that a third of cases are dropped due to evidential difficulties, and a further half of all cases do not proceed because the victim does not support the action being taken by police. Campaigners who have launched the super-complaint argue that the reason reports of stalking are not being properly investigated as is because the police mistakenly believe that there is not enough evidence to take action.

There is no simple answer to why the legal framework has not been more successful in practice. Several factors will lead to a report resulting in a charge: the level of available resources, an understanding about what constitutes stalking, and whether there actually is sufficient evidence available. The CPS will always be required to apply the ‘Full Code’ test to any decision to charge an individual with stalking.

Recent developments

On 22 April 2024, the Government announced plans to lower the standard of proof required for the police to successfully apply for an SPO to the civil standard (i.e. balance of probabilities), which should mean that they are now easier to obtain.

Further, on 1 October 2024, the offence of Public Sexual Harassment will come into force. The Minister for Victims and Safeguarding suggests that these measures are intended to help victims access necessary protection more easily by lowering the evidential barriers needed to obtain immediate protection, and by widening the options available to investigators at the point of charge.

How we can help

We understand that stalking investigations can feel stressful and uncertain, whether you’re the person experiencing it or it’s something you’ve been accused of.

If you are a victim of stalking and are hoping to have an SPO made, we can provide discreet advice and assistance in preparing an evidential package that you can provide to the police, to maximise the chances of the application being made quickly.

Equally, if you have reported an incident of stalking to the police and are unhappy with the outcome, we can advise on what options are available to you to press for urgent action.

Alternatively, if you or someone you know has been accused of stalking and are seeking advice or representation, our criminal defence team can assist. We offer a full service, covering any initial engagement with the police, right through to a full criminal trial, if stalking charges are pursued by the Crown Prosecution Service.

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