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Offences for stalking offences in common law

A.Aisha

Offences for stalking offences are thought to be inappropriately covered by the criminal law. The crimes that exist in common law and within statute are the following.

1.The Common Law – Public Nuisance

Public nuisance is the committal of an offence that causes obstruction and inconvenience that affects all (her) Majesty’s subjects.

(a)Obstruction and Inconvenience

The notion of there being obstruction and inconvenience was defined as early as the eighteenth century[1] and examples include, the discharge of crude oil into the sea and washing up on the shore[2], the creation of excessive noise[3], obstructing the highway[4], cremating a body in a conspicuous place[5] and making obscene phone calls to women[6].

(b)To effect all the Majesty’s servants[7]

Lord Denning states in A-G Quarries[8]:

“…a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large…[9]

In the current case, Aisha’s persistent calls mostly resemble the facts of R v Johnson[10] although the nature of the persistent calls as obscene is unknown. However, while the requirement of obstruction and inconvenience could be ascertained given a more detailed analysis of the facts, the crime must be aimed at the public and this is clearly not the case in the present circumstance between Aisha and Devinder where Devinder is the only[11]. Public nuisance therefore does not apply.

2.Statutorily Indictable Offences

(a)Offences Against the Person Act 1861

Sections 20 and 47 of the Offences Against the Person Act 1861 deal with the crime of assault. Section 20 stipulates that it is an offence to maliciously inflict grievous bodily harm and section 47 states that the occasioning of actual bodily harm was also unlawful.

In the case of R v Constanza[12], which concerned a man making silent telephone calls, writing over 800 letters and following he victim home, the court stated that the main issues were whether there is an immediate fear of violence and, crucially that assault does not have to amount to violence but could be committed by words alone. This was further emphasised in the cases of R v Ireland and R v Burstow[13], which also involved persistent telephone calls. Lord Steyn stated that:

“The spectre of the caller arriving at her doorstep bent on inflicting personal violence on her may come to dominate her thinking…[14]

Here the two key issues were whether psychiatric illness could amount to bodily harm in accordance with s 47 of the 1861 Act and the court answered this in the affirmative[15]. The second issue was whether the conduct was capable of amounting to assault. Swinton Thomas LJ also answered thin in the affirmative by stating that:

“it has been recognised for many centuries that putting a person in fear may amount to an assault. The early cases predate the invention of the telephone. We must apply the law to conditions as they are in the 20th century…[16]

In the current case between Aisha and Devinder it is categorically stated that Devinder is suffering from psychological trauma which that the conduct is capable of amounting to assault although more details on the facts would have need to be ascertained in order to be sure that Devinder is also fearing assault.

(b)Protection from Harassment Act 1997

Section 1(1)(a) of the Protection from Harassment Act 1997 states that a person may not pursue a course of conduct which amounts to harassment of another. In addition s 1(1)(b) states that the mens rea is satisfied where the perpetrator knew or ought to have known that the conduct amounts to harassment. This offence is however qualified by s 4(1) in that there has to have been at least two occasions in which fear is instilled in the victim[17].

In the present case there have been far more than two occasions, and the effect that the harassment has had on Devinda clearly means that the constructive mens rea of s 1(1)(b) and s 4(1) can be attributed Aisha. The only issue is that it is unclear as to whether Devinda feared that violence would be used against him and further examination of the facts will be required.

3.Summary Statutory Offences

Section 43(1) of the Telecommunications Act 1984 states that it is an offence to make indecent or obscene phone calls that result in distressing the victim. The same offence is constituted in the writing of letters under section 1(1) of the Malicious Communications Act 1988.

Once again the presence of indecency needs to be ascertained for the current case in order to attribute this crime to Aisha.

There are also three offences under ss 4(1), 4A and 5 of the Public Order Act 1986. Once again, it will be necessary to ascertain whether the words used by Aisha were threatening, abusive or insulting but the advantage is that intent is wholly irrelevant in order to be guilty[18].

BDevinder

Consensual acts of sado-masochism were deemed to be unlawful in the case of R v Brown[19], which involved violent acts between to gay men. The main issue was that of public interest and to that effect, Lord Lane CJ stated:

“One cannot overlook the danger that the gravity of the assaults and injuries in this type of case may escalate to even more unacceptable heights.[20]

The court was bound by this decision in the case of R v Wilson[21] and, in Laskey, Jaggard and Brown v United Kingdom[22], it was contended in the European Court of Human Rights that this stance on sado-masochistic acts did not constitute a breach of Article 8 of the ECHR as it fell within the state interference clause of Article 8(2), whereby the qualification was ‘necessary in a democratic society.[23]

The facts in Brown and the current situation between Aisha and Devinder are in point and no other conclusion can be drawn other than the fact that Devinder is guilty of assault regardless of the presence of consent from Aisha.

Bibliography

Legislation

European Convention on Human Right and Fundamental Freedoms

Offences Against the Person Act 1861

Telecommunications Act 1984

Public Order Act 1986

Malicious Communications Act 1988

Protection from Harassment Act 1997

Case Law

White and Ward (1757) 1 Burr

Petroleum Co Ltd [1954] 2 QB 182

A-G v PYA Quarries Ltd [1957] 2 QB 169

Shorrock [1994] QB 279

DPP v Jones [1999] 2 All ER 257

Price (1884) 12 QBD 247

R v Johnson (1996) 2 Cr App R 434

Madden [1975] 3 All ER 155

R v Constanza [1997] 2 Cr.App.R.492

R v Burstow [1997] QB 114

R v Chan-Fook [1994] 1 WLR 689

D.P.P. v Ramos [2000] Crim.L.R.768

R v Cox [1998] CrimL.R.810

Masterson v Holden [1986] 3 All ER 39

R v Brown [1994] 1 AC 212

R v Donovan [1934] 2 KB 498

R v Wilson [1996] 3 WLR 125

Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39

Text Book Publications

Smith & Hogan, 2002, Criminal Law, Butterworths, 10th edition

Blackstone’s Commentaries, iii 216

Dine, J and Gobert, J, 2003, Cases and Materials on Criminal Law, Oxford University Press, 4th edition

1


Footnotes

[1] White and Ward (1757) 1 Burr, referred to in Smith & Hogan, 2002, Criminal Law, Butterworths, 10th edition, at p 772

[2] See Esso Petroleum Co Ltd [1954] 2 QB 182, at 187

[3] A-G v PYA Quarries Ltd [1957] 2 QB 169. See also Shorrock [1994] QB 279

[4] DPP v Jones [1999] 2 All ER 257

[5] Price(1884) 12 QBD 247

[6] R v Johnson (1996) 2 Cr App R 434

[7] Blackstone’s Commentaries, iii 216, See also White and Ward supra note

[8] supra note 3

[9] ibid at p 181

[10] supra note 6

[11] To illustrate the strictness of the requirement to effect the Majesty’s subjects, see Madden [1975] 3 All ER 155 where 8 security guards was deemed not to be an efficient number to constitute the Majesty’s subjects.

[12] [1997] 2 Cr.App.R.492

[13] [1997] QB 114

[14] supra note 13 at p 116

[15] The Court followed R v Chan-Fook [1994] 1 WLR 689

[16] supra note 13 at p 118

[17] For reference in case law, see D.P.P. v Ramos [2000] Crim.L.R.768 and R v Cox [1998] CrimL.R.810

[18] Smith & Hogan, supra note 1 at p 767-768, see also Masterson v Holden [1986] 3 All ER 39

[19] [1994] 1 AC 212, the case followed R v Donovan [1934] 2 KB 498

[20] supra note at p 217

[21] [1996] 3 WLR 125

[22] (1997) 24 EHRR 39

[23] ECHR, Art 8(2)


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