The stalking offence was created by S.39 of the Criminal Justice and Licensing (Scotland) Act 2010.
Stalking is defined as a course of conduct which causes fear or alarm. It is essential that for the crime to be committed that the accused has behaved in this manner, either to intentionally cause fear or alarm, or in circumstances where they ought to have known that such behaviour would be likely to cause the individual targeted, to suffer from fear or alarm.
'Course' is defined as conduct occurring at least on two occasions. 'Conduct' is defined very broadly and includes spying, following, leaving anything for someone, emailing, texting, telephoning and acting in a way that a reasonable person would expect would cause the victim fear or alarm.
Richard Freeman (AKA Mr. Technicality) is one of Scotland's most prominent Solicitor Advocates with the skills, decades of experience and technical expertise to vigorously defend your position. Its important to enlist the services of an expert defence lawyer with a strong track record such as Mr. Freeman.
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It is a defence to show that the course of conduct was, in the particular circumstances reasonable. It is surprising how often this defence can be successfully invoked by a client.
Very often an offence can be successfully defended based on a lack of evidence to establish any of the essential ingredients highlighted above.
The prosecution can however fall back on s38 of the same Act. This covers more general behaviour that does not require a course of conduct. It can simply amount to behaviour committed on one occasion, which is likely to have caused a reasonable person fear and alarm, where the behaviour is threatening or abusive in nature.
As can be seen from the two definitions, although there is a considerable overlap between the two offences, there are also subtle nuances which can be argued favourably, when defending these charges.
The more frequently charged offence of the two is the S38 contravention, as it does not require a course of conduct, and is triggered when someone?s behaviour is abusive or threatening, causing a reasonable person fear and alarm. This can include for example, shouting and swearing either in public (which can also be charged as a breach of the peace) or in private. It can be committed over the telephone (which can also amount to a separate offence under the Telecommunications Act 2003 s127(1) ), or by email, or by use of any social media platforms.
The prosecutor must prove in every case, that the accused either intended to cause fear or alarm, or was reckless as to whether it would cause such fear or alarm.
Also, if a witness claims that he or she found the accused?s behaviour to be threatening, the prosecution still require to show that a reasonable person would have found the behaviour to be threatening, before they would be able to prove the offence. The test is therefore an objective test and does not depend on how the victim was affected by the behaviour.
Typical behaviour that is most often prosecuted under a s38 charge are:
These cases have been the subject of many appeals over the years, seeking the Appeal Court to clarify and interpret various types of activity and to assist in defining the tests to be applied. This has resulted in numerous written reported cases which are binding from the High Court. Criminal Defence Solutions have defended thousands of stalking and s38 offences for private clients across Scotland. We are acutely aware of every subtle difference to each case, and the way in which that can make all the difference to securing an acquittal.
We are happy to provide you with a free consultation to advise you of the best strategy to attack any such charges that you might end up having to defend.
Contact us now for an initial free consultation with one of our lawyers at Criminal Defence Solutions.