CRIMINAL LEGAL PROBLEM SOLVING QUESTION

Criminal Legal Problem Solving Question

Criminal Legal Problem Solving Question

Referring to the case scenario Tess is liable for causing mental stress and injury to Damien Belinda and Angel. A sexual misuse embraceing a range of conduct and its impact on Angel became a cause of distress and fear.

Obviously if the stalking behaviour leads to physical attack upon the victim a prosecution for the appropriate offence against the person will be appropriate. In several recent cases involving persistent stalking behaviour, however, prosecutions for offences against the person have been brought on the basis that the stalking behaviour has impaired the victims' health. Such prosecutions provide the courts with opportunities to impose fairly severe prison sentences. (Lingg, R 2000 Pp. 12)

Where a person stalks someone in public there are several offences under the Public Order Act 1986 which could be utilised. Under s 4 a person is guilty of an offence if, inter alia, he "uses towards another person threatening, abusive or insulting words or behaviour...with intent to cause that person to believe that immediate unlawful violence will be used against him,...or whereby that person is likely to believe that such violence will be used" and under s 6(3) he "intends his words or behaviour...to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting".Thus it would have to be proved that the stalker (1) intended his behaviour to be threatening, or was reckless thereto, and (2) either (a) intended thereby to cause the victim to fear immediate violence or (b) it must have been likely that the victim would have believed such violence would be used.

The first part of intent to threaten would require proof of a purpose in the words of Lush J "of intimidating or overcoming the will of the person to whom it is addressed Wood v Bowron (1866) LR 2 QB 21. In the case of the obsessional stalker his purpose may be to compel the victim to do or abstain from doing something while in the case of those who stalk following the breakdown of a relationship the purpose often is to compel the victim to return to that relationship; in both cases this element of the offence could potentially be established.

In the case of (2)(a) it may be easier to establish this intent where there has been a previous relationship which has involved abuse but this is not crucial as (2)(b) is obviously objective in nature and a jury may readily find that it was likely that the person stalked would fear immediate violence. As the point of focus here is the person threatened (Loade v DPP [1990] 1 QB 1052), the more timorous that person is the easier it will be for the prosecution to establish that s/he was likely to believe violence would be used.

Criminalization of behaviour which falls within the ambit of stalking, remains an option. The offences which may be used at present to deal with this problem ...