Criminal Justice and Licensing (Scotland) Act 2010 (asp 13)

PART 2 S CRIMINAL LAW

Stalking S

39 Offence of stalking S

(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).

(2) For the purposes of subsection (1), A stalks B where—

(a) A engages in a course of conduct,

(b) subsection (3) or (4) applies, and

(c) A's course of conduct causes B to suffer fear or alarm.

(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear or alarm.

(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.

(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—

(a) was authorised by virtue of any enactment or rule of law,

(b) was engaged in for the purpose of preventing or detecting crime, or

(c) was, in the particular circumstances, reasonable.

(6) In this section—

• “conduct” means—

  (a)

  following B or any other person,

  (b)

  contacting, or attempting to contact, B or any other person by any means,

  (c)

  publishing any statement or other material—

  (i)

  relating or purporting to relate to B or to any other person,

  (ii)

  purporting to originate from B or from any other person,

  (d)

  monitoring the use by B or by any other person of the internet, email or any other form of electronic communication,

  (e)

  entering any premises,

  (f)

  loitering in any place (whether public or private),

  (g)

  interfering with any property in the possession of B or of any other person,

  (h)

  giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,

  (i)

  watching or spying on B or any other person,

  (j)

  acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and

• “course of conduct” involves conduct on at least two occasions.

(7) A person convicted of the offence of stalking is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(8) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—

(a) is not satisfied that the accused committed the offence, but

(b) is satisfied that the accused committed an offence under section 38(1).

(9) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 38(1).

Commencement Information

I1 S. 39 in force at 13.12.2010 by S.S.I. 2010/413, art. 2, Sch.

[F1 39A Offence of stalking committed outside the United Kingdom S

(1) If—

(a) a person's course of conduct consists of or includes conduct in a country outside the United Kingdom,

(b) the course of conduct would constitute the offence of stalking if it occurred in Scotland, and

(c) the person is a United Kingdom national or is habitually resident in Scotland,

then the person commits that offence.

(2) If a person's course of conduct consists entirely of conduct in a country outside the United Kingdom—

(a) the person may be prosecuted, tried and punished for an offence of stalking by virtue of this section—

(i) in any sheriff court district in Scotland in which the person is apprehended or is in custody, or

(ii) in such sheriff court district as the Lord Advocate may determine,

as if the offence had been committed entirely in that district, and

(b) the offence is, for all purposes incidental to or consequential on trial or punishment, to be deemed to have been committed entirely in that district.

(3) In this section—

• “country” includes territory;

• “sheriff court district” is to be construed in accordance with section 307(1) of the Criminal Procedure (Scotland) Act 1995 (interpretation);

• “United Kingdom national” means an individual who is—

  (a)

  a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

  (b)

  a person who under the British Nationality Act 1981 is a British subject, or

  (c)

  a British protected person within the meaning of that Act.]

Textual Amendments

F1 S. 39A inserted (29.6.2021) by Domestic Abuse Act 2021 (c. 17), s. 90(6), Sch. 3 para. 6; S.S.I. 2021/239, reg. 2