Commentary on Sections Part 2 - Criminal Law Section 39 – Offence of stalking
184.This section creates an offence of ‘stalking’. Subsection (1) provides that a person (A) who stalks another person (B) commits an offence. Subsection (2) sets out what the elements of stalking are: that A stalks B where he engages in a course of conduct and either subsection (3) or subsection (4) applies and A’s course of conduct causes B to suffer fear or alarm.
185.Subsection (3) applies where A engages in a course of conduct with the intention of causing B to suffer fear or alarm.
186.Subsection (4) applies where A engages in a course of conduct which he knows, or ought in all the circumstances to know would be likely to cause B to suffer fear or alarm.
187.Subsection (5) provides for three defences to the offence. The first is that A’s actions were authorised by virtue of any enactment or rule of law. The second is that A engaged in the conduct for the purpose of preventing or detecting crime. The third is that the course of action was, in the particular circumstances, reasonable.
188.Subsection (6) provides for a definition of ‘conduct’ necessary for stalking. It provides that, for the purpose of the offence of ‘stalking’, a ‘course of conduct’ involves conduct on at least two occasions. A definition of ‘conduct’ is provided at subsection (6). It defines ‘conduct’ as any of the following:
	following B or any other person;
	contacting, or attempting to contact, B or any other person by any means;
	publishing any statement or other material which either relates to, or purports to relate to B or to any other person, or purports to originate from B or from any other person (for example, publishing on the internet derogatory or defaming material relating to B or to a third person such as B’s partner or child);
	monitoring the use by B or by any other person of the internet, email or any other form of electronic communication (for example, by installing spyware on their computer to enable their emails or internet use to be tracked);
	entering any premises (for example, B’s home or place of work, or the home or place of work of a member of B’s family);
	loitering in any place (whether public or private);
	interfering with any property in the possession of B or of any other person;
	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;
	watching or spying upon B or any other person; or
	acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm.
189.Subsection (7) provides that the maximum penalty on conviction on indictment is imprisonment for a term not exceeding 5 years or a fine or both, and the maximum penalty on summary conviction is imprisonment for a term not 1 year or a fine not exceeding the statutory maximum or both.
190.Subsection (8) and (9) together provide that, where, in the trial of a person charged with the offence of stalking, the court or jury is not satisfied that the accused committed the offence, but is satisfied that the accused committed an offence under section 38(1) of ‘threatening or abusive behaviour’, 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).