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Deos the behaviour have to be unreasonable or does the behaviour have to cause distress in a reasonable person? These seem to be non-identical points, as I can point to instances where unreasonable behaviour would not cause distess in a reasonable person, but nevertheless causes distress (due to the vulnerability of the victim), and to reasonable behaviour that would cause distress in a reasonable person (due to the nature of some situations).

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The offence of stalking is found in the Protection From Harassment Act 1997. There are separate offences for "ordinary" stalking and stalking involving fear of violence / serious alarm / distress. I'll refer to these as S.2A stalking and S.4A stalking respectively. To establish either offence you first have to establish harassment.

Relevant legislation

Section 1 covers harassment:

(1) A person must not pursue a course of conduct — (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows — [...] (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Section 2A covers Stalking:

(1) A person is guilty of an offence if — (a) the person pursues a course of conduct in breach of section 1(1), and (b) the course of conduct amounts to stalking.

(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person's course of conduct amounts to stalking of another person if — (a) it amounts to harassment of that person, (b) the acts or omissions involved are ones associated with stalking, and (c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.

Section 4A covers stalking involving fear of violence or serious alarm or distress:

(1) A person (“A”) whose course of conduct — (a) amounts to stalking, and (b) either — (i) causes another (“B”) to fear, on at least two occasions, that violence will be used against B, or (ii) causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities, is guilty of an offence if A knows or ought to know that A's course of conduct will cause B so to fear on each of those occasions or (as the case may be) will cause such alarm or distress.

(2) For the purposes of this section A ought to know that A's course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.

(3) For the purposes of this section A ought to know that A's course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.

(4) It is a defence for A to show that — [...] (c) the pursuit of A's course of conduct was reasonable for the protection of A or another or for the protection of A's or another's property.

Analysis

The reasonableness test is applied in the following ways:

  • There is only harassment if the accused knew the course of conduct amounted to harassment or a reasonable person in the accused's shoes would think it amounted to harassment. Because harassment is a required element of stalking, none of the offences are committed if this test does not pass.
  • Even if the above test is passed there is still no harassment, and hence no stalking, if the course of action was reasonable.
  • If harassment is established, then there are no more "reasonableness" tests in relation to S.2A stalking.
  • If harassment is established, there is only S.4A stalking if the accused knew the course of conduct would cause fear/distress or a reasonable person in the accused's shoes would think it would cause fear/distress.
  • Even if the above test is passed there is still no S.4A stalking if the course of action was reasonable for the protection of a person or a person's property (including the accused).

Does the behaviour have to be unreasonable or does the behaviour have to cause distress in a reasonable person?

The behaviour has to be unreasonable, because if it was reasonable then the defence in Section 1(3) would apply and there would be no harassment and hence no stalking. This applies both to S.2A stalking and S.4A stalking.

However, the behaviour does not have to cause distress in a reasonable person. Distress is not a relevant element for S.2A stalking. For S.4A stalking, the test is whether a reasonable person in the accused's shoes would think that it would cause distress.

In other words, the reasonableness is applied firstly to the act itself, and secondly to the state of mind of the person carrying out the act.

However, the latter test is applied to the actual victim rather than to people generally. So what matters is whether a reasonable person would think the stalking would cause distress to the victim specifically.

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