There appears to be something amiss with the legal process when it comes to stalking offences in Scotland.
The former lover of writer Janice Galloway, Graeme McNaught, was found in court to have acted in a threatening and abusive way towards the author. In spite of this, Crown requests that he be put under a court order not to contact Ms Galloway were turned down. On Monday, he was told he would face no further punishments.
According to Ms Galloway, McNaught was turned away from her home and police called that night.
The author understandably feels "extremely let down". She had reached the end of a stressful court process in which her former partner was found to have carried out a series of offences, only to find that the sheriff was unable to grant a non-harassment order that could protect her from further contact with McNaught. In 2010, a new law of stalking was enacted in Scotland which was supposed to put victims first. This case suggests it is not always working out that way.
The problem appears to lie with the legal process. McNaught, in spite of being found to have committed the acts, was not actually convicted of them, his trial having been halted earlier due to concerns about his mental health. The sheriff's hands were therefore tied. He explained that a non-harassment order may only be made if there is a conviction. Psychiatric reports ruled that there was no need for an order; Ms Galloway fervently disagrees.
The distress caused by stalking can be extremely debilitating. At best, a stalker is a nuisance; at worst, stalkers can put their targets into a near permanent state of anxiety, fearing for their own safety and that of their loved ones. Scotland's updated stalking law was intended to ensure that victims would have better protection against stalkers. Previously, stalking had been prosecuted as a breach of the peace which was required to have a "public element". That is no longer sufficient in the social media age when harassment may be by text message and email. Now a wider range of behaviour falls within the law.
Yet clearly, in some respects, the law is not working as it should. The best interests of the victim have not been served by the unsatisfactory outcome of this case. How many other people have found themselves in a similar position, wonders Ms Galloway? She is right to ask.
It is vital to ascertain how widespread the problem is and how it can be rectified. Therefore, the Crown Office's review and consideration of any "legislative gaps" is to be welcomed.
This is not the only occasion that the functioning of Scotland's stalking laws has come under scrutiny. Concerns were raised last year about the relatively low conviction rate. By October last year, fewer than one-third of people reported under the new regime had been convicted. As MP Sandra Osborne said at the time, the relatively low conviction rates for stalking appeared similar to those of crimes of violence against women. Still, there has been a big improvement in Scotland's approach to stalking.
Even so, this latest case shines a light on its shortcomings. Victims of stalking have a right to live in peace, not under a perpetual cloud of anxiety and fear. A full examination of the perpetrator's mental health will be essential in many cases and must, of course, be taken into account by sheriffs but a better balance must be found between the humane treatment of these troubled individuals and the need to protect their victims from the threat of further harassment.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article