ANTI-STALKING campaigners are to take calls for a tightening up of court procedure and non-harassment order legislation to one of Scotland's most senior law officers.
Best-selling author Janice Galloway is supporting the move to approach the Solicitor General for Scotland after her ex-lover Graeme McNaught escaped conviction for harassment because of mental health issues following an examination by two psychiatrists.
He was later not considered suitable for a supervision and treatment order because psychiatric staff did not recommend it as he was responding to voluntary treatment.
Ann Moulds of Action Scotland Against Stalking, who fought a long and hard campaign for change in anti-stalking laws, is concerned that the current system has allowed the human rights of the defendant to come ahead of those of the victim and says the law needs to be changed so that courts have the option to issue non-harassment orders even if there is no conviction.
"The system has failed her (Janice Galloway) and needs to change," she said. "It is an absurd situation."
The case has caused political and legal uproar, and the Crown Office and Scottish Government are working together to see if laws surrounding stalking and harassment need to be adjusted. Mr McNaught of Mount Vernon, Glasgow, faced five charges of acting in a threatening and abusive manner and placing Ms Galloway, the author of novels such as The Trick is to Keep Breathing and Foreign Parts, in a state of fear and alarm.
The former Royal Conservatoire of Scotland lecturer was found by the sheriff to have carried out the acts, but escaped conviction, any punishment and any court-imposed orders.
A trial was halted for Mr McNaught to be medically examined, and two psychiatrists were both of the opinion he was unfit to continue due to mental health issues.
The court took into account Section 54 of the Criminal Procedure (Scotland) Act 1995, which provides that where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged "is so insane that his trial ... cannot continue, the court shall discharge the trial ... and order that a diet (an examination of facts) be held".
A finding following an examination of facts is not considered to be a conviction and it is understood the court felt there were then no powers to issue a non-harassment order.
Instead the sheriff had to rely on section 57(2) of the 1995 Act, which states the court may make a number of orders, including a supervision and treatment order, a compulsion order requiring detention in hospital or a guardianship order.
To decide how to conclude the case, the court obtained two psychiatric reports and a mental health officer's assessment.
According to the Act, the court cannot make a supervision and treatment order unless it has evidence from two doctors that the "mental condition of the person ... is such as requires and may be susceptible to treatment".
None of the reports submitted recommended the use of a supervision and treatment order or any other section 57 order.
It is understood part of the reasoning was that medical practitioners said Mr McNaught was already subject to, and responding to, voluntary treatment. It was further felt the providers of the treatment had powers available to them under existing Mental Health legislation if they detected any deterioration in the accused's mental condition.
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