The Protection from Harassment Act was rushed through leaving grey areas vulnerable to argument, writes Roger Pearson.
Anti-stalking laws have been under the microscope in the High Court in a case which has brought some judicial clarification, but which has also left the door wide open for further legal challenge.
The case centred on definition of what amounts to a "course of conduct" referred to in the Protection from Harassment Act 1997.
In February this year, Nottingham stipendiary magistrate Peter Nuttall found Michael Williams guilty of pursuing a course of conduct which he should have known amounted to harassment. Williams received a 12-month conditional discharge and was made the subject of a restraining order.
In an appeal, however, Nottingham-based counsel Steve Gosnell instructed by Roger Wilson of Nottingham firm Jackson Quinn, argued that what Williams had done could not be classed as a "course of conduct".
Two separate incidents had led to Williams' prosecution. On 16 February this year, as a female occupant of a premises in Nottingham was having a shower, Williams put his hand through the bathroom window. The woman screamed and another occupant of the premises, Kristina Lloyd, went into the bathroom. However, Williams had disappeared.
Two days later, Lloyd called the police after she saw Williams on the roof outside looking in through the bedroom window.
The magistrate took the view that the women were members of a close-knit definable group, that they were both residents in the property and that, although she did not see Williams on the first occasion, Lloyd had been "distressed" by what happened. He said that, in those circumstances, Williams' actions amounted to a "course of conduct" in the eyes of the law.
However, it was argued for Williams that the two separate incidents involved two different women and could not be classified as a "course of conduct" for the purposes of the 1997 Act.
Roger Wilson says that he believes, as was argued in court, that Williams was prosecuted under the wrong Act. He considers that he should instead have been prosecuted for two separate offences under the Public Order Act 1986. But in the High Court, Lord Justice Rose, sitting with Mr Justice Bell, dismissed the challenge to the convictions.
He said the court was satisfied Lloyd had been alarmed and distressed by both incidents. Even though she had not seen Williams on the first occasion, she had been present and that brought Williams' actions into the ambit of a "course of conduct".
However, the court left little doubt that, as Roger Wilson predicts, the points raised in this case are not likely to go away and will be the subject of future argument.
Lord Justice Rose said the Crown Prosecution Service had argued that, on the basis of the argument put forward on behalf of Williams, hypothetically, if a defendant pursued a course of conduct against a nurses' home with 50 rooms, performing acts at 50 separate windows with 50 separate occupants, he would have committed no offence under the Act.
It would only be if he repeated his actions for a second time against one of those occupants that "course of conduct" requirements would be satisfied.
Roger Wilson says: "I think there will inevitably be other appeals on this type of evidence. In my opinion the High Court has probably already extended the ambit of the 1997 Act in this decision. But the case has still left a grey area which needs greater clarification than has been given.
"The Act is not considered to be well worded and was in some ways a piece of legislation that was rushed in."