Why stalkers are not all criminals

Stalkers - as demonstrated by recent events concerning personalities as varied as Madonna, the Princess of Wales, the Princess Royal and this week's young mother in Huntingdon - create immense difficulties for the law as well as distress to their prey.

Though the Cambridgeshire stalker did eventually attack his victim, typically stalkers stay off your property and do not approach you. Neither do they communicate with their targets. Consequently, that person has committed neither trespass nor assault, nor made malicious phone calls. He or she has not damaged your property. Neither a criminal offence nor a civil offence has been committed.

In fact, the stalker has simply exercised the fundamental right of using the public highway and public transport free from wrongful arrest and imprisonment.

The problem of stalking stretches our legal system to the limit. The criminal jurisdiction only applies in cases concerning assault, criminal damage, or nuisance telephone calls. In the absence of these ingredients the common law applies. The philosophy upon which this law is based is concerned with upholding the right of freedom of movement and choice.

The common law must therefore resolve the conflict between the rights of the stalker to exercise freedom on the one hand, and the right of the "victim" not to be subjected to a course of harassment on the other.

These difficulties are illustrated by the case of Bernard Quinn, who is an obsessive stalker of the Princess Royal. He recently appeared in Liverpool Magistrates' Court charged with the offence of behaviour likely to cause a breach of the peace. The case against him was put as follows. He is accustomed to shadowing the Princess Royal at many of her official engagements. His intention is to get into the close vicinity of the Princess. He is prepared to breach the security cordon in order to do so. When arrested he talked about the sexual fantasies that he had entertained about the Princess Royal.

The stipendiary magistrate decided Mr Quinn had no case to answer and dismissed the charge on the grounds that the criminal law had not been breached. Mr Quinn had been exercising his rights of freedom in public. He was quite entitled to attempt to breach the security cordon, provided he did not perpetrate an assault on a security officer nor cause anyone to fear that a violent incident might occur.

The decision was right. While there is no doubt that his obsession with the Princess Royal must cause her stress and concern, Mr Quinn's behaviour, at least in relation to the criminal jurisdiction, is lawful.

The decision to prosecute Mr Quinn was ill-conceived, and recourse should have been had to the common law. However, I do not wish to criticise the prosecuting authorities for this decision. It is arguable that the tort of harassment (which applies to obsessive stalkers) has only recently become an established tort and that it is no longer subsumed by the existing torts of nuisance and trespass. It was not until the 1993 Court of Appeal decision in Khorasandjin -v- Bush that harassment was recognised as a primary tort.

This was despite the dissenting dicta of Sir Peter Gibson, who held that as English law does not recognise the right of privacy, the tort of harassment or pestering cannot exist in common law. Even now this dissenting judgment is supported by the 1995 County Court Rules, which state that "there is no power at common law to grant an injunction restraining a defendant from entering an 'exclusion zone' outside the plaintiff's premises even when the action is for trespass coupled with a claim for an injunction against molestation".

An exclusion zone around the plaintiff's home or office is one of the most effective ways of protecting a victim against a stalker. Exclusion zone orders are commonly made under the 1983 Matrimonial Homes Act or the 1976 Domestic Violence and Matrimonial Proceedings Act, with the result that many ex-partners are forbidden to come within 200 yards of the former family home. However, such legislation only applies to the matrimonial or co-habitation relationship, and the orders have no force in common law.

Nevertheless, the common-law position was strengthened in July 1995 by the decision of the Court of Appeal in the case of Burris v Azadani, which centred on the validity of a 250-yard exclusion zone which Wandsworth County Court had placed around the plaintiff's house to protect her from Mr Azadani. He tested the order on two occasions when he was seen bicycling down the street where the plaintiff lived and passing within 20 yards of her house.

Although he did not try to make contact with her or commit an act of trespass, five days later he was sentenced to three months' imprisonment for contempt of court in breaching the order. In the Court of Appeal six days later, he founded his unsuccessful appeal broadly on the principles that he was exercising his freedom to travel along the public highway; Ms Burris had no interest capable of being protected in law as he had not perpetrated a trespass; and the County Court was wrong to impose an exclusion zone order at common law because it constituted a clear breach of the present County Court Rules.

Throughout his judgment the Master of the Rolls, Sir Thomas Bingham, refers to the doctrine of "legitimate interests" apparently distinguishing such interests from those which are or may be capable of being protected as a tort. In doing so, he was already adopting what might be described as a common sense approach as opposed to a legalistic view and his judgment is to be commended.

His Lordship defined "legitimate interests" in cases like this as the right of the victim to the court's protection against any behaviour "which may be highly stressful and disturbing to a plaintiff". In its decision the Court of Appeal made it clear that courts are entitled to adopt a "reconciliation of interests" test between the parties. The court considered that the restraining order was necessary for the protection of the plaintiff's legitimate interests, even though those interests might not normally attract the full protection of the law. (The right of privacy is only a relative right in English law and does not nominally ground a cause of action on its own.)

The Princess Royal could have founded a civil action under the tort of harassment. She could have limited her claim to applying for injunctions preventing Mr Quinn from either harassing or interfering with her public and private life.

It is not at present clear what powers the courts are prepared to exercise in these cases. Although Mr Quinn could be ordered not to come within the immediate vicinity of her residences or ordinary places of work, there was no chance to establish a principle regarding wider orders because the Quinn case was not brought before the civil courts. If it had been, the Princess Royal could have rendered a great service to the numerous victims of stalkers whose quality of life is seriously impaired and whose lives are often at risk of violence.

The author is a solicitor-advocate who opens his own firm tomorrow. He conducted the case of Burris v Azadani in the Court of Appeal.