This article aims to highlight the absence of anti-stalking legislation in Singapore by outlining the stalking laws present in the UK.
A recent landmark ruling by the Singapore High Court allowed an injunction to be issued for the first time in a stalking case that had caused the victims emotional distress, not just physical harm.
The stalker had harassed his victims by way of e-mails, SMS texting, faxes, telephone calls and trespass. The indirect methods of stalking which were used have shed light on the inadequacies of Singapore legislation in dealing with not only the traditional forms of stalking, but also, in this day of continuing technological advancement, cyberstalking.
Stalking is not recognised as an offence in Singapore. It is merely an aspect of harassment, which is governed by s 13 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184). The Act, however, only goes so far as to offer victims protection from any person that causes them harassment, distress or alarm by using threatening, abusive or insulting words or behaviour.
Sections 13A and 13B of the Act state the following:
Section 13A
(1) Any person who in a public place or in a private place, with intent to cause harassment, alarm or distress to another person -
(a) uses threatening, abusive or insulting words or behaviour, or
(b) displays any writing, sign or visible representation which is threatening, abusive or insulting,
thereby causing that person or any other person harassment, alarm or distress, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.
Section 13B
(1) Any person who in a public place or in a private place -
(a) uses threatening, abusive or insulting words or behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of any person likely to be caused harassment, alarm or distress thereby shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.1
Other forms of legal redress under Singapore law involve pursuing a private summons or the application of the Criminal Procedure Code (Cap 68), which addresses threats of harm and trespass.2
However, neither one of these laws specifically addresses the problem of stalking or deals with those that are engaged in stalking and cyberstalking activities.
As the Honourable Lee Seiu Kin asserted: 'it was not an offence to utter the same words over a mobile phone or other forms of modern communication'. He went on further to say that 'this legal loophole, needed to be addressed'.3
There is no clear definition of cyberstalking, however, for the purposes of this article, it is a term used for the act of sending malicious, abusive, threatening or obscene messages through the internet, via e-mail.
The advent of the internet has created numerous possibilities for cybercrime, an example of which is cyberstalking. In the case of Lim Siong Khee v Public Prosecutor [2001] 2 SLR 342, the accused gained access to the victim's e-mail account after correctly guessing her password.
He then circulated dishonourable e-mails about the victim to her friends and colleagues, as well as stalked her with the use of information that he had retrieved from reading her e-mails. The accused began also to harass a friend of the victim after discovering that she had encouraged the victim to file a police report against him. He was convicted under s 3(1) of the Computer Misuse Act (Cap 50A) and sentenced to five months' imprisonment.
This was the first case of a conviction on the basis of unauthorised access to an e-mail account.
Section 3(1) states:
Any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or both and, in the case of a second or subsequent conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or both.4
This Act accords some protection from electronic harassment, however, it is under the guise of gaining access to a person's e-mail account without their permission. Again there is no specific reference to the act of 'stalking'.
Although there are no statistics available on the prevalence of stalking, it is a social problem that requires specific and effective legal remedies.
A health study has shown that almost half the doctors and health workers at the Institute of Mental Health have been stalked by patients. The stalkers loiter around the institute, make unwanted approaches, unsolicited phone calls and send letters, e-mails and faxes that are not required. One of the doctors involved in the study asserted that there was little the police could do if a person found himself being stalked.5
Psychiatrists in Britain have defined stalking 'as persistent, unwanted intrusions or communications that induce fear, usually taking place over several weeks'.6
British Anti-stalking Law
In the UK, stalking was labelled by the media as the crime of the 90s. The National Anti-Stalking and Harassment Campaign reported that between January 1994 and November 1995, 7,000 victims of stalking called their helpline.7
The landmark case concerning stalking in Britain, was the Court of Appeal case of Burris v Azadani [1995] 1 WLR 1372. It was in this case that stalking was recognised as a civil tort, therefore, allowing injunctions to be issued to prevent it.
The victim in this case was represented by Timothy Lawson-Cruttenden, who on recognising the inadequacies of the law in dealing with stalking, drafted the 'Stalkers Bill'. Although the Bill was not passed, it paved the way for the Protection from Harassment Act 1997.
With respect to criminal law, it was in the cases of R v Burstow & R v Ireland [1997] 3 WLR 534, that the House of Lords decided that stalkers who cause psychological injury to their victims can be prosecuted for the criminal offences of causing actual bodily harm or grievous bodily harm even where they have not physically attacked their victim.
In the case of Ireland, the defendant made repeated silent telephone calls to three women who suffered anxiety and depressive disorders as a result. He was convicted of assault occasioning actual bodily harm contrary to s 47 of the Offences Against the Person Act 1861 ('OAPA') and sentenced to three years' imprisonment. In the case of Burstow, the defendant was convicted of maliciously inflicting grievous bodily harm contrary to s 20 of the OAPA. Burstow waged a campaign of harassment against Tracy Slant during which he made abusive telephone calls to her, watched her house, stole her clothing from her washing line and scattered condoms in her garden.8
Therefore, as is the situation in Singapore now, it became obvious that English law did not adequately deal with the issue of stalking. It was eventually due to a great deal of public and political concern about stalking that the government introduced the Protection from Harassment Act 1997, which defined stalking in legal terms and made it a criminal offence.9
The Act creates two criminal offences as well as allows civil courts the authority to award damages and issue injunctions in harassment cases. The importance of the Act is, however, stated in s 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 the harassment of the other.10
Section 3(1) and (2) of the Act which provides for civil remedy states:
(1) An actual or apprehended breach of s 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.11
The Malicious Communications Act 1988, as amended by s 43 of the Criminal Justice and Police Act 2001, governs stalking by means of letters, telephone calls, the increasing problem of text and SMS messages being sent to mobile phones and e-mails through the internet.
As amended by s 43 of the Criminal Justice and Police Act, s 1 of the Malicious Communications Act now states the following:
(1) Any person who sends to another person
(a) a letter, electronic communication or article of any description which conveys;
(i) a letter which is indecent or grossly offensive
(ii) a threat or
(iii) information which is false and known or believed to be false by the sender or
(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
(2A) In this section 'electronic communication' includes
(a) any oral or other communication by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (cl 12)); and
(b) any communication (however sent) that is in electronic form.12
Section 43 of the Telecommunications Act treats the improper use of the public telecommunications system as an offence. The offence can be committed by a person who makes: (a) calls of a 'grossly offensive or of an indecent, obscene, or menacing character'; or (b) persistent calls 'for the purpose of causing annoyance, inconvenience or needless anxiety to another'.13
Britain's main provider of telecommunications, British Telecom, in recognising the seriousness of malicious and nuisance calls, have set up a victims' 24-hour helpline.14
Additional support and guidance in the problem of stalking have also been produced in the form of a guide for the Metropolitan police, Stalking. An Investigator's Guide.
Conclusion
Unfortunately, the mental health study carried out in Singapore reflects the fact that the solution to the problem of stalking does not lie in anti-stalking legislation alone. In his article, 'Look Who's Stalking: Seeking a Solution to the Problem of Stalking', Michael J Allen states that 'the psychology of many stalkers may not be amenable to change and thus their behaviour may continue regardless of the punishment imposed on them'.
Singapore should, however, learn from Britain and move towards implementing police and telephone support systems in an attempt to advise victims of stalkers, while the issue of anti-stalking legislation is hopefully being addressed. In the absence of effective legal protection for victims, guidelines detailing precautions for safety must be made available.
Deepa Bhabutta
Endnotes
1 See Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184).
2 See Criminal Procedure Code (Cap 68) Sch A, Tabular Statements of Offences Under the Penal Code.
3 See The Straits Times, 19 October 2001.
4 See Computer Misuse Act 1993 (Cap 50A).
5 See The Straits Times, 15 October 2001.
6 See 'Inside the Mind of a Stalker', The Times, 28 January 2000.
7 See L Ellison & Y Akdeniz, 'Cyberstalking: The Regulation of Harassment On the Internet' [1998] Criminal Law Review, December Special Edition: Crime, Criminal Justice and the Internet; see also Home Office (1996), op cit.
8 See endnote 5 and R v Ireland & R v Burstow [1997] 3 WLR 534.
9 See www.legislation.hmso.gov.uk/ acts.
10 See Neil Addison at www.harassment-law.co.uk/ stalk.htm.
11 See endnote 8.
12 See endnote 8.
13 See Michael
http://www.lawgazette.com.sg/2002-2/Feb02-feature2.htm
A recent landmark ruling by the Singapore High Court allowed an injunction to be issued for the first time in a stalking case that had caused the victims emotional distress, not just physical harm.
The stalker had harassed his victims by way of e-mails, SMS texting, faxes, telephone calls and trespass. The indirect methods of stalking which were used have shed light on the inadequacies of Singapore legislation in dealing with not only the traditional forms of stalking, but also, in this day of continuing technological advancement, cyberstalking.
Stalking is not recognised as an offence in Singapore. It is merely an aspect of harassment, which is governed by s 13 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184). The Act, however, only goes so far as to offer victims protection from any person that causes them harassment, distress or alarm by using threatening, abusive or insulting words or behaviour.
Sections 13A and 13B of the Act state the following:
Section 13A
(1) Any person who in a public place or in a private place, with intent to cause harassment, alarm or distress to another person -
(a) uses threatening, abusive or insulting words or behaviour, or
(b) displays any writing, sign or visible representation which is threatening, abusive or insulting,
thereby causing that person or any other person harassment, alarm or distress, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.
Section 13B
(1) Any person who in a public place or in a private place -
(a) uses threatening, abusive or insulting words or behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of any person likely to be caused harassment, alarm or distress thereby shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.1
Other forms of legal redress under Singapore law involve pursuing a private summons or the application of the Criminal Procedure Code (Cap 68), which addresses threats of harm and trespass.2
However, neither one of these laws specifically addresses the problem of stalking or deals with those that are engaged in stalking and cyberstalking activities.
As the Honourable Lee Seiu Kin asserted: 'it was not an offence to utter the same words over a mobile phone or other forms of modern communication'. He went on further to say that 'this legal loophole, needed to be addressed'.3
There is no clear definition of cyberstalking, however, for the purposes of this article, it is a term used for the act of sending malicious, abusive, threatening or obscene messages through the internet, via e-mail.
The advent of the internet has created numerous possibilities for cybercrime, an example of which is cyberstalking. In the case of Lim Siong Khee v Public Prosecutor [2001] 2 SLR 342, the accused gained access to the victim's e-mail account after correctly guessing her password.
He then circulated dishonourable e-mails about the victim to her friends and colleagues, as well as stalked her with the use of information that he had retrieved from reading her e-mails. The accused began also to harass a friend of the victim after discovering that she had encouraged the victim to file a police report against him. He was convicted under s 3(1) of the Computer Misuse Act (Cap 50A) and sentenced to five months' imprisonment.
This was the first case of a conviction on the basis of unauthorised access to an e-mail account.
Section 3(1) states:
Any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or both and, in the case of a second or subsequent conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or both.4
This Act accords some protection from electronic harassment, however, it is under the guise of gaining access to a person's e-mail account without their permission. Again there is no specific reference to the act of 'stalking'.
Although there are no statistics available on the prevalence of stalking, it is a social problem that requires specific and effective legal remedies.
A health study has shown that almost half the doctors and health workers at the Institute of Mental Health have been stalked by patients. The stalkers loiter around the institute, make unwanted approaches, unsolicited phone calls and send letters, e-mails and faxes that are not required. One of the doctors involved in the study asserted that there was little the police could do if a person found himself being stalked.5
Psychiatrists in Britain have defined stalking 'as persistent, unwanted intrusions or communications that induce fear, usually taking place over several weeks'.6
British Anti-stalking Law
In the UK, stalking was labelled by the media as the crime of the 90s. The National Anti-Stalking and Harassment Campaign reported that between January 1994 and November 1995, 7,000 victims of stalking called their helpline.7
The landmark case concerning stalking in Britain, was the Court of Appeal case of Burris v Azadani [1995] 1 WLR 1372. It was in this case that stalking was recognised as a civil tort, therefore, allowing injunctions to be issued to prevent it.
The victim in this case was represented by Timothy Lawson-Cruttenden, who on recognising the inadequacies of the law in dealing with stalking, drafted the 'Stalkers Bill'. Although the Bill was not passed, it paved the way for the Protection from Harassment Act 1997.
With respect to criminal law, it was in the cases of R v Burstow & R v Ireland [1997] 3 WLR 534, that the House of Lords decided that stalkers who cause psychological injury to their victims can be prosecuted for the criminal offences of causing actual bodily harm or grievous bodily harm even where they have not physically attacked their victim.
In the case of Ireland, the defendant made repeated silent telephone calls to three women who suffered anxiety and depressive disorders as a result. He was convicted of assault occasioning actual bodily harm contrary to s 47 of the Offences Against the Person Act 1861 ('OAPA') and sentenced to three years' imprisonment. In the case of Burstow, the defendant was convicted of maliciously inflicting grievous bodily harm contrary to s 20 of the OAPA. Burstow waged a campaign of harassment against Tracy Slant during which he made abusive telephone calls to her, watched her house, stole her clothing from her washing line and scattered condoms in her garden.8
Therefore, as is the situation in Singapore now, it became obvious that English law did not adequately deal with the issue of stalking. It was eventually due to a great deal of public and political concern about stalking that the government introduced the Protection from Harassment Act 1997, which defined stalking in legal terms and made it a criminal offence.9
The Act creates two criminal offences as well as allows civil courts the authority to award damages and issue injunctions in harassment cases. The importance of the Act is, however, stated in s 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 the harassment of the other.10
Section 3(1) and (2) of the Act which provides for civil remedy states:
(1) An actual or apprehended breach of s 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.11
The Malicious Communications Act 1988, as amended by s 43 of the Criminal Justice and Police Act 2001, governs stalking by means of letters, telephone calls, the increasing problem of text and SMS messages being sent to mobile phones and e-mails through the internet.
As amended by s 43 of the Criminal Justice and Police Act, s 1 of the Malicious Communications Act now states the following:
(1) Any person who sends to another person
(a) a letter, electronic communication or article of any description which conveys;
(i) a letter which is indecent or grossly offensive
(ii) a threat or
(iii) information which is false and known or believed to be false by the sender or
(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
(2A) In this section 'electronic communication' includes
(a) any oral or other communication by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (cl 12)); and
(b) any communication (however sent) that is in electronic form.12
Section 43 of the Telecommunications Act treats the improper use of the public telecommunications system as an offence. The offence can be committed by a person who makes: (a) calls of a 'grossly offensive or of an indecent, obscene, or menacing character'; or (b) persistent calls 'for the purpose of causing annoyance, inconvenience or needless anxiety to another'.13
Britain's main provider of telecommunications, British Telecom, in recognising the seriousness of malicious and nuisance calls, have set up a victims' 24-hour helpline.14
Additional support and guidance in the problem of stalking have also been produced in the form of a guide for the Metropolitan police, Stalking. An Investigator's Guide.
Conclusion
Unfortunately, the mental health study carried out in Singapore reflects the fact that the solution to the problem of stalking does not lie in anti-stalking legislation alone. In his article, 'Look Who's Stalking: Seeking a Solution to the Problem of Stalking', Michael J Allen states that 'the psychology of many stalkers may not be amenable to change and thus their behaviour may continue regardless of the punishment imposed on them'.
Singapore should, however, learn from Britain and move towards implementing police and telephone support systems in an attempt to advise victims of stalkers, while the issue of anti-stalking legislation is hopefully being addressed. In the absence of effective legal protection for victims, guidelines detailing precautions for safety must be made available.
Deepa Bhabutta
Endnotes
1 See Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184).
2 See Criminal Procedure Code (Cap 68) Sch A, Tabular Statements of Offences Under the Penal Code.
3 See The Straits Times, 19 October 2001.
4 See Computer Misuse Act 1993 (Cap 50A).
5 See The Straits Times, 15 October 2001.
6 See 'Inside the Mind of a Stalker', The Times, 28 January 2000.
7 See L Ellison & Y Akdeniz, 'Cyberstalking: The Regulation of Harassment On the Internet' [1998] Criminal Law Review, December Special Edition: Crime, Criminal Justice and the Internet; see also Home Office (1996), op cit.
8 See endnote 5 and R v Ireland & R v Burstow [1997] 3 WLR 534.
9 See www.legislation.hmso.gov.uk/ acts.
10 See Neil Addison at www.harassment-law.co.uk/ stalk.htm.
11 See endnote 8.
12 See endnote 8.
13 See Michael
http://www.lawgazette.com.sg/2002-2/Feb02-feature2.htm
No comments:
Post a Comment