Experts demand change in law to stop jailed sex offenders using the legal system to create more distress
Convicted murderers, rapists and stalkers are pursuing their victims through the family and civil courts via legal actions that are often funded by the public purse, say experts who are demanding an urgent change in the law.
Napo, the probation officers' union, and the charity Protection Against Stalking (Pas) warn that the system leaves victims open to psychological abuse and can exacerbate their trauma. They are concerned that the rights of perpetrators are being put before those of their victims.
The union has produced a dossier of 33 cases highlighting how men convicted of serious offences have exploited the legal system to instil fear in their victims. They say it proves that "stalking behaviour does not stop at the prison gates".
In one case a convicted sex offender who was serving a long sentence for possessing thousands of images of him abusing children, including his own, applied to have contact with his children. According to Napo, the judge allowed the application, funded by legal aid, because he was worried that the offender would take his case to the European Court of Human Rights in Strasbourg if it was rejected. Only after repeated court hearings was the case thrown out, leaving the mother of the children traumatised.
Napo has also found evidence of men convicted of serious violence, including rape, making successful applications to cross-examine their victims in court. Several men who had killed their partners made applications for contact orders with their children that were funded by legal aid. One man applied to stop his children's adoption proceedings, having killed their mother.
The cases, which embroil the victims in lengthy and sometimes costly legal battles to counter the men's claims, highlight what Napo warns are serious shortcomings in the laws governing stalking. The union claims that the offence of stalking is not fully understood by criminal justice professionals or the courts, and that there is a need for legal reform, revision of sentencing guidelines and mandatory training for relevant staff, including family court judges.
In 2009-10, 1,191 individuals were jailed for offences under the Protection from Harassment Act. Parliamentary figures suggest that 10% of those found guilty under the act were fined and 19% were jailed. The rest received sentences such as community service orders or conditional discharges.
Experts have been concerned for some time that stalkers are increasingly using the law to exercise power and control over their victims. In 2004 a report suggested that perpetrators of violence were abusing the family court system. The report analysed the deaths of 29 children killed by their fathers. With regard to five of these families, reviews indicated that the children had been killed during contact ordered by the courts.
"It is unacceptable for perpetrators of domestic abuse and stalking to be allowed to use the courts to continue their abusive behaviours," said Laura Richards of Protection Against Stalking. "We know separation and child contact are high-risk factors when there has been previous abuse, and perpetrators will use any means to continue to exert their power and control, including the system and professionals working within it. The victim and their children's safety and their human rights must be paramount."
Under changes proposed by the government, jailed offenders will no longer be able to receive legal aid to launch "vexatious" applications. However, legal experts have warned that the changes could bring greater distress to victims because offenders will instead be forced to appear in court without a lawyer. As "litigants in person", this will allow them to cross-examine their victims.
An independent parliamentary inquiry into stalking, which is examining ways to tighten up the law, is due to report next month. Napo and Pas are calling for a panel to be established to examine the merit of applications made by offenders seeking access to the law. They also want criminal courts to have the power to suspend parental responsibility when the defendant is sentenced.