Stalking
Stalking is an offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010. It is a course of conduct, on at least two occasions, that causes someone fear or alarm, where the stalker intended this or knew or ought to have known it was likely.
Law checked as at 25 September 2026. Legal information only, not legal advice, and not a prediction of any sentence.
At a glance
| Also known as | Section 39 offence, s.39, Harassment |
|---|---|
| The law | Criminal Justice and Licensing (Scotland) Act 2010, section 39 |
| Where it is tried | can be prosecuted under summary procedure in the sheriff court (or JP court) or under solemn procedure before a sheriff and jury or in the High Court. More serious or prolonged stalking is often prosecuted on indictment. |
| Maximum penalty | On summary conviction: up to 12 months' imprisonment and/or a fine of up to £10,000 (the statutory maximum). On conviction on indictment: up to 5 years' imprisonment and/or an unlimited fine. For convictions on or after 1 September 2026, the court must consider making a non-harassment order to protect the complainer (section 234AZA of the Criminal Procedure (Scotland) Act 1995), and breaching one is a separate criminal offence. |
Maximum penalties are the most a court can impose for the worst cases. Most sentences are far lower, and the actual sentence depends on the facts, any guilty plea and the court's assessment.
What the prosecution must prove
- That the accused engaged in a course of conduct, meaning conduct on at least two occasions
- That the conduct is of a kind listed in section 39, such as following, contacting or trying to contact the complainer, monitoring their internet or phone use, loitering, watching or spying, leaving items, or any other act a reasonable person would expect to cause fear or alarm
- That the course of conduct actually caused the complainer to suffer fear or alarm
- That the accused intended to cause fear or alarm, or knew or ought in all the circumstances to have known that the conduct was likely to cause it
- That the accused is identified by corroborated evidence
Defences and common issues
- The course of conduct was authorised by an enactment or rule of law (section 39(5)(a)).
- The conduct was for the purpose of preventing or detecting crime (section 39(5)(b)).
- The conduct was, in the particular circumstances, reasonable (section 39(5)(c)).
- No course of conduct: only one occasion is proved, or the complainer was not caused fear or alarm (though section 38 may still apply).
Frequently asked questions
What counts as stalking in Scotland?
Stalking under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 is a course of conduct that causes someone fear or alarm. The conduct can include following them, repeatedly contacting or trying to contact them, monitoring their internet, email or phone use, loitering near their home or work, watching or spying on them, publishing material about them, or leaving things for them. The person must have intended to cause fear or alarm, or known or ought to have known it was likely.
How many incidents does it take to be stalking?
A course of conduct under section 39 means conduct on at least two occasions. So two incidents can be enough, provided together they cause the complainer fear or alarm and the other elements are proved. The incidents do not have to be the same type; for example, following someone once and sending unwanted messages another time can together form a course of conduct. A single incident may instead be charged as threatening or abusive behaviour.
Does the victim have to be frightened for it to be stalking?
Yes. Unlike threatening or abusive behaviour under section 38, stalking requires that the course of conduct actually caused the complainer to suffer fear or alarm. The accused must also have intended that, or known or ought to have known that the conduct was likely to cause it. This means the offence can be committed even if the accused claims they meant no harm, where a reasonable person in their position would have realised the effect.
What is a non-harassment order?
A non-harassment order is a court order under section 234A of the Criminal Procedure (Scotland) Act 1995 requiring an offender to refrain from specified conduct towards the victim, such as contacting them or going near them, for a set period or indefinitely. For stalking convictions on or after 1 September 2026, the court must consider making one without waiting for the prosecutor to ask, and must make one unless it concludes the victim does not need that protection. Breaching a non-harassment order is a criminal offence in its own right.
What happens if the court is not satisfied it was stalking?
Section 39 allows the jury, or the sheriff in a summary case, to acquit the accused of stalking but convict them instead of threatening or abusive behaviour under section 38, if satisfied that offence was committed. This might happen where only one incident is proved, or where it is not proved that the complainer was actually caused fear or alarm. Section 38 has the same maximum penalties as stalking.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Criminal Justice and Licensing (Scotland) Act 2010, section 39
- Criminal Justice and Licensing (Scotland) Act 2010, section 38
- Criminal Procedure (Scotland) Act 1995, Part XI (sentencing, including section 234A non-harassment orders)
- Scottish Government: Scottish Crime Recording Standard, Group 1 (non-sexual crimes of violence)
- Criminal Procedure (Scotland) Act 1995, section 234AZA (non-harassment orders: consideration by court in certain cases)
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