Stalking Act 1997
STALKING ACT 1997

1

BERMUDA
1997 : 2

STALKING ACT 1997

[Date of Assent 4 March 1997]

[Operative Date 31 October 1997]

ARRANGEMENT OF SECTIONS

1 Short title
2 Interpretation
3 Meaning of "stalking"
4 Offence of stalking
5 Application for protection

order
6 Power to make protection

order
7 Procedure on an application
8 Content of protection order
9 Notice to respondent
10 Power of arrest
11 Temporary order
12 Explanation to respondent

13 Duration of protection order
14 Duration of temporary order
15 Variation or revocation of

protection order
16 Standard of proof in relation to

protection order
17 Offence
18 Prosecution
19 Evidence
20 Bail
21 Power to enter premises
22 Appeal
23 Commencement

WHEREAS it is expedient to create an offence of stalking and to
provide protection for persons affected by stalking:

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Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:—

Short title
1 This Act may be cited as the Stalking Act 1997.

Interpretation
2 In this Act—

"clerk" means clerk to the court;

"complainant" means a person who applies for a protection
order;

"connected person" means a person who has a family or
domestic connection with a victim of stalking or with a
complainant;

"court" means—

(a) in section 20, any competent court;

(b) otherwise, a court of summary jurisdiction;

"offensive weapon" means an article made or adapted for use for
causing injury to the person, or intended for such use by the
person having the article in his possession;

"prescribed form" means a form prescribed by rules of court;

"protection order" means an order under section 6, including a
temporary order;

"respondent" means a person in respect of whom a protection
order, or an application for such an order, is made;

"to stalk" has the meaning assigned to it in section 3;

"temporary order" means a protection order of a kind described
in section 11;

"victim", in relation to stalking, has the meaning assigned to it in
section 3(1).

Meaning of "stalking"
3 (1) For the purposes of this Act, a person stalks another person
(the "victim") if—

(a) without lawful authority the first-mentioned person
engages in conduct described in subsection (2)—

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(i) with the intention—

(aa) of causing physical or mental harm to the
victim; or

(bb) of inducing in the victim apprehension or
fear for the victim's safety or for the safety
of a connected person; or

(ii) when he knows that that conduct is likely to
cause such harm to the victim or to induce in
the victim such apprehension or fear; and

(b) that conduct actually has that result.

(2) The conduct referred to in subsection (1) is conduct
consisting of acts, done over a period of time, which include any one or
more of the following—

(a) following the victim or a connected person;

(b) telephoning or sending electronic messages to, or
otherwise contacting, the victim or a connected person;

(c) interfering with property in the possession of the victim
or a connected person;

(d) entering the place of residence or employment of the
victim or a connected person, or any other place
frequented by the victim or a connected person, and
loitering there;

(e) loitering outside the place of residence or employment of
the victim or a connected person, or outside any other
place frequented by the victim or a connected person;

(f) keeping the victim or a connected person under
surveillance.

Offence of stalking
4 (1) A person who stalks another person is guilty of an offence
and, subject to subsection (2), liable on summary conviction to
imprisonment for a term not exceeding 12 months or to a fine not
exceeding $2,500 or to both.

(2) Where a person is found guilty of an offence of stalking
contrary to subsection (1) and it is proved in the proceedings, on the
balance of probabilities—

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(a) that he was in possession of an offensive weapon when
he did an act forming part of the conduct constituting
the stalking; or

(b) that an act forming part of that conduct was a breach
of—

(i) a protection order made in respect of him under
this Act; or

(ii) an order made in respect of him under section
9A of the Matrimonial Proceedings (Magistrates'
Courts) Act 1974; or

(iii) a protection order made in respect of him under
the Domestic Violence (Protection Orders) Act
1997,

the court may, instead of sentencing him under subsection (1), sentence
him to imprisonment for a term not exceeding 3 years or to a fine not
exceeding $5,000 or to both.

Application for protection order
5 (1) A person (a "complainant") may apply to the court in the
prescribed form for a protection order in respect of another person (a
"respondent") in the cases set forth in subsection (2).

(2) Such an application may be made—

(a) where proceedings for an offence of stalking the
complainant contrary to section 4 have been instituted
against the respondent and have ended in the
respondent's conviction; or

(b) where such proceedings have been instituted but have
not been concluded; or

(c) where the court is satisfied that such proceedings are
imminent.

(3) The provisions of subsections (2) to (4) of section 6, and of
sections 7 to 9, of the Domestic Violence (Protection Orders) Act 1997
(applications by representatives), together with so much of section 2 of
that Act as is necessary for the interpretation of those provisions, apply
mutatis mutandis in relation to applications for protection orders under
this Act as they apply in relation to applications for protection orders
under that Act.

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Power to make protection order
6 (1) In a case to which paragraph (a) of section 5(2) applies, the
court may make a protection order in respect of the respondent if it is
satisfied that the order is needed for the complainant's protection.

(2) In a case to which paragraph (b) of section 5(2) applies, the
court may make a protection order in respect of the respondent if it is
satisfied that—

(a) the respondent has stalked the complainant; and

(b) the order is needed for the latter's protection.

(3) In a case to which paragraph (c) of section 5(2) applies, the
court may make a protection order in respect of the respondent if it is
satisfied that—

(a) the respondent will stalk the complainant; and

(b) the order is needed for the latter's protection;

but such an order must be a temporary order.

Procedure on an application
7 (1) Subject to section 11, where an application for a protection
order has been made, the court shall issue a summons in the prescribed
form summoning the respondent to a hearing.

(2) The summons, together with a copy of the application, must
be served on the respondent personally.

Content of protection order
8 (1) A protection order may, subject to this Act, make provision
as specified in subsection (2).

(2) A protection order may prohibit the respondent from—

(a) following the complainant or a connected person;

(b) telephoning or sending electronic messages to, or
otherwise contacting, the complainant or a connected
person;

(c) interfering with property in the possession of the
complainant or a connected person;

(d) entering the place of residence or employment of the
complainant or a connected person, or any other place
frequented by the complainant or a connected person,
and loitering there;

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(e) loitering outside the place of residence or employment of
the complainant or a connected person, or outside any
other place frequented by the complainant or a
connected person;

(f) keeping the complainant or a connected person under
surveillance;

(g) inciting or assisting another person to stalk the
complainant.

Notice to respondent
9 (1) Subject to this Act, the court shall not make a protection
order in respect of a person unless—

(a) he has had actual notice in the prescribed form of the
application for the order; and

(b) he has been given the opportunity to oppose, or
otherwise make representations in relation to, the
making of the order.

(2) Where a protection order is made or varied by the court, the
clerk shall forthwith—

(a) arrange for an order in the prescribed form to be
formally drawn up and filed in the court; and

(b) cause—

(i) a copy of the order to be served on the
respondent; and

(ii) copies also to be sent to—

(aa) the Commissioner of Police; and

(bb) any other party to the proceedings.

Power of arrest
10 (1) The court may attach a power of arrest to a protection order
if it is satisfied that the respondent—

(a) in the past caused actual bodily harm, or threatened to
cause bodily harm, to the complainant or a connected
person; and

(b) is likely in the future to cause bodily harm to the
complainant or a connected person.

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(2) Where a power of arrest is attached to a protection order, a
police officer may arrest without warrant a person who he has
reasonable cause to suspect is in breach of the order.

(3) Where a person is arrested without a warrant in reliance on
subsection (2)—

(a) he shall be brought before the court within the period of
48 hours beginning at the time of his arrest, or as soon
as reasonably practicable after the arrest, to be dealt
with under section 17; and

(b) he shall not be released within that period except on the
direction of the court;

but nothing in this section authorises his detention at any time after the
expiry of that period.

Temporary order
11 (1) The court may make a protection order without section 7 or
subsection (1) of section 9 having been complied with if the court is
satisfied that undue hardship, or the risk of harm, will be caused to the
complainant otherwise.

(2) A protection order made by virtue of subsection (1) of this
section is in this Act referred to as a temporary order; and a person in
respect of whom an application for a protection order is made under this
Act is a respondent to the application for the purposes of this Act even
though a temporary order is made on the application and he may have
had no prior knowledge of the making of the application.

(3) Without prejudice to the generality of subsection (1), a
court, in considering whether to make a temporary order must have
evidence—

(a) that the respondent's conduct complained of by the
complainant is serious; and

(b) that the complainant is in fear of a repetition of that
conduct; and

(c) that further such conduct is likely to be directed to the
complainant.

Explanation to respondent
12 Where the court proposes to make a protection order and the
respondent is before the court, the court shall before making the order
explain to him in language that he understands—

(a) the terms, purpose and effect of the order; and

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(b) the consequences if he should fail to comply with it; and

(c) the means by which it may be varied or revoked.

Duration of protection order
13 (1) Subject to subsection (3) of this section and section 14, a
protection order remains in force for such period, not exceeding 12
months, as the court specifies in the order.

(2) Where a protection order contains a number of
requirements or prohibitions, the court may specify in the order different
periods, being periods none of which exceeds 12 months, as the periods
for which the several requirements or prohibitions are to remain in force.

(3) A protection order made pursuant to subsection (2) of
section 6 ceases to have effect on the expiry of 60 days beginning on the
date of the making of the order unless the order—

(a) specifies an earlier time of expiry; or

(b) is earlier revoked under section 15; or

(c) is a temporary order.

Duration of temporary order
14 (1) A temporary order remains in force for such period, not
exceeding 28 days, as the court specifies in the order.

(2) Notwithstanding subsection (1), where—

(a) the court adjourns the hearing of an application for a
protection order; and

(b) a temporary order is in force,

the court may extend the period for which the temporary order is to
remain in force until the date fixed for the further hearing of the
application.

(3) Subject to subsections (1) and (2), where a temporary order
has been made on an application for a protection order, the temporary
order ceases to be in force—

(a) in the case where the respondent is present when a
protection order is made, when the latter order is made;

(b) in the case where the respondent is not so present, when
the protection order is served on him;

(c) when the application is dismissed.

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Variation or revocation of protection order
15 (1) Where a protection order is in force, a party to the
proceedings in which the order was made may make application to the
court in the prescribed form for the order to be varied or revoked.

(2) On an application under subsection (1), the court may vary
or revoke the order.

(3) The clerk shall cause a copy of an application under
subsection (1) to be served on each person, other than the party making
the application, who was a party to the proceedings in which the original
order was made.

(4) A protection order shall not be varied without the
respondent being given the opportunity to oppose, or otherwise make
representations in relation to, the variation.

Standard of proof in relation to protection order
16 Any question of fact to be decided by the court in, or in
connection with, the making, variation or revocation of a protection order
is to be decided by the court on the balance of probabilities.

Offence
17 Where a protection order is made or varied and—

(a) the respondent was present when the relevant order was
made; or

(b) the respondent was not present at that time but a copy
of the order has been served on him,

he is guilty of an offence if he contravenes the order, and liable on
summary conviction to imprisonment for a term not exceeding 12
months or to a fine not exceeding $2,500 or to both.

Prosecution
18 (1) The complainant who applied for a protection order
(including a person who applied under section 6(4) of the Domestic
Violence (Protection Orders) Act 1997, as applied by section 5(3) of this
Act) may institute a prosecution under section 17 to enforce the order.

(2) Where such a prosecution is instituted against a person,
the summons shall require him to appear to answer the information at a
time not later than 72 hours after the time at which the summons is
issued.

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(3) Service of the summons referred to in subsection (2) shall
be effected not later than 24 hours before the time appointed in the
summons for the hearing of the information.

Evidence
19 Notwithstanding any other law to the contrary, in any hearing of
an application for a protection order made by a children's officer under
paragraph (b) of section 6(4) of the Domestic Violence (Protection Orders)
Act 1997 (as applied by section 5(3) of this Act) in the interests of a child,
the spouse of the person in respect of whom the order is sought is a
compellable witness.

Bail
20 (1) The following provisions of this section have effect,
notwithstanding any law to the contrary, in relation to the grant of bail in
respect of an offence against section 17.

(2) Matters that the court must take into account are—

(a) the need to ensure that persons at risk are protected
from harm; and

(b) any hardship that may be caused to the respondent or a
connected person if bail is not granted or if, where bail is
granted, a particular condition is imposed.

(3) The court may grant bail on such terms and conditions as
it thinks fit.

(4) Where a person contravenes a condition attached to bail
that has been granted to him, the bail is forfeit and he may be re-
arrested.

Power to enter premises
21 A police officer may without warrant enter any premises for the
purpose of giving assistance to any one present on the premises if he has
reasonable cause to suspect that a protection order is being contravened.

Appeal
22 (1) Subject to subsection (3), a person aggrieved by a decision
of a court in proceedings under this Act (not being proceedings under, or
in respect of an offence against, section 4 or 17) may appeal to the
Supreme Court against the decision.

(2) For the purposes of—

(a) enforcing an order made by the Supreme Court on an
appeal under subsection (1); or

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(b) varying or revoking under section 15 an order made by
that Court on such an appeal,

such an order is deemed to be an order of the court from which the
appeal was brought to the Supreme Court, and not the Supreme Court
itself.

(3) An appeal does not lie by virtue of subsection (1) from—

(a) the making, variation or revocation of a temporary order;
or

(b) the refusal of the court to make a temporary order.

Commencement
23 This Act comes into operation on such day as the Minister
responsible for Legislative Affairs may appoint by notice published in the
Gazette.