Stalking Protection Orders

|Legal Guidance

Contents

This legal guidance provides important information about the law and practice surrounding Stalking Protection Orders (SPO). These are civil orders which are made on application by the police. They cannot be applied for by prosecutors.

However, breach of the order without reasonable excuse is a criminal offence and should be prosecuted in the same way as other ancillary orders.

It is also an offence for the respondent to:

  • To fail to notify the police of their name and home address within 3 days of the making of the order; or
  • To notify the police of any change of name or home address within a 3-day period of that change.

What is a Stalking Protection Order?

The Stalking Protection Act 2019 received Royal Assent on 15 March 2019. The Act introduces a new Stalking Protection Order (SPO). Detailed Statutory Guidance has been developed. It provides more information about when to apply for an order, the application process and how to deal with breach of a full or Interim Order. It can be found here:

https://www.gov.uk/government/publications/stalking-protection-act-statutory-guidance-for-the-police

A Stalking Protection Order is made on application to the magistrate’s court by the police. It is a civil order. Applications for Interim or full orders can be made:

  • Where the threshold to commence criminal proceedings for the commission of an offence has not yet or will not be met. This allows for early police intervention in stalking cases; or,
  • Where of suspect has been charged. A SPO is not an alternative to prosecution for stalking offences under the Protection from Harassment Act 1997. In such circumstances a SPO can be used to complement the prosecution of a stalking offence.

Within an application for a SPO or an interim order, police can request both prohibitions and/or requirements to protect the victim from the risk of stalking. 

When should the police make an application for a Stalking Protection Order

There is no specific legal definition of stalking. However, the police and CPS have adopted the following description: ‘a pattern of unwanted, fixated and obsessive behaviour which is intrusive. It can include harassment that amounts to stalking or stalking that causes fear of violence or serious alarm or distress in the victim’.

There is no such thing as a ‘typical’ stalking perpetrator or a ‘typical’ stalking victim. This crime disproportionately affects women and girls; however, it is important to recognise that men and boys may be victims too. Stalking affects people of all ages, and victims come from a wide range of backgrounds - stalking is not restricted to public figures and celebrities. We are also aware that people with a longstanding illness or disability are disproportionately likely to be victims of stalking.

The criteria for applying for an order are set out in section 1(1) of the Act. The police are advised to consider applying for an order where it appears to them that:

  • The respondent has carried out acts associated with stalking;
  • The respondent poses a risk of stalking to a person; and
  • There is reasonable cause to believe the proposed order is necessary to protect the other person from that risk. (The person to be protected does not have to have been the victim of the acts mentioned above.)

Applications for SPOs can be made in both a domestic abuse context (such as stalking by a former intimate partner) and in a case of so called ‘stranger stalking’. This also allows for protection to be in place even if the case results in an acquittal.

Police Officers may seek advice from the CPS where they are considering asking for usual prohibitions and/or requirements, where the case is complex or where they are also seeking a charging decision or Early Investigative Advice.

Prosecutors should also remind the police about the usefulness of the order if it is clear that a SPO has not been previously considered.

Interim Orders

An interim SPO is a temporary order imposing prohibitions and/or positive requirements as the Court considers appropriate. They provide a speedier process when there is an immediate risk of harm, for example in cases where there are factors that include suicidal or homicidal ideation.

The court can make an interim order ‘if it considers it appropriate to do so’. This is a lower threshold than that required to make a ‘full’ order, where the court can one only make an SPO if it is ‘satisfied’ that an order is ‘necessary to protect another person’ from stalking.

Making an application for Stalking Protection Order 

An application for a ‘full’ SPO is made by way of complaint by the police (including the British Transport Police and Ministry of Defence Police) to a magistrates’ court.  This means that the court will act in its civil capacity and so the civil rules of evidence apply and hearsay is admissible. The legislation is silent as to the standard of proof that will be required to make an application.

However, it is likely that the courts will apply the criminal standard of proof (beyond reasonable doubt) to the fact-finding elements of a ‘full’ SPO application (whether the defendant has carried out acts associated with stalking, and whether the defendant poses a risk associated with stalking to another person). They are more likely to apply a lower test, namely treating it as an exercise of judgement or evaluation in the case of an interim order.

This assessment is based on the judgment in the House of Lords in R (McCann) v Crown Court at Manchester [2003] 1 AC 787. This judgement relates to Anti-Social Behaviour Orders. However assessment will be determined on the facts of each case in the context of relevant case law.

The court will issue the summons to the police who will serve the application. If the respondent fails to attend the hearing the court can proceed in the respondent’s absence or issue a warrant.

Terms that can be included in a Stalking Protection Order

A SPO and an interim SPO must specify:

  • the date on which the order is made;
  • the period for which it has effect. This may be fixed for a SPO but must be fixed for an interim order.  An interim order will expire upon the determination of the main application;
  • each prohibition or requirement which applies to the subject;
  • whether any prohibition or requirement is expressly limited to a particular locality and, if it is, what the locality is; and
  • whether any prohibition or requirement is subject to a fixed time period which differs from the period for which the main order has effect and, if it is, what that period is.

Within an application for a SPO, or an interim order, police can request both prohibitions and/or requirements to protect the victim from the risk of stalking.  Police have been strongly advised to engage with the victim and to obtain their views on the most appropriate conditions.

The order can be made for a fixed period or until a further order is made. Where a fixed period is specified in the order, it must be for a period of at least two years. Different periods may be specified in relation to different prohibitions or requirements in the terms of the order, depending on the circumstances.

A prohibition or requirement has effect in all parts of the United Kingdom unless expressly limited to a particular locality.

Examples that could be imposed include prohibiting the respondent from:

  • entering certain locations or defined areas where the victim resides or frequently visits;
  • contacting the victim by any means, including via telephone, post, email, SMS text message or social media;
  • contacting or interacting with the victim via third parties, for example friends or family;
  • making reference to the victim on social media either directly or indirectly;
  • making vexatious applications to the civil court (including the Family Court) which reference the victim;
  • recording images of the victim;
  • using any device capable of accessing the internet unless it has the capacity to retain and display the history of internet use;
  • physically approaching the victim (at all, to within a specified area or as outlined on a map); and/or
  • engaging in any form of surveillance of the victim by any means.

The order could also include positive requirements to:

  • attend an assessment of suitability for treatment;
  • attend an appropriate perpetrator intervention programme;
  • attend a mental health assessment;
  • attend a drugs and alcohol programme;
  • surrender devices;
  • provide the police with access to social media accounts, mobile phones, computers, tablets and passwords/codes; and/or
  • sign on at a police station.

Each application should be considered on its own circumstances when deciding the most appropriate conditions and the examples are not exhaustive.

Youths and Stalking Protections Orders

Children and young people under the age of 18 can be protected by SPOs. They can also be made subject to an interim or full SPO. Children and young people aged from 10 years old up to their 18th birthday, who are respondents to an order, will be subject to the same procedure as adults, but their applications will be dealt with similarly by the youth courts.

Dealing with Breach of a Stalking Protection Order or an Interim Order

A breach of a full or interim order without reasonable excuse is a criminal offence punishable either way on:

  • Summary conviction with imprisonment for a term not exceeding 12 months (or 6 months for offences committed before section 154(1) of the Criminal Justice Act 2003 comes into force) or a fine or both; or
  • Indictment, with imprisonment for a term not exceeding 5 years or a fine or both.

In breach proceedings a copy of the original SPO or interim SPO, certified by the designated officer of the court at which it was made, is admissible as evidence of the order having been made. 

A single incident would be a breach of the order. A pattern of behaviour is not required to breach a SPO.

However where there are 2 or more incidents prosecutors should consider if further offences such as stalking have been have been carried out. Prosecutors should ensure that the court has all appropriate sentencing options available to them. More guidance can be found in CPS legal guidance on Stalking and Harassment.

A breach of the order may also be used as bad character evidence in subsequent court proceedings for the original substantive offence.

The Stalking Protection Act 2019 extends to England and Wales only and the criminal offences of breach, or failure to comply with notification requirements, do not have extraterritorial effect. In order for behaviour to constitute an offence in England and Wales the offending must contain a substantial connection to the jurisdiction. An example might be where a respondent is undertaking stalking behaviour in Scotland in breach of a SPO where a victim is located in England or Wales.

Failure to notify the Police of the Respondent’s name and address or any changes

A person subject to a SPO/interim SPO must notify the police of their name(s) and their home address, within a period of 3 days from the date when the order is served. If the name used by or the address of the person changes during the duration of the order, they must notify the police within a 3-day period of that change.

The notification requirements do not apply to a person who is already subject to notification requirements under Part 2 of the Sexual Offences Act 2003, although if the latter were to cease before the expiry of the SPO, section 9 would then apply, with the deadline for notification being 3 days after they cease to be subject to the 2003 Act.

Failure to make the notification in the appropriate timeframe is a criminal offence. This is an either way offence punishable on summary conviction with imprisonment for a term not exceeding 12 months (or 6 months for offences committed before section 154(1) of the Criminal Justice Act 2003 comes into force) or a fine or both, or on conviction on indictment, with imprisonment for a term not exceeding 5 years or a fine or both. However, the person may not be prosecuted more than once for the same failure to notify.