27 July 2021
Written by: Zoe McDonald, PNLD Legal Adviser
Not reviewed after the date of publication
The Stalking Protection Act 2019 came in force on the 20th January 2020 and with it came the introduction of Stalking Protection Orders (SPOs). These civil orders, which could be applied for without the need for criminal proceedings to have commenced, aimed to protect victims with pre-conviction intervention. PNLD published an article in February 2020 with details of the new orders; how they could be applied for, what they could achieve and offences that would committed upon breach.
Since that time, we have, of course, had the Covid pandemic. It has been well documented that levels of domestic abuse have surged during this time, but it appears that so too has stalking behaviour. The latest figures show (according to the BBC) that stalking incidents recorded across England and Wales in the nine months between April and December 2020 - almost doubled the annual number of incidents for the year ending March 2020. More than half of all police forces have seen stalking incidents double over the same time period. It has been acknowledged by forces that changes to how stalking crimes were recorded, as well as last year's lockdowns and the growth of online stalking behaviour, had been a factor in the surge in stalking incidents.
However, a BBC investigation (report published by the BBC on the 15th June 2021) has revealed that SPO powers to protect victims are not being used by some police forces, despite the surge in stalking offences. The national charge rate for stalking offences is at its lowest point for five years, falling from 23% in 2015-16 to just 6% for the nine months up to December 2020. Some forces in fact had failed to make a single application for an SPO up to May of this year.
Victims of stalking have called for better education and training so officers can recognise when action is needed to apply for an order. As forces are now looking to improve training for officers, it is felt that a recap is warranted, which PNLD Legal Adviser, Zoe McDonald has provided below.
Stalking or harassment?
It is sometimes difficult to differentiate between stalking and harassment (the law does not define stalking) to determine the appropriate response. Although not always the case, as a general rule, stalking behaviour tends to focus on a person, whereas harassment will often focus on disputes. In absence of a legal definition, the 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.’
In its guidance on Stalking Protection Orders, the CPS also stresses that 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.’
Within the College of Policing’s Authorised Professional Practice on stalking and harassment, there is a flowchart for initial police responders, which is a useful tool and can help with the initial distinction between stalking as opposed to harassment behaviours. Further on in the guidance for police responders at Annex A, is a series of Stalking Screening Questions. The tool – otherwise known as S-DASH - was developed on behalf of ACPO and provides research-based reasoning behind how the types of questions asked can help in differentiating between stalking and harassment.
When to apply for an SPO
Where stalking is suspected as opposed to harassment, then Section 1 of the Stalking Protection Act 2019 states that the chief officer of police may apply to the Magistrates’ Court for an order at any time, up to and including the point of conviction (or acquittal), if they are satisfied that:
the defendant has carried out acts associated with stalking;
it is believed they pose a risk associated with stalking to another; and
the proposed order is necessary to protect another from a risk of harm by the defendant.
Orders may only be applied for in respect of a defendant who resides in the police area, or who they believe is in the area or intending to come to it. The police may also apply to the youth courts for an SPO against a child or young person, providing they are older than 10 years but under the age of 18 years. However, officers should be aware that the additional principles under section 11 of the Children Act 2004 will apply, to ensure the welfare and safeguarding of the child.
Consideration should be given to SPOs at the start of every stalking investigation. This allows protection to be in place during the course of the investigation, even if the case results in acquittal and/or prosecution is not pursued.
Where there is an immediate risk of harm, for example in cases where there are factors that include suicidal or homicidal ideation, then it is likely to be appropriate to apply for an interim SPO under section 5 of the Act. This is a temporary order, imposing prohibitions and/or positive requirements, as the Court considers appropriate.
An application for an interim order may be made at the same time as the application for the full order, or after, as long it is made by the same chief officer of police who made the original application (section 5(2)). The threshold for an interim SPO is lower than that required to make a full order under section 1, where the court can only make an SPO if it is ‘satisfied’ that an order is ‘necessary to protect another person’ from stalking. For an interim order, the court only needs to ‘consider it appropriate to do so’.
Acts and risks associated with stalking
In order to meet the threshold in section 1, officers need to be familiar with what may constitute ‘acts associated with stalking’ and the ‘risks associated with stalking’. Section 2A(3) of the Protection from Harassment Act 1997 provides examples of what has previously been deemed as stalking 'behaviour', as follows:
- following a person,
- contacting, or attempting to contact, a person by any means,
- publishing any statement or other material –
- relating or purporting to relate to a person, or
- purporting to originate from a person,
- monitoring the use by a person of the internet, email or any other form of electronic communication,
- loitering in any place (whether public or private),
- interfering with any property in the possession of a person,
- watching or spying on a person.
It should be remembered, however, that this is not an exhaustive list and it will be open to the courts to consider other acts by a defendant and conclude that those acts constitute stalking even if they are not on the section 2A(3) list. CPS guidance provides examples of acts which may be prohibited by an SPO. These examples provide further detail of the types of behaviour deemed as ‘stalking’ (please see the section ‘Terms that can be included in a SPO’).
Section 1(4) of the Stalking Protection Act states that a ‘risk associated with stalking’:
‘(a) may be in respect of physical or psychological harm to the other person;
(b) may arise from acts which the defendant knows or ought to know are unwelcome to the other person even if, in other circumstances, the acts would appear harmless in themselves.’
Prosecution of a stalking offence
CPS guidance states that it is likely that the defence may argue particular acts ‘associated with stalking’ should not be classed as stalking but harassment and that their client is guilty of harassment, not stalking. Where such an argument is raised, prosecutors should state that this should be a decision of fact for the magistrates to decide on. It is therefore imperative that the correct charge is laid from the outset.
This does not prevent an application being made for an SPO as these may be applied for even if the case results in acquittal and/or prosecution is not pursued. However, as it states in the Home Office Statutory guidance for the police on Stalking Protection Orders (last updated in January 2021), where the threshold for an offence has already been met, a Stalking Protection Order is not an alternative to prosecution for stalking offences under the Protection from Harassment Act 1997 (set out at Annex C – Stalking offences). A Stalking Protection Order can be used to complement a prosecution of a stalking offence.