25 February 2020
Written by: Danielle Johnson, PNLD Legal Adviser
Not reviewed after the date of publication
The Stalking Protection Act 2019 came in force on 20th January 2020, permitting new civil Stalking Protection Orders (SPOs) to be made without the need for criminal proceedings to have commenced. These orders were introduced to fill a gap within the existing protective measures, allowing early police safeguarding and pre-conviction intervention.
PNLD legal adviser Danielle Johnson gives a brief overview of the new orders, including how to apply for them, managing the notification requirements and the offences for breach.
Applying for a Stalking Protection Order (SPO)
SPOs are civil orders and therefore an application is made by the police to a Magistrates’ Court or youth court, however breach of the orders carries a criminal penalty.
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.
The chief officer who applies for such order may only do so in respect of a defendant who resides in their area, or who they believe is in the area or intending to come to it. Officers should consider SPOs at the start of every stalking investigation, as this allows protection to be in place during the course of proceedings, even if the case results in acquittal and or prosecution is not pursued.
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.
Acts associated with stalking
Such acts can be been reported by the victim or the information may come to the attention of the police by other means (i.e. third party referral). A non-exhaustive list of acts of stalking are outlined in section 2A of the Protection from Harassment Act 1997, and include following a person, contacting or attempting to contact a person, publishing material or statements about a person, monitoring the use of electronic communication, loitering, interfering with a person’s property and watching or spying on the person. It also includes stalking behaviour in any part of the UK or abroad and acts that took place before the commencement of the Act. For more examples of acts or omissions that may amount to stalking behaviour, please see Annex A of the Home Office Statutory guidance on SPOs.
Risk associated with stalking
The police must carry out an assessment to ascertain the risk posed and consultations should be made at an early stage with the victim. Consultations are necessary to consider whether the risk includes any physical or psychological harm to the person, arising from acts that the defendant knows, or ought to know, the victim considers unwelcome (even if in other circumstances the acts would appear harmless). This would include, for example, sending unwanted gifts in conjunction with other behaviour. An appropriate specialist risk assessment or screening tool should be used, along with consultations with other relevant agencies.
Necessary to protect another
The person who needs protecting does not have to be the victim of the acts above; it can be anyone connected to the victim who may be at risk. Such a scenario could arise if a defendant is stalking other people connected to the victim e.g. family members, friends, or co-workers, knowing that this behaviour will impact on the victim. This is known as ‘stalking by proxy’.
A Magistrates’ Court may make an order if it satisfied that the criteria in section 2(1) is met, which are similar to those set out in section 1, for application of an order, as outlined above. An SPO will either be made for a fixed period of at least two years (beginning with the day on which the order is made), or until a further order is made (section 3). The order can prohibit the defendant from doing, or require the defendant to do, anything described in the order. However, these conditions must, as far as practicable, avoid any conflicts with the defendant’s beliefs, or interference with the times they normally work or attend an education establishment. An order could, for example, prohibit a suspect entering certain locations or areas in which the victim resides or visits, contacting the victim by any means, or physically approaching the victim, at all or within a specified distance.
Variation, Renewal and Discharge of an SPO
Section 4 of the Act confirms that the defendant or the relevant chief officer can apply to the court to vary, renew or discharge an SPO. This may be necessary when stalking behaviour changes or lifestyle changes are made e.g. moving work or house. The court may only make a decision on such an application after hearing from both the defendant and relevant chief officer of police.
Only if it is necessary to protect a person from a risk associated with stalking will the court renew, vary or impose additional prohibitions and requirements. An order may also not be discharged before the end of the minimum two year period, without the consent of the defendant and the chief officer of police who applied for the order, or if different, the chief officer in the area the defendant resides. If the police wish to discharge an order, the defendant may refuse, if for example, they still consider themselves a risk.
Section 7 sets out who may appeal to the Crown Court against the making, refusal to make, variation, renewal or discharge of an order.
Section 5 of the Act provides that interim orders may be made by a Magistrates’ Court when an SPO has not yet been determined. The application must be made by a chief officer at the same time as the main application, or by the chief officer who made the main application, if the main application has already been made. The interim order is the same as the full order in that it can prohibit the defendant from doing, or require the defendant to do, anything described.
Although the application process is the same as for a full order, the threshold of granting an interim order is lower, resulting in a faster process to obtain an order and protection for the victim while awaiting the full order. The court may grant an interim order if it considers it ‘appropriate to do so’, whereas the full order requires the court to be ‘satisfied if it is necessary to protect another person’.
An interim order will be granted for a limited fixed period, only to enable time for additional information to be obtained and a full order to be made. The interim order will cease to have affect, if not before, on the grant of the full order. The defendant or the chief officer may apply to vary, renew or discharge the interim protection order.
Managing an order and notification requirements
Once an order has been made it should be recorded on the Police National Computer (PNC), including all dates and any conditions.
Section 9 of the Act outlines the notification requirements. A defendant subject to a full or interim order must notify the police of their name and home address within 3 days of the date of service. If either their name or home address changes during the duration of the order, they must notify the police within 3 days of that change. These requirements do not apply however, to a defendant who is already subject to requirements under Part 2 of the Sexual Offences Act 2003.
Section 10 outlines the methods by which a defendant may notify the police. A person who has a home address in England and Wales can give a notification by attendance at a police station in their local police area or by giving an oral notification to a police officer or to a person authorised for the purpose by the officer in charge of the station. A person who does not have a home address in England and Wales must give notification by attending a police station in the local police area where an order was last made, or by giving an oral notification to a police officer or other person authorised for the purpose by the officer in charge of the station. Any notification given must also be acknowledged in writing or in such form as the Secretary of State directs. To verify identity of the person giving notification, the police can request to take a person’s fingerprints and/or photograph. The person must give consent, but failure to do so will be an offence, as outlined below.
Section 11 of the Act outlines the offences that can be committed when a defendant subject to an order fails to notify the police in accordance with the above notification requirements (without reasonable excuse), or provides information known to be false.
The offences relating to notification are as follows:
Failure to notify the police of notification requirements within 3 days of the service of the stalking order or interim stalking order - H20165
Failure to notify the police of a name not already notified, within 3 days - H20166
Failure to notify police of new home address within 3 days - H20167
Provide information relating to notification requirement known to be false - H20169
Failure to comply with request of police officer or other authorised persons for fingerprints / photographs / both - H20168
An offence will also be committed under section 8 when the subject of an order breaches it, without reasonable excuse:
Breach of a stalking order / interim stalking protection order - H20164
The offences are all either way offences, carrying a maximum sentence of 5 years imprisonment and/or a fine. It will be for the court to decide what constitutes reasonable excuse, however examples could include the defendant being in prison, hospital or another form of custody.
When the police are made aware of a breach, they should arrest at the first opportunity, in order to protect the victim, maintain confidence in the effectiveness of the order and prevent harm. Any breach can also be used as bad character evidence in subsequent proceedings. CPS will conduct proceedings for breaches in the usual way and a breach will need to be determined in the court ‘beyond reasonable doubt’.
Further details regarding SPOs can be found in the Home Office guidance: ‘Stalking Protection Act: statutory guidance for the police’.