On 20 January 2020 The Stalking Protection Act 2019 (Commencement) Regulations 2020 brought into force provisions for Stalking Protection Orders as set out in the Stalking Protection Act 2019 (SPA 2019).
Given the domestic context that stalking can often occur within, it may be worth considering whether these orders are going to have an effect on ongoing or subsequent family proceedings, in addition to the effect that they have on those subject to them.
Section 1 SPA 2019 sets out the application, test and remit for such orders. S.1(1) deals with the requirements for making the initial application:
(1) A chief officer of police may apply to a magistrates’ court for an order (a “stalking protection order”) in respect of a person (the “defendant”) if it appears to the chief officer that—
b) the defendant has carried out acts associated with stalking, c) the defendant poses a risk associated with stalking to another person, and d) there is reasonable cause to believe the proposed order is necessary to protect another person from such a risk (whether or not the other person was the victim of the acts mentioned in paragraph (a)).
The application may be made by a chief officer of police in respect of a person who resides in that police area or a person who the chief officer believes is in the area or intends to come into it (s.1(3)). Although made in the magistrates’ court SPO’s are civil orders and therefore civil rules of evidence apply, although the legislation is silent as to the standard of proof required.
There is no definition of stalking provided in this new legislation. There is also no definition within the Protection from Harassment Act 1997 (PHA 1997) which creates the criminal offence of stalking (s.2A & 4A). However, s.1(6) SPA 2019 directs the reader to s.2A (3) PHA 1997 which provides the following examples of acts ‘associated with stalking’:
• Following a person.
• Contacting, or attempting to contact a person by any means.
• Publishing any statement or other material which relates or purports to relate to a person or purports to originate from a person.
• Monitoring a person’s internet, email or other forms of electronic communication.
• Loitering in any place.
• Interfering with a person’s property.
• Watching or spying on a person.
This is a non-exhaustive list and therefore in theory there is no limit to the behaviour or activity that could be relied upon by officers.
The government recently published statutory guidance on these orders [https://www.gov.uk/government/publications/stalking-protection-act-statutory-guidance-for-the-police]. The guidance provides some insight into the orders and notes that the police and CPS have adopted the following description of stalking:
“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.”
Stalking protection orders do not require the ‘acts’ referred to by officers to have been carried out in the UK and any ‘acts’ carried out before SPA 2019 was implemented can be relied upon (s.1(5)).
The risk that the ‘defendant’ may pose is set out in section 1 as the following:
(4) 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.
Acts that would appear harmless could include sending someone unwanted gifts or flowers.
Making the order
Under section 2 SPA 2019:
(1) A magistrates’ court may make a stalking protection order on an application under section 1(1) if satisfied that—
(a) the defendant has carried out acts associated with stalking, (b) the defendant poses a risk associated with stalking to another person, and (c) the proposed order is necessary to protect another person from such a risk (whether or not the other person was the victim of the acts mentioned in paragraph (a)).
(2) A magistrates’ court may include a prohibition or requirement in a stalking protection order only if satisfied that the prohibition or requirement is necessary to protect the other person from a risk associated with stalking.
Under this section the person the order is sought to protect does not even have to be the victim of the acts relied upon to make the application itself. The terms of the order are not limited to prohibiting the defendant from certain acts and may require the defendant to do ‘anything described in the order’ (s.1(2)(b)), which could include seeking professional help.
The orders can be made for fixed period or until further notice, but the minimum length of the order must be one of 2 years (s.3 SPA 2019). Orders can also be made on an interim basis where the court is satisfied that the order is ‘appropriate’ (s.5 SPA 2019), a lower threshold than the requirement that it is ‘necessary’ as set out above.
Once made (whether on an interim or final basis) the ‘defendant’ must notify the police of their name(s) and home address within 3 days of the order being served (s.9 SPA 2019). They must also notify the police within 3 days if those details change. These orders therefore require someone to submit to the same conditions as those who have been convicted of certain sexual offences, but with the difference that there does not need to have been a conviction at all.
Any breach without a reasonable excuse is an either way criminal offence (s.8 SPA 2019). On summary conviction the maximum sentence is one of up to 12 months, a fine or both. If convicted on indictment the maximum sentence increases to one of 5 years, a fine or both.
An appeal can be made to the Crown Court (s.7 SPA 2019) and an application to vary, renew or discharge the order can be made by the defendant or the relevant chief officer of police (s.4 SPA 2019).
Will we see an impact on family proceedings?
Although these orders are sought through the magistrates’ court, the family courts may have to deal with situations where one party is subject to or has the protection of an SPO.
Whereas a non-molestation order requires the complainant to approach the courts directly, these orders are applied for by the police, much like a Domestic Violence Prevention Order. However, although they are available, DVPOs are not necessarily a common occurrence. It remains to be seen how many applications will be made and whether there will be a decline in prosecutions in favour of this approach.
The provisions of the SPA 2019 provide an alternative to seeking a restraining order or a non-molestation order. SPO’s also have the power to compel persons subject to them to carry out requirements, unlike the other available orders. In the same way that non-molestation and restraining orders include terms that allow for contact with children, it could be that we see similar terms drafted in SPO’s.
The CPS website gives guidance on these orders [https://www.cps.gov.uk/legal-guidance/stalking-protection-orders], providing examples of terms that could be included. One of these is: “making vexatious applications to the civil court (including the Family Court) which reference the victim”.
If there are children within the relationship it could be conceivable that an SPO may prevent any further child arrangements applications being made, similar to the power available to the family court under s.91(14) of the Children Act 1989.
Given their flexible and wide-ranging nature, Stalking Protection Orders may not only prevent criminal behaviour, but may have a direct effect on how proceedings following the breakdown of a relationship are dealt with in the family courts.
For now, it will be a case of monitoring the situation to see how much reliance police forces are going to place on these orders. In the meantime, it may be something family practitioners need to bear in mind when advising clients on proceedings that involve an element of stalking.