Introduction: what this means for you

A Stalking Protection Order (SPO), is a court order designed to protect a person from risks associated with stalking. It is not the same as being convicted of stalking and they can be made independently of any criminal proceedings, but it is still a serious legal order. If an order is made, it can control where you go, who you contact, what you do online and, in some cases, require you to take positive steps such as attending an assessment or giving the police information.

People sometimes refer to these orders as "stalking prevention orders", but the correct legal name is Stalking Protection Order. The distinction matters because an SPO has its own legal test, its own procedure and its own criminal offences if the order is breached.

For many people, the most unsettling feature of an SPO application is that it can be made even where there has not been a conviction for stalking. It may arise while the police are still investigating, where no charge has yet been brought, or even where no criminal charges have been brought at all. That does not mean an order should simply be accepted without question because if further allegations are made, you risk committing an offence by breaching the order and it may be referred to as evidence that you are a stalker in future.

What is a Stalking Protection Order?

An SPO is a protective order introduced by the Stalking Protection Act 2019. It is intended to allow the police to intervene earlier in cases where they say there is a risk associated with stalking, rather than waiting until a criminal prosecution has concluded.

The order is civil in nature, but breach is criminal. The application itself is dealt with in the magistrates' court as a civil application brought by the police. The person against whom the order is sought is usually called the respondent not the defendant because these are not criminal proceedings.

A full SPO can last for a fixed period or until further order. If a fixed period is imposed, it must last for at least two years. There is also a temporary version, known as an interim Stalking Protection Order, which can be made before the full application has been finally decided. Although interim orders are temporary, breach of an interim order is a criminal offence in the same way as breach of a full order. The test for imposing an interim order is less onerous for the police to meet than the legal test for a full order.

It should be noted that the period spent on the interim order does not count towards the time on the full SPO. Meaning that if an interim order is made and the final hearing takes a year to get to court then the court will have to make a full order for at least two years meaning you will have been on the order for a total of three years.

What sort of behaviour can lead to an Stalking Protection Order?

The court will be concerned with whether there have been acts associated with stalking and whether there is a future risk. Stalking is often thought of as following someone in the street, but the behaviour relied upon in these cases can be much broader.

Examples may include repeated unwanted contact, attempts to contact someone through different telephone numbers or accounts, turning up at places connected to them, monitoring their social media, watching or spying, sending unwanted gifts, making repeated references to them online, interfering with property, contacting their family or friends, using third parties to pass messages, or using complaints and legal processes as a way of maintaining contact.

The behaviour does not have to look obviously threatening when each incident is viewed in isolation. In many stalking cases, the concern comes from the pattern, persistence and context.

Context can also assist the respondent. Not every dispute, complaint, awkward relationship breakdown or poorly judged message amounts to stalking. A proper response begins by looking carefully at what is alleged and what evidence supports it. Is there a reasonable and rational explanation for the behaviour? For example, if John owes Mark £50,000 then you might think it entirely reasonable for Mark to make repeated attempts to contact John by telephone or attending his home/work in order to get his money back.

When can a Stalking Protection Order be made?

The police can apply for an SPO where they think there is a need to protect a complainant from somebody else. They are most commonly imposed after conviction, but the police may ask for an interim order at an early stage and then a full order later on. They might seek an SPO after acquittal or even instead of a prosecution. We have had cases where the complainant was willing to support an SPO but was not willing to support a prosecution.

An SPO is not limited to domestic abuse cases. It can also be used in stranger stalking cases, workplace situations, neighbour disputes, online conduct or cases involving someone known only loosely to the complainant. The person to be protected does not have to be the same person against whom the earlier alleged acts were directed, provided the legal test is met.

Applications are made to the magistrates' court by the police and must be authorised by an officer of at least superintendent rank. If the respondent is under 18, the matter will normally be dealt with in the youth court. Orders can be made against children from the age of 10, although the court will need to approach any such case with particular care.

The legal test for imposing a Stalking Protection Order

The court can make a full SPO only if three conditions are satisfied.

First, the court must be satisfied that the respondent has carried out acts associated with stalking. This does not necessarily mean that the court has to find that a criminal stalking offence has been committed, but it does require a proper evidential basis. The police should not be able to obtain an order on vague suspicion or general concern alone.

Second, the court must be satisfied that the respondent poses a risk associated with stalking to another person. The risk can include physical or psychological harm, or damage to property. The risk must be assessed by looking at the evidence, the history, the pattern of behaviour and the context.

Third, the court must be satisfied that the proposed order is necessary to protect another person from that risk. This is often where the argument becomes most important. Even if there has been troubling behaviour, the court must still ask what order is needed, what terms are justified, how long they should last, and whether the restrictions go further than necessary.

Because these are civil applications not criminal ones, it is the civil standard of proof that applies. That means that the court must decide the matter on the balance of probabilities, i.e. so that the making of the order is more likely than not to be necessary. That is lower than the criminal standard of proof, but the evidence still matters. A respondent can challenge the factual basis, the risk assessment and the proportionality of the terms requested.

What does a Stalking Protection Order include?

Stalking Protection Orders should be made bespoke to fit the facts of its own case. SPOs can contain requirements that you to do things or prohibit you from doing things, of course most will include both requirements and prohibitions.

Common prohibitions might include not contacting the complainant either directly or indirectly, e.g. through a third party; not attending their home or workplace; not approaching them within a specified distance; not referring to them on social media; not sending gifts; or not engaging in surveillance or monitoring.

Positive requirements tend to be more intrusive. Depending on the case, the police may ask for requirements such as attending an assessment, attending a perpetrator intervention programme, attending a mental health or substance misuse assessment, registering devices with the police, providing access to phones and social media accounts, as well as signing on at a police station.

The court should ensure that the terms are clear, specific and proportionate. If there are legitimate reasons for limited contact, such as child arrangements, shared property, work or legal proceedings, the order needs to be drafted with those issues in mind.

Consequences of ignoring the order

Once an SPO or interim SPO has been made, it must be taken seriously. The fact that the respondent disagrees with the order, believes the allegations are exaggerated, or thinks the other person is being unfair does not allow them to ignore it. Unless and until the order is varied, discharged or successfully appealed, it remains in force.

Breaching a Stalking Protection Order is a criminal offence. A breach could be obvious, such as sending messages to the protected person, attending their home, or approaching them in person. It could also be less direct, such as asking a friend to pass on a message, posting about them online. This is something that should be very carefully guarded against and we advise clients that if you must have social media then you should keep it locked down to avoid any suggestion you are trying to send messages to the complainant. We have had cases where the police prosecuted an alleged breach involving what they claimed was an (incredibly in our opinion) oblique reference to his former partner in the middle of a two minute video that was about walks in the countryside he’d taken that year. The police may not be successful in prosecuting such cases, but they cause a lot of distress, take up your time and waste your money defending yourself.

Orders also usually carry notification requirements. A person subject to an SPO or interim SPO must notify the police of their name and home address within three days of service of the order. If they later use a different name or change address, they must notify the police within three days. Failing to comply with those notification requirements, without reasonable excuse, is itself a criminal offence. Providing information that is knowingly false is also an offence.

Any breach must be committed without "reasonable excuse". A genuine emergency, unavoidable accidental contact, custody, hospitalisation, or a situation where the respondent could not realistically comply may be relevant. Wanting to explain yourself, apologise or respond to a message will not be a reasonable excuse for ignoring the order.

What happens next if the order is ignored?

If the police believe an SPO has been breached, they may arrest and investigate the allegation as a criminal offence. Evidence may include statements, phone downloads, messages, CCTV, social media material, location data and account records.

The CPS is not responsible for applying for the SPO in the first place, but it is responsible for prosecuting alleged breaches and offences relating to notification requirements. In some cases, the breach allegation may be charged by itself. In others, the police and CPS may consider whether further offences have also been committed, such as stalking, harassment, malicious communications, assault, criminal damage or witness intimidation.

If a person is charged with breaching an SPO, the case can be dealt with either in the magistrates' court or the Crown Court. The route will depend on the seriousness of the alleged breach, the level of harm or distress caused, the respondent's history, any linked offending, and whether the case is considered too serious for the magistrates' court.

Possible sentences for breach

The maximum sentence for breaching a Stalking Protection Order or an interim Stalking Protection Order is five years' imprisonment in the Crown Court. In the magistrates' court, the maximum sentence is currently 6 months' imprisonment for a single offence or 12 months where they are sentencing multiple offences. The court can also impose a community order or a fine. The same maximum penalties apply to offences relating to notification requirements.

The sentence in any individual case will depend heavily on the facts. The court will consider how deliberate the breach was, whether it was persistent, whether it caused serious distress or fear, whether it happened soon after the order was made, and whether the breach involved further offending.

Even where prison is not imposed, a conviction for breach can make future proceedings more difficult and may lead to the order being varied, extended or made more restrictive.

Defence approaches to Stalking Prevention Orders

There are two broad stages where legal advice will help. The first is before the order is imposed. We can assist by giving you an independent perspective on the allegation being made and advising you on how likely the police are to succeed in obtaining an Order against you, as well as how likely you are to successfully defend the police application.

We begin by listening to your account and then considering the evidence against you. If you decide to oppose the application, we can look to challenge the evidence to prevent an order being imposed. If the court decides against you, we will look to argue that a Stalking Prevention Order is not necessary, in all the circumstances, to protect the complainant.

The second point where legal advice is a must is following an alleged breach. Important questions include whether the order was valid and properly served, exactly what term is said to have been breached, whether the wording was clear, whether the alleged conduct is proved, whether the respondent was responsible for it, whether the breach was accidental, and whether there was a reasonable excuse.

Digital evidence should be handled carefully. Screenshots, message chains, timestamps and account records can be misunderstood if they are presented without context.

How Chetwode’s can help

Stalking Protection Orders can have significant consequences even before any criminal charge is brought. They can affect where you go, how you use your phone, your online activity, your work, your family arrangements and your reputation. If you are served with an application, or accused of breaching an order, it is sensible to get advice before responding to the police or attending court.

When you contact Chetwode Criminal Defence Solicitors we can review the application, advise on the evidence, help identify practical problems with the proposed terms, represent you in court and assist with variation, appeal or breach proceedings. Our focus is on careful preparation, sensible strategy and protecting your position while ensuring that any court order is no wider than the law permits.

Next steps

If you have received notice of an SPO application, an interim order, or an allegation that you have breached an order, do not contact the protected person to try to resolve it yourself. Keep all relevant messages, call logs, social media material and documents, and seek specialist advice as soon as possible.