Major Update for Victims of Stalking

In recent years the public have become increasingly aware of the damage caused by stalking. Netflix currently has a hit show, called Baby Reindeer, which examines this kind of behaviour.

Although ‘celebrity stalkers’ often make the headlines (David Beckham, Claire Foy and Harr Styles are recent victims), 436 interim and full Stalking Protection Orders (SPOs) were granted between January 2020 – 2021.

Following the case of Malik v Commissioner of Police of the Metropolis [2023] EWHC 3213 (Admin), in which Russell Fortt and Conor Monighan were instructed, the Home Office has updated its Statutory Guidance to make it easier for Chief Officers to obtain SPOs. This article summarises the change.

The Stalking Protection Act 2019

The Stalking Protection Act 2019 allows the police to apply for SPOs. SPOs are civil orders designed to protect individual(s) from stalking. Applications are made in the Magistrates’ Courts, though in practice more challenging cases are usually heard by a District Judge (MC).

Section 2 of the 2019 Act sets out a three-part test:

1. Has the Defendant carried out acts associated with stalking?
2. Does the Defendant pose a risk of stalking to another person?
3. Is an order 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))?

It is also possible to obtain an interim order pending the conclusion of the final hearing. These are essentially orders which are rapidly imposed to preserve the position until the trial is concluded.

Standard of Proof

Criminal Standard?

Practitioners had historically thought that the criminal standard of applied to SPO application proof (i.e. that the court had to be ‘sure’). That was for two reasons.

Firstly, in McCann v Crown Court at Manchester [2003] 1 AC 787 the House of Lords considered an equivalent power to make an anti-social behaviour order (historically governed by the Crime and Disorder Act 1998). The 1998 Act was silent on the correct standard of proof to be applied. The House of Lords concluded that, for practical reasons, the criminal standard should be applied to the fact-finding exercise, with the issue of necessity being a matter of judgment and evaluation (at §37, 83 & 114).

Practitioners also believed that the criminal standard of proof applied because of the Statutory Guidance on Stalking Protection Orders. This stated it was “likely” that courts would apply the criminal standard of proof in light of McCann.

Jones

Last year, however, the Supreme Court decided the case of Jones v Birmingham City Council [2023] UKSC 27. Jones concerned an application for a gang injunction pursuant to the Anti-social Behaviour, Crime and Policing Act 2014. The Appellant argued that the Court of Appeal had erred by distinguishing McCann and, in any event, a criminal standard of proof should apply (at §12).

The Supreme Court, in rejecting the appeal, conducted a wide-ranging survey of the law and concluded:

“52 […] It is now clearly established that there are two standards of proof in domestic law: a civil standard (balance of probabilities) and a criminal standard (beyond a reasonable doubt). There is therefore no longer any need on pragmatic grounds to apply the criminal standard in that context [i.e.  the context considered in McCann] […]

56. For these reasons, I do not consider that McCann is authority for the proposition that anti-social behaviour within section 1(1)(a) of the 1998 Act required to be proved to the criminal standard. The standard of proof under section 1(1)(a) of the 1998 Act was the civil standard of proof on the balance of probabilities and to the extent that any reasoning in the McCann opinions is to the contrary effect it is in my view wrong” (at §52 & 56)”

Malik

In Malik, an appeal to the High Court concerning an unlawful costs order made by the Magistrates’ Court following an unsuccessful SPO application, the court agreed (albeit obiter) with submissions made by Conor Monighan and Russell Fortt that the civil standard should apply. It stated:

… “Jones v Birmingham City Council [2023] UKSC 27 suggests that the true position may be that the civil standard applies” … (at [28])

Change to Statutory Guidance

The Home Office have updated its Statutory Guidance, available here, to reflect this change. It now states as follows:

“34. Additionally, it is likely that the courts will apply the civil standard of proof (balance of probabilities) 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), alongside the fact-finding elements of an interim SPO application, namely treating it as an exercise of judgement or evaluation.

35. (It is likely that the courts will also apply the civil standard of proof to the non-fact-finding element of both the ‘full’ SPO application (whether an order is necessary to protect another person) and the interim SPO application (whether it is appropriate to make an interim order), but will rather take the position that they represent an exercise of judgement or evaluation”

Comment

Victims of stalking and Chief Officers will be pleased with the updated Statutory Guidance, which will make it easier to obtain SPOs.

The change is a logical one. The higher courts have repeatedly held, including in McCann and Jones, that protective civil orders are not penal sanctions – making it strange that a criminal standard of proof would apply to a civil application. Up until now SPOs were an outlier among the civil orders. It was odd that an Anti-Social Behaviour Injunction could be obtained by reference to the civil standard but SPOs (which have similar consequences) were subject to a higher standard of proof.

On the other hand, it is unfortunate that the updated Guidance appears to have missed out the word “not” from paragraph [35]. This is liable to lead to confusion because it does not make the necessity test clear. The author submits that, as per McCann, the issue of necessity remains a matter of judgment and evaluation for the court. Jones did not critique the necessity test formulated in McCann and therefore it remains good law in that respect.

Conor Monighan is an expert in stalking cases and has obtained numerous Stalking Protection Orders to protect victims.

He is regularly instructed in high-profile, sensitive and complex stalking cases and is a ‘go to’ junior for legal challenges arising from civil orders. He was junior counsel in Malik v Commissioner of Police of the Metropolis [2023] EWHC 3213 (Admin), which concerned the standard of proof and costs principles that apply to SPOs.

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Authors

Conor Monighan

Call 2019

Related areas

Police Law

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