The Problematic Development of the Stalking Protection Order
| DOI | http://doi.org/10.1111/1468-2230.12508 |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12508
LEGISLATION
The Problematic Development of the Stalking
Protection Order
Rory Kelly∗
In 2019, Parliament enacted the Stalking Protection Act. The Act introduces the stalking
protection order (SPO); a civil measure the breach of which is an offence. The role of
courts in assessing whether similar behaviour orders are penalties has attracted significant
scholarly attention. This article examines instead the roles of Government and Parliament
in developing the stalking protection order. My central contention is that the Home Office
undertook a problematic consultation and the issues to which it gave rise were not addressed
in later parliamentary debates. The result was the enactment of a coercive measure of unclear
purpose and questionable efficacy. Assessing the roles of the executive and legislature in
developing the SPO also allows for fresh insight into wider discussions of behaviour orders.
Specifically, I question the language of ‘prevention’ that is ever-present in such discussions
and describe an important development for debates on whether behaviour orders are
penalties.
Since the enactment of the anti-social behaviour order (ASBO) in 1998, Par-
liament has introduced hybrid behaviour orders with remarkable frequency.1
In 2019 alone, the Government has moved to introduce a domestic abuse pro-
tection order;2and Parliament has extended the scope of the serious crime
prevention order,3enacted the knife crime protection order4and also enacted
the stalking protection order (SPO).5The last order is the subject of this arti-
cle. What unites hybrid behaviour orders is that they can be imposed following
proceedings that apply civil evidential rules, but breach is a criminal offence.6
Courts have repeatedly assessed whether particular hybrid behaviour orders
∗Faculty of Laws, UCL. My thanks to Harry Annison, Andrew Ashworth, Karl Laird, Leila Tai,
Lucia Zedner and the anonymous reviewers for their insightful comments on earlier drafts of this
article. All URLs were last accessed on 6 September 2019.
1 Crime and Disorder Act 1998, s 1.
2 Domestic Abuse Bill 2017-19 (HC Bill 422), cls 26-46.
3 Counter-Terrorism and Border Security Act 2019, s 14.
4 Offensive Weapons Act 2019, ss 14-33.
5 Stalking Protection Act 2019, s 1.
6 Hybrid behaviour orders, form part of a wider taxonomy of behaviour orders. See, R. Kelly and
A. Ashworth, ‘State Responses to Criminal Offences in England and Wales and the Problemof
Equality’ in M. Dyson and B. Vogel (eds), The Limits of Criminal Law (Cambridge: Intersentia,
2018). The possible exception to the use of civil evidential rules in the initial proceeding is the
criminal evidential standard: R (McCann) vManchester Crown Court (McCann) [2003] 1 AC 787
at [37] per Lord Steyn, [81]-[83] per Lord Hope, [114] per Lord Hutton.
C2020 The Author.The Moder n Law Review C2020 The Modern Law Review Limited. (2020) 83(2) MLR 406–427
Rory Kelly
constitute penalties.7If an order does constitute a penalty, proceedings for its
imposition will attract additional human rights safeguards such as the ban on
retrospectivepunishment and heightened f air trial rights.8Much of the existing
literature queries whether the appellate courts have been right to classify vari-
ous hybrid behaviour orders as non-penal.9In this article, I turn from the work
of the courts, to assess the respective roles of Government and Parliament in the
development of the SPO. Given the hybrid behaviour order model continues
to proliferate and to be classed as non-penal, further insight into how and why
these coercive measures are developed is needed.
Stalking itself is an insidious behaviour. The Crime Survey for England and
Wales reports that around one in five women and one in 10 men have been the
victim of stalking.10 In addition, stalking garnered significant media attention
after a string of high profile incidents, including the stalking of Newsnight
presenter Emily Maitlis, and singer Lily Allen.11 Given this, it is little wonder
that the Government moved to address stalking. In particular, it movedto tackle
‘stranger stalking’, that is stalking where no or only a casual relationship exists
between the stalker and their victim. In December 2015, the Home Office
consulted on the introduction of the SPO.12 In December 2016, it produced
a Summary of Responses which set out plans to legislate to introduce the
SPO.13 The Stalking Protection Bill received its first reading in July 2018
before it was enacted in March 2019. The introduction of the order forms part
of the Government’s wider plans to tackle violence against women and girls.14
The purpose of this article is not to critique the Government’s laudable aim
of tackling stalking. Instead, it is to critically appraise the development of the
SPO and the respective roles of Government and Parliament in this process. I
7 The leading judgment remains that of the House of Lords in McCann ibid. See also the recent
judgment of the Court of Appeal on gang injunctions and anti-social behaviour injunctions:
Birmingham City Council vJones (Secretary of State for the Home Department intervening) [2019] QB
521 (Jones). For comment, R. Kelly, ‘Reconsidering the Punishment-Prevention Divide’ (2019)
135 LQR 12.
8 The ban on retrospective punishment is contained in the European Convention of Human
Rights, Art 7 and the heightened criminal fair tr ial safeguards are contained in Arts 6(2)-(3).
9 Examples include, A. Ashworth, ‘Social Control and “Anti-Social Behaviour”: The Subversion
of Human Rights?’ (2004) 120 LQR 263’; C. Bakalis, ‘Asbos, “Preventative Orders” and the
European Court of Human Rights’ (2007) 4 EHRLR 427; G. Pearson, ‘Hybrid Law and
Human Rights – Banning and Behaviour Orders in the Appeal Courts’ (2006) 27 Liverpool Law
Review 125.
10 Office of National Statistics, Crime in England and Wales Annual Supplementary Tables (2019)
table S40. The definition of ‘stalking’ relied on in the survey is not identical to the legal
definition: Office of National Statistics,
User Guide to Crime Statistics for England and Wales (2019) 51 and 76. The proportion of men
and women stalked were similar when government consulted on the SPO: Office of National
Statistics, Crime in England and Wales Annual Supplementary Tables (2016) table 39.
11 O. Bowcott, ‘Maximum Sentence for Stalking to Rise to 10 Years’ The Guardian 6January
2017) at https://www.theguardian.com/law/2017/jan/06/maximum-sentence-for-stalking-to-
rise-to-10-years.
12 Home Office, Introducing a Stalking Protection Order – a Consultation (2015).
13 Home Office, Introducing a Stalking Protection Order – a Consultation: Summary of Responses (2016)
9; Home Office, Impact Assessment: Introducing a Stalking Protection Order – a Consultation: Summary
of Responses (2016).
14 Home Office, ‘Violence Against Women and Girls’ at https://www.gov.uk/government/polic
ies/violence-against-women-and-girls.
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(2) MLR 406–427 407
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