Section 129 Stalking protection orders on convictionI1

In Part 11 of the Sentencing Code (behaviour orders), after Chapter 3 insert—

“Chapter 3A

Stalking protection orders

Stalking protection order

364A

(1)

In this Chapter “stalking protection order” means an order under section 364B which, for the purpose of preventing the person from carrying out acts associated with stalking—

(a)

prohibits the person from doing anything described in the order;

(b)

requires the person to do anything described in the order.

(2)

See section 2A of the Protection from Harassment Act 1997 for examples of acts associated with stalking.

(3)

A stalking protection order has effect—

(a)

for a fixed period specified in the order, or

(b)

until further order.

(4)

Where a fixed period is specified it must be a period of at least two years beginning with the day on which the order is made.

(5)

A stalking protection order may specify periods for which particular prohibitions or requirements have effect.

(6)

In this Chapter, “acts” includes omissions.

Power to make stalking protection order

364B

(1)

This section applies where a court is dealing with an offender for an offence.

(2)

The court may make a stalking protection order in respect of the offender if satisfied on the balance of probabilities that—

(a)

the offender has carried out acts associated with stalking,

(b)

the offender poses a risk associated with stalking to any person (whether or not that person was the victim of the acts mentioned in paragraph (a)), and

(c)

the proposed order is necessary to protect that person from such a risk.

(3)

A court may include a prohibition or requirement in a stalking protection order only if satisfied on the balance of probabilities that the prohibition or requirement is necessary to protect a person mentioned in subsection (2)(b) from a risk associated with stalking.

(4)

It does not matter—

(a)

whether the acts mentioned in subsection (2)(a) were carried out in the United Kingdom or elsewhere, or

(b)

whether they were carried out before or after the commencement of this section.

(5)

A risk associated with stalking—

(a)

may be in respect of physical or psychological harm to the person concerned;

(b)

may arise from acts which the offender knows or ought to know are unwelcome to the person concerned even if, in other circumstances, the acts would appear harmless in themselves.

Prohibitions and requirements included in orders

364C

(1)

Prohibitions or requirements included in a stalking protection order must, so far as practicable, be such as to avoid—

(a)

any conflict with any religious beliefs of the offender, and

(b)

any interference with any times at which the offender normally works or attends an educational establishment.

(2)

A prohibition or requirement applies in all parts of the United Kingdom unless expressly limited to a particular locality.

(3)

Subsection (4) applies where a court makes a stalking protection order in relation to an offender who is already subject to such an order (whether made by that court or another).

(4)

The court may not include any prohibition or requirement in the new stalking protection order which is incompatible with a prohibition or requirement in the earlier stalking protection order.

Variations, renewal or discharges of stalking protection order

364D

(1)

The offender or a relevant chief officer of police may apply to an appropriate court for an order varying, renewing or discharging a stalking protection order.

(2)

Before making a decision on an application under subsection (1), the court must hear—

(a)

the offender, and

(b)

any relevant chief officer of police who wants to be heard.

(3)

On an application under subsection (1) the court may make any order varying, renewing or discharging the stalking protection order that the court considers appropriate.

(4)

But the court may not—

(a)

in renewing or varying an order, impose an additional prohibition or requirement unless satisfied on the balance of probabilities that it is necessary to do so in order to protect a person from a risk associated with stalking;

(b)

discharge an order before the end of two years beginning with the day on which the order was made without the consent of the offender and—

(i)

where the application was made by a chief officer of police, that chief officer;

(ii)

in any other case, the chief officer of police for the area in which the offender resides, if that area is in England or Wales.

(5)

In this section—

• “appropriate court”, in relation to an application to vary, renew or discharge a stalking protection order, means—

  1. (a)

     where the order was made by a magistrates’ court, any other magistrates’ court acting in the local justice area in which that court acts;

  2. (b)

     where the order was made by a youth court—

     1. (i)

        if the defendant is under the age of 18 at the time the application is made, the youth court that made the order, or any other youth court acting in the local justice area in which that court acts;

     2. (ii)

        if the defendant is aged 18 or over at the time the application is made, any magistrates’ court acting in the local justice area in which the youth court that made the order acts;

  3. (c)

     where the order was made by any other court, the Crown Court;

• “relevant chief officer of police” means—

  1. (a)

     the chief officer of police for the area in which the offender resides, or

  2. (b)

     any chief officer of police who believes that the offender is in, or is intending to come to, that chief officer’s police area;

• “risk associated with stalking” is to be read in accordance with section 364B(5).

Content of orders

364E

A stalking protection order must specify—

(a)

the date on which the order is made;

(b)

whether it has effect for a fixed period and, if it does, the length of that period;

(c)

each prohibition or requirement that applies to the offender;

(d)

whether any prohibition or requirement is expressly limited to a particular locality and, if it is, what the locality is;

(e)

whether any prohibition or requirement is subject to a fixed period which differs from the period for which the order has effect and, if it is, what that period is.

Appeals

364F

(1)

An appeal against the making of a stalking protection order may be brought by the offender as if the order were a sentence passed on the offender for an offence.

(2)

Where an application is made under section 364D for an order varying, renewing or discharging a stalking protection order—

(a)

the person who made the application may appeal against a refusal to make an order under that section;

(b)

the offender may appeal against the making of an order under section 364D on an application by a chief officer of police;

(c)

a relevant chief officer of police may appeal against the making of an order under section 364D on an application by the offender.

(3)

An appeal under subsection (2) is to be made—

(a)

to the Court of Appeal if the application under section 364D was made to the Crown Court;

(b)

to the Crown Court in any other case.

(4)

An appeal under subsection (2) to the Court of Appeal may be made only with the permission of that court.

(5)

On an appeal under this section, the court may make—

(a)

such orders as may be necessary to give effect to its determination of the appeal, and

(b)

such incidental or consequential orders as appear to it to be appropriate.

(6)

A stalking protection order that has been confirmed, varied or renewed on an appeal remains an order of the court that first made it.

(7)

In this section, “relevant chief officer of police” has the same meaning as in section 364D.

Offence of breaching stalking protection order

364G

(1)

A person who, without reasonable excuse, breaches a stalking protection order commits an offence.

(2)

A person who commits an offence under this section is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, or a fine, or both, or

(b)

on conviction on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both.

(3)

If a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make an order under section 80 (conditional discharge).

(4)

In proceedings for an offence under this section, a copy of the original stalking protection order, certified by the designated officer for the court which made it, is admissible as evidence of its having been made and of its contents to the same extent that oral evidence of those things is admissible in those proceedings.

Notification requirements

364H

For provision imposing notification requirements on a person subject to a stalking protection order, see the following provisions of the Stalking Protection Act 2019—

(a)

section 9 (notification requirements);

(b)

section 10 (method of notification and related matters);

(c)

section 11 (offences relating to notification).”

In section 80(3) of the Sentencing Code (list of circumstances where an order for conditional discharge is not available)—

In the Stalking Protection Act 2019—