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Stalking: Legal Framework and Practical Challenges
By Nicola Smith and Rowena Wisniewski-Sethi
Part 1 – Hearsay Evidence in Stalking Protection Order Applications
In the past 12 months, there has been a notable shift in public awareness of stalking, a trend likely influenced by the Netflix series Baby Reindeer, which has highlighted that stalking is not reserved for the wealthy or high-profile—it can happen to anyone. In January, Rowena Wisniewska Sethi discussed the importance of the Stalking Protection Act 2019, which enables a Stalking Protection Order ("SPO") to be obtained. Over the past 18 months, there has been a marked increase in SPO applications, and with that, a range of practical challenges in navigating civil applications within the criminal courts. Over the coming weeks, we will explore these challenges and offer practical guidance.
Stalking Protection Orders (SPOs), introduced under the Stalking Protection Act 2019, are civil orders designed to protect individuals from stalking behaviours at an early stage, often before a criminal conviction. Given the urgency and nature of these applications, Hearsay Evidence (statements made outside of court and presented to prove the truth of their content) is frequently relied upon. This raises important questions about admissibility, fairness, and the rights of respondents.
Legal Framework for Hearsay in SPO Proceedings
SPOs are civil in nature, and therefore the Civil Evidence Act 1995 (“CEA”) governs the admissibility of hearsay in SPO proceedings. Under Section 1 CEA, hearsay is generally admissible in civil proceedings, provided that proper notice is given and the court is satisfied that admitting the evidence is fair and just.
The standard of proof is the balance of probabilities, but courts must still scrutinise hearsay carefully, especially where it is central to the application. The Human Rights Act 1998 and Article 6 ECHR (right to a fair trial) also apply, particularly where the consequences of an SPO—such as restrictions on liberty and criminal sanctions for breach—are significant.
Hearsay Notice: Procedure and Requirements
A hearsay notice is a formal notification to the respondent and the court that the applicant intends to rely on hearsay evidence. The CEA and the Magistrates’ Court (Hearsay Evidence in Civil Proceedings) Rules 1999 (“MCHECP Rules 1999”) require that a hearsay notice, together with the evidence itself, must be served on the respondent at least 21 days before the hearing. If the court lists a hearing with less than three weeks’ notice, counsel should apply to vary the time limit. In reality, the urgent nature of SPO applications consequentially means that often, there is less than 21 days available to serve the notice. In our experience, hearsay notices served in these circumstances are usually permitted to stand, notwithstanding the short notice.
If an officer has already drafted a hearsay notice, it should be reviewed for accuracy and completeness. If not, the case holder should prepare one, ensuring all relevant witnesses are included. The Officer in the Case (OIC) should be available to give evidence, however, other relevant police officers’ statements should be included, as it is often disproportionate to require their attendance in person.
Common Sources of Hearsay in SPO Applications
Hearsay in SPO applications often includes:
● Statements from victims who are unwilling or unable to attend court.
● Third-party accounts from neighbours, friends, or colleagues.
● Police intelligence or risk assessments
● Social media screenshots or messages forwarded by others.
While such evidence can be compelling, its reliability and admissibility must be carefully assessed.
Challenging Hearsay: Legal Considerations
Respondents and their legal representatives can challenge hearsay on several grounds:
● Procedural Compliance: Has the applicant complied with the notice requirements under the Civil Evidence Act 1995?
● Reliability and Weight: Courts must consider the source, timing, and consistency of the hearsay. Is it corroborated by other evidence?
● Cross-Examination: If the maker of the statement is not called to give evidence, the respondent may argue that the inability to cross-examine undermines fairness.
● Article 6 ECHR: If hearsay is the sole or decisive evidence, its admission may breach the respondent’s right to a fair hearing.
● Judicial Discretion: Courts retain discretion to exclude hearsay if its prejudicial effect outweighs its probative value.
Rule 4 of the MCHEPC Rules 1999 allows the respondent to apply to call and cross-examine any witness whose statement is tendered as hearsay, provided a formal written application is made within seven days of service of the notice. However, in our experience, courts are very reluctant to require witnesses to attend court for cross examination, particularly where there are no disputed facts. It is widely accepted that court processes can be used to facilitate the further harassing and stalking of victims and this must be robustly challenged.
Practical Tips for Applicants (e.g., Police or Legal Representatives):
● Prepare a clear, timely, and detailed hearsay notice.
● Corroborate hearsay with other evidence (CCTV, call logs, digital communications).
● Anticipate challenges and be ready to explain the necessity and reliability of the evidence.
● Use body-worn video (BWV) and contemporaneous records to bolster reliability.
● Consider special measures to accommodate witness attendance if absolutely necessary.
Conclusion
Hearsay evidence is a common feature of SPO applications, reflecting the need for swift protective action in stalking cases. However, its use must always be balanced against the respondent’s right to a fair hearing. Lawyers must be proactive in either justifying or challenging hearsay, ensuring that the court is equipped to make a fair and informed decision. As case law continues to evolve, particularly in the context of protective orders and domestic abuse, staying up to date with procedural requirements and evidential strategies is essential.
Nicola Smith
Associate-Police, Care and Justice Team
DWF
http://www.linkedin.com/in/nicsmith-lawyer
Rowena Wisniewski-Sethi
Barrister
4-5 Gray’s Inn Square
https://www.linkedin.com/in/rowena-wisniewska-b1713271/
November 2025