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Stalking Protection Orders: burden and standard of proof, and appeals
Part 5 of the Legal Women Series on Stalking
By Nicola Smith-DWF, and Rowena Winsiewska; 4-5 Gray’s Inn Square
Continuing the discussion from Part 4 Bail Conditions vs Stalking Protection Orders https://legalwomen.org.uk/Stalking4.html
Stalking Protection Orders (SPOs), introduced by the Stalking Protection Act 2019 (SPA 2019), were designed to strengthen protection for victims through early, preventative intervention. Although applications are heard in the magistrates’ court, SPOs are civil orders.
This matters in practice: it informs (i) the burden and standard of proof the court applies when determining an application, and (ii) the appeal route available to a respondent. This article summarises the approach to standard of proof in SPO proceedings and outlines the statutory mechanism for appealing an SPO.
The SPA 2019 does not expressly state the standard of proof. However, because an SPO is a civil order, the court applies the civil standard: the balance of probabilities. The burden rests on the police applicant to satisfy the court of the statutory conditions (in particular: that the respondent has carried out acts associated with stalking; that the respondent poses a risk associated with stalking to another person; and that the order is necessary to protect another person from that risk). The Home Office statutory guidance for the police (updated April 2024) indicates it is likely the courts will apply the civil standard to both the fact-finding element (whether the respondent carried out acts associated with stalking) and the evaluative elements (risk and necessity).
That approach is consistent with the Supreme Court decision in Jones v Birmingham City Council [2023] UKSC 27. Although Jones concerned anti-social behaviour injunctions, the reasoning is of broader relevance to civil preventative orders determined in the magistrates’ court. The Supreme Court confirmed that where proceedings are civil, the court applies the ordinary civil standard to whether the relevant conduct occurred. The Court also made clear that “there is no such thing as a heightened civil standard”, moving away from the earlier analysis in R (McCann) v Crown Court at Manchester; Clingham v Kensington and Chelsea RBC [2002] UKHL 39.
In The Commissioner of Police of the Metropolis v Malik [2023] EWHC 3213 (Admin), the High Court applied Jones and proceeded on the basis that the civil standard of proof is the correct standard for SPO applications. Taken together, Jones and Malik provide strong support for the proposition that the magistrates’ court should determine SPO applications on the balance of probabilities.
Interim SPOs are governed by section 5 SPA 2019. The court may make an interim order if it considers it appropriate to do so, pending determination of the full application. In practice, the court will focus on whether interim restrictions or requirements are needed to manage risk in the intervening period, bearing in mind the preventative nature of the regime. The proceedings remain civil, and the civil standard (balance of probabilities) applies to the court’s assessment on the material before it.
Appeals
Section 4 SPA 2019 provides a right of appeal to the Crown Court against: (i) the making of an SPO, and (ii) the making, variation, renewal, discharge, or refusal of an SPO (or interim SPO) under the Act. On an appeal, the Crown Court may make any order necessary to give effect to its determination, together with any incidental or consequential orders it considers appropriate.
In practice, SPO appeals can look and feel very different from the original magistrates’ court hearing. Many appellants are litigants in person and appeals are often advanced (at least in part) on procedural grounds (for example: alleged defects in the notice of appeal, bundle/service issues, or complaints about the conduct of the original hearing). The Crown Court will usually case manage the appeal by directions and may list one or more interim hearings to deal with discrete issues (including whether any witnesses should give live evidence and, if so, how that evidence can be taken fairly).
From experience, the key to defending an appeal is preparation: ensure the court has a complete, clearly paginated bundle (including any hearsay notice(s) relied upon), identify early whether the appellant is seeking to cross-examine the protected person or other lay witnesses, and be ready to address safeguarding and special-measures style issues where appropriate. Where the appellant relies on selective screenshots, emails, or recordings, it can be effective to signpost the court to the wider context and (where proportionate) play short extracts that demonstrate tone, escalation, or manipulation. Finally, practitioners should assume that costs and timetabling will be live issues, particularly where the appeal notice is late, defective, or repeatedly amended or is simply seeking to retry the exact same points and issues that were determined in the Magistrates Court at first instance.
Practical points for practitioners
- The application is a civil preventative order: draft and present the evidence on the basis that the court will decide disputed factual issues on the balance of probabilities.
- Signpost the court to the statutory questions (acts associated with stalking; risk; necessity), and make clear which evidence supports each limb.
- Interim orders: focus submissions on immediate risk management pending the full hearing, and ensure prohibitions/requirements are clear, workable and proportionate.
- Appeals: Keep the appeal focused on the statutory questions (acts associated with stalking, risk and necessity/proportionality). It is common for appeals to drift into wider grievances; clear structure in written submissions helps the court stay anchored to the protective purpose of the order.
- Unless the court orders otherwise, an SPO remains in force unless and until it is varied, discharged or set aside on appeal.
As SPO practice continues to develop, clarity on the civil standard of proof, and on the appeal route, supports more consistent, defensible decision-making. For practitioners, the key is to keep applications tightly aligned to the statutory tests, supported by structured evidence and to ensure only clear, proportionate terms are sought.
Nicola Smith
Associate-Police, Care and Justice Team
DWF
https://www.linkedin.com/in/nicsmith-lawyer
Rowena Wisniewska-Sethi
Barrister
4-5 Gray’s Inn Square
https://www.linkedin.com/in/rowena-wisniewska-b1713271/
May 2026