Stalking Prevention Orders fall into a gap in the availability of special measures.
Special measures are available to witnesses (except the defendant) who give evidence in court. Put simply, they are measures that help eligible witnesses feel comfortable when giving their evidence with the aim of improving the quality of evidence received by courts. Why aren’t they available to defendants if the purpose is to ensure courts receive the best evidence? I’ll leave you to form your own opinion on that one.
Special measure can include a number of things, such as screens partitioning the witness from the defendant, giving evidence via video link, etc.
The power to allow special measures comes from the Youth Justice and Criminal Evidence Act 1999 (YJCEA) in criminal proceedings, and the Domestic Abuse Act 2021 (DAA) in civil proceedings.
The YJCEA applies to all criminal offences, so if somebody is on trial then special measures are available for all eligible witnesses except the defendant. The DAA allows for special measures in certain cases specified by the Special Measures in Civil Proceedings (Specified Offences) Regulations 2022. Importantly, the Regulations include stalking. Interestingly, the DAA applies only to “civil proceedings”, and in section 64 it specifies what counts as a civil proceeding,
“(4) In this section—
“civil proceedings” means—
(a) proceedings in the county court,
(b) proceedings in the High Court, other than—
(i) proceedings in the Family Division of the High Court which are business assigned, by or under section 61 of (and Schedule 1 to) the Senior Courts Act 1981, to that Division of the High Court and no other, and
(ii) proceedings in the exercise of its jurisdiction under the Extradition Act 2003, and
(c) proceedings in the civil division of the Court of Appeal;”
You’ll have spotted that proceedings under section 61 of the Senior Courts Act 1981 are excluded; that is because section 63 of the DAA creates a bespoke provision for family court proceedings.
Prior to the enactment of section 63, the case of Re W (Children) [2010] UKSC 12 provided authority for the idea that civil courts could use special measures where children gave evidence in the family courts. I would suggest that authority is limited to proceedings before the family court and is, in any case, is superseded now Parliament has specifically set out statutory provisions for the use of special measures in civil proceedings.
We turn now to Stalking Prevention Orders, which aim to limit the harm done by stalkers to their victims by placing legal restrictions on where the stalker can go, and what they can do. The police apply for Stalking Prevention Orders before the magistrates' court under provisions within the Stalking Prevention Act 2019.
Evidence must be called where an application is contested. Given the nature of stalking and the aim of special measures being to ensure the best quality evidence is heard by the court, you would think that special measures would be available. But that doesn’t seem to be the case.
Because Stalking Prevention Orders are applied for by way of complaint to the magistrates’ court, we know that they are civil law proceedings not criminal law proceedings. Since YJCEA special measures are only available in criminal proceedings, those provisions are not engaged in any civil proceedings.
So, we look to the DAA as a source for special measures. However, we’ve already seen that the DAA applies only to proceedings in the county court, High Court, and Court of Appeal. It does not apply to cases heard in the magistrates’ court. A court cannot therefore rely on the DAA as a power to allow special measures in such cases.
Where then are witnesses who claim to be the victims of stalkers left when seeking an order to protect themselves? Stuck in a gap between statutory provisions seems to be the answer.