What are protective orders?
To help prevent a person causing harm or annoyance to another person, a court can issue a protective order. They put different restrictions on a person depending on the severity of the case.
The two most common orders are restraining orders and non-molestation orders.
Under the protection from Harassment Act 1997 it is an offence for a person to act in a manner that will cause another person harassment or make them fearful of violence towards them.
When a person is sentenced, they may also have a restraining order imposed upon them. Although they may be applied in a wide variety of situations, they are most commonly made in conjunction with crimes under The Domestic Violence, Crime and Victims Act 2004. This act provides for orders to be made on conviction or following acquittal of any offence.
If a person fails to comply with the order, it is an offence under section 5(5) of the Act and this offence is punishable with up to five years imprisonment. If a person fails to comply, it will be down to them to provide a reasonable excuse for non-compliance.
The Family Law Act 1996 makes is possible for a court to make a non-molestation order that stipulates one or both of the following provisions:
A provision that prohibits a person from molesting another person who is associated with the respondent
A provision that prohibits a person from molesting a relevant child
The Domestic Violence, Crime and Victims Act 2004 makes it an offence for a person to fail to comply with an order without having a reasonable excuse and this offence is punishable with up to five years imprisonment. A person who breaches a non-molestation order may also be held in contempt of court and dealt with appropriately.
Breach of a protective order
The circumstances of a breach will usually be taken into account. This may include questioning whether:
It was an isolated breach or part of a wider trend in a person’s behaviour
The breach was planned or not
What the consequences of the breach (e.g. physical injury, distress) are
The circumstances of the original offence might also be taken into account so that the level of harm caused to the victim by any breaches can be assessed. This may also have a bearing on the court’s assessment of how much harm was intended by the offender. If the original offence was extremely serious, then any breaches may cause a great deal of harm to the victim, even if the circumstances of a breach are apparently minor. Phone calls, for instance, may cause a victim a lot of grief, even if taken on its own the action is inoffensive.
A breach may or may not also qualify as a substantive offence. If it does, then both the breach and the substantive offence will be treated as two discrete issues and tried separately as two separate counts.
For more information on:
- Violent breaches
- Non-violent breaches
- Aggravating factors
- The vulnerability of the victim
- Age, disability or pregnancy
- Attempts to prevent the breach being reported
- Offender’s history
- Mitigating factors
- Victim initiated contact