Protective Orders

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.

Restraining 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.

Non-Molestation orders

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. This also means that it is possible for consecutive sentences to be brought against a person if warranted by the seriousness of the offences.

In other cases, only the substantive offence or the breach will the charged and in such cases the sentence should reflect all the aspects of the offence so that the result is the same as if both counts had been charged. Usually this will be done by naming the second offence as an aggravating factor connected to the first, increasing the maximum sentence.

The main aim of sentencing when an order is breached should be to persuade the offender to comply with any further orders issued in the future. The penalty for a breach should be imposed to punish the breach itself and not the original offence, even though the original offence will have some bearing upon the case.

Violent breaches

Where a breach involves physical violence, a custodial sentence will normally be imposed. In all cases, the risk posed by the offender to the victim will be taken into account.

Non-violent breaches

A breach does not have to be violent for the result to be a custodial sentence. Non-violent behaviour or indirect contact can also cause or aim to cause a large amount of harm and when this is the case, a custodial sentence may be appropriate. If the offender can convince the court that they truly intend on modifying their behaviour and the court believes there is a good chance of their rehabilitation, then a custodial sentence may not be considered necessary. Instead a suspended sentence or community order may be issued or the person may be compelled to complete a rehabilitation program.

Aggravating factors

When considering the penalty imposed on a breach, there are many different factors that can be taken into account. They include:

The vulnerability of the victim

Some victims are more vulnerable than others and, where they are more vulnerable, the terms of a protective order may be even more important. As such, the penalties for breaching these terms will be more severe.

Age, disability or pregnancy

The age of the person, any disabilities they have and whether they are (or have recently been) pregnant may all be considered as aggravating factors.

Attempts to prevent the breach being reported

Any steps taken to stop the victim reporting the offence will be considered as aggravating factors.

Children

Breaches of orders that were made to protect children will generally be treated as far more serious offences. If contact arrangements with a child are exploited in order for a person to perpetrate an offence, this may be considered as an aggravating factor.

Offender’s history

If the offender has a history of violence or has frequently threatened a victim, then the offence will be considered more serious. If the offender has previous convictions, these may also be seen as aggravating factors.

  • Victim is forced to move home
  • If the consequence of a breach is that a victim moves home.

  • Time

The time period between breaches or between the order being issued and the offence will be taken into account. If the breach comes shortly after the order or a previous breach, it will generally be considered more serious

Mitigating factors

The following can mitigate the sentence imposed on an offender:

Victim initiated contact

If the victim contacts the offender and this causes the breach then it can be used as a mitigating factor.

Time

If the breach comes after a long period of compliance with the order, it may be considered less severe.