This is an order made by a criminal court to prevent a person from continuing to pursue a course of conduct towards another. The aim of the order is to protect a victim of crime from the defendant. The order can be for any length of time and could be indefinite. The conduct prohibited will depend upon the type of offending committed by the defendant. Frequently the order will prohibit contact directly or indirectly with the victim but could include keeping away from a property or premises.
Prior to the 30th September 2009 restraining orders could only be imposed in relation to defendants convicted of offences under the Protection from Harassment Act 1997. However this Act was amended by the Domestic Violence, Crime and Victims Act 2004 and any person convicted or acquitted after the 30th September 2009 of any criminal offence can be made subject to a restraining order. It is up to the court whether such an order is imposed. The prosecution usually applies for the order if the circumstances of the case warrant it and the court will make such an order if considered necessary to protect a person from harassment by the defendant.
The legislation does not assist with the standard of proof required. In most cases the evidence called by the prosecution will be sufficient evidence on which to make an order. This will have been established to the criminal standard that is beyond reasonable doubt following conviction after trial or following a guilty plea. In terms of an acquittal, although the court will have determined that there was insufficient evidence to convict of the offence charged they may conclude that there is clear evidence that such an order is necessary to prevent further offences.
The order should name the parties, that is the defendant and those protected. The terms of an order should be clear and precise so the defendant is left in no doubt as to what he is prevented from doing. The terms should be practical and proportionate that is not excessive or unworkable. A copy of the order should be given to the defendant at court or sent to the prison if he is a serving prisoner to ensure that the defendant is fully aware of the contents of the order.
Under the Protection from Harassment Act 1997 the prosecutor, defendant or any party named in the order can apply to the court to vary or discharge the order. Under the Domestic Violence, Crime and Victims Act 2004 any person named in the order including the defendant has the right to be heard in court concerning the application to vary or discharge the order.
If the defendant continues with the conduct prohibited by the order then he can be arrested and charged with the criminal offence of breach of a restraining order under s.5(5) of the Protection from Harassment Act 1997. This offence can be tried in either the Magistrates Court or the Crown Court. The maximum penalty in the Magistrates' Court is a level 5 fine or 6 months imprisonment and an unlimited fine and 5 years imprisonment in the Crown. The sentence imposed will depend upon whether there is a single or multiple breaches, whether violence was used and whether there was a high level of harm or anxiety caused. Custody will be the starting point when violence is used. The court can vary e.g. extend or discharge the restraining order.
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