What is a restraining order?
This is an order made by a criminal court to stop a person from continuing to pursue a course of conduct towards another. The order aims to protect a victim of crime from the defendant. It 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.
When is a restraining order imposed?
Before 30 September 2009, restraining orders could only be imposed in relation to defendants convicted of offences under the Protection from Harassment Act 1997 (PHA 1997). However PHA 1997 was amended by the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) and any person convicted or acquitted of any criminal offence after 30 September 2009 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 the defendant.
What is the standard of proof required to make a restraining order?
The legislation does not assist with the standard of proof required. In most cases, the evidence called by the prosecution will be sufficient proof 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. If a defendant is acquitted, the court may still make a restraining order if it feels this is required to protect the victim or other person.
The contents of a restraining order
The order should name the parties, ie, 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 s/he is prevented from doing. The terms should be practical and proportionate, ie, not excessive or unworkable. A copy of the order should be given to the defendant at court or sent to the prison if s/he is a serving prisoner to ensure the defendant is fully aware of the contents of the order.
Variation or discharge of the order
Under PHA 1997, the prosecutor, defendant or any party named in the order can apply to the court to vary or discharge the order. Under DVCVA 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.
Breach of a restraining order
If the defendant continues with the conduct prohibited by the order then s/he can be arrested and charged with the criminal offence of breach of a restraining order under s 5(5) of PHA 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 five fine or six months imprisonment, or a fine and/ or five years imprisonment in the Crown Court. 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 (ie, extend or discharge) the restraining order.