A restraining order is created by a criminal court and issued to an individual to prevent them from pursuing a particular type of behaviour.
This could be anything from repeatedly visiting the property of an individual or frequently contacting the individual through social media, email or telephone when they have been repeatedly asked not to do so.
A restraining order can also be used to protect a victim of crime from a defendant.
There is no set amount of time that a restraining order can apply for; it can be indefinite or for a short period of time.
The nature of the order will be determined by the type of crime that has been committed by the defendant. When a restraining order is issued it usually prohibits the defendant from contacting the victim either directly or indirectly and prevents them from going near or anywhere in the vicinity of their premises.
When Could a Restraining Order be Used?
A restraining order can be used in a number of different scenarios. However, before the 30th September 2009, a restraining order could only be granted if the defendant was convicted of an offence which fell under the Protection from Harassment Act 1997.
It was believed that the legislation needed to relate to a much broader range of individuals and it was amended by the Domestic Violence, Crime and Victims Act 2004. The remit of the act now covered a much broader spectrum of individuals and related to anyone convicted or acquitted of any criminal offence after 30th September 2009.
It is often the discretion of the court who will decide whether a restraining order is issued. The prosecuting side will usually apply for an order if they believe that the nature of the case warrants a restraining order. Courts will approve and issue the order if they agree that it is required to protect the victim from harassment by the defendant.
There are particular cases where a restraining order may be appropriate such as;
- Where a defendant and witness are known to each other or they have been in a relationship, perhaps in a domestic violence case
- Where the parties have regular contact – This could be where the victim runs a local group, a business or a store.
- In a situation where evidence has been provided to indicate that the victim has been targeted by the defendant in any way such as criminal damage or a minor public order offence
It is worthwhile noting however that restraining orders are not limited to the above cases, they can be applied in an array of different scenarios and it is often up to the courts to decide whether one is appropriate.
Standard of Proof
When bringing a case to court there is often a standard of proof applied to proceedings. However, with a restraining order the legislation does not support the routine standard of proof. In the majority of cases evidence supplied by the prosecution will be adequate enough to decide whether or not to make an order.
The decision will be based on criminal standards which state that is beyond reasonable doubt after conviction following a trial or when the defendant has made a guilty plea.
When orders are made in relation to an acquittal, a decision to grant an order will be decided if the court have determined that there was insufficient evidence to proceed to a conviction, but there is adequate and clear evidence that an order is required to prevent additional offences.
Evidence in support of an application
When an application is made by a defendant for a restraining order, the court may have to consider evidence they have heard during a trial. Nevertheless, they can also request additional evidence and this is often required if the defendant has been acquitted of the crime.
Evidence for a restraining order can include but is not limited to;
- Information which has not formed part of the trial
- Any previous convictions
- Injunctions or non-molestation orders
Materials which have been collected during the course of incident reports, intelligence or other criminal information gathering processes
A prosecutor will always try to determine whether a restraining order is necessary or required from the outset. They will also need assistance from the police to ascertain the viewpoint of the victim. Even in situations where the prosecution has provided no evidence, courts can still make a restraining order but prosecutors must carefully consider the application process for a restraining order. As no evidence has been heard, prosecutors will have to provide evidence in support of their request to the court.
Evidence can be submitted using section 5A(2) as well as section 5(3A) of the PHA 1997. Evidence which would be admissible during any proceedings for an injunction would be allowable for the purpose of acquiring a restraining order on acquittal. Courts would insist on further evidence before they can satisfy themselves that the restraining order is required. Evidence would include sworn testimonies, exhibits and facts. With a restraining order the court doesn’t have to reach the conclusion that a criminal offence has been committed beyond reasonable doubt, but provided that there is adequate evidence on the balance of probabilities they should impose the order to safeguard a victim.
Restraining Order Content
There are specific pieces of information which must be included in a restraining order including the names of the individuals making the order and the defendant and who the order is to protect. Terms of the restraining order must be clear and very detailed so there is no room for interpretation by the defendant. Defendants should know exactly what they cannot do. The terms of an order should also be practical but not overly excessive or unworkable. Copies of the order should be provided to the defendant in a court or sent to a prison if they are serving a custodial sentence. The defendant must be fully aware of the information contained within the order.
Amending a Restraining Order
When applying the legislation from the Protection from Harassment Act 1997, a defendant, prosecutor or any individual named on the order may apply to the court to have a variation applied or for the order to be discharged entirely. A defendant or other individual named on the order has the right to a hearing in court to vary or discharge the order under the Crime and Victims Act 2004.
Breaching a Restraining Order
Once an order has been made but a defendant continues to act in such a way that is against the terms listed in the order, they can be arrested and charged with breach of a restraining order in accordance with section 5 of the Protection from Harassment Act 1997. Any breach of a restraining order can be tried in either a Magistrates Court or Crown Court and the maximum penalty which can be imposed on the defendant is a Level 5 fine, a six month custodial sentence, or an unlimited fine and five years in prison at Crown Court. The sentence handed down will depend on the nature and the number of the breach, whether violence was used or if the victim experienced a significant level of harm or anxiety. Courts also have the power to discharge or extend a restraining order where required.
When can a restraining order be used?
Restraining orders don’t just apply to criminal situations; they can also apply to non-criminal scenarios such as neighbour nuisance or instructing those currently in litigation to leave each other alone. A restraining order in a civil context can also be referred to as a temporary injunction which, if necessary can evolve into a permanent injunction.
Restraining orders are there to protect victims but it is often down to the discretion of the court as to whether they are granted.
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