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Restraining Orders - Section 5, Protection from Harassment Act 1997

Contents:

Legislation

Section 12 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) came into force on 30 September 2009, amending section 5 of the Protection from Harassment Act 1997 (PHA 1997). Section 5 of the PHA 1997 previously permitted a criminal court to make a restraining order only when sentencing or otherwise dealing with a defendant convicted of an offence of harassment (contrary to section 2 PHA 1997) or an offence of putting someone in fear of violence (contrary to section 4 PHA 1997). Its amendment enables the court to impose a restraining order in a much wider range of circumstances.

Section 12 of the DVCVA 2004 also gives any person mentioned in a restraining order the right to make representations in court if an application is made to vary or discharge that order.

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Principles

Following the implementation of section 12 of the DVCVA 2004, restraining orders may be made on conviction or acquittal for any criminal offence. These orders are intended to be preventative and protective. The guiding principle is that there must be a need for the order to protect a person or persons. A restraining order is therefore preventative, not punitive.

Restraining orders can only be made in respect of the defendant (not the victim or any witness), even if evidence in the course of a trial indicates that the behaviour of both the defendant and the victim requires addressing.

The test to be applied by the court before making an order is whether an order is necessary to protect the persons named in it from harassment or conduct that will put them in fear of violence. This necessitates an evaluation by the court of the evidence before it. It will require the court to determine whether there is sufficient evidence in front of it to enable it to form a view that an order is necessary. Restraining orders are civil behaviour orders and therefore the standard of proof is a civil one (R v Major [2010] EWCA Crim 3016).

The court retains its power to bind over the defendant, victim or witnesses of its own motion at any time before the conclusion of the criminal proceedings or on acquittal where it believes a person's behaviour is such that there might be a breach of the peace in the future. For further guidance see Binding Over Orders.

Restraining orders are distinct from anti-social behaviour orders (ASBOs) on conviction (section 1C of the Crime and Disorder Act 1998) in a number of ways. Restraining orders:

  • are used in domestic situations whereas ASBOs on conviction relate to persons not of the same household;
  • are to protect named persons whereas ASBOs on conviction are used to protect unnamed persons in any place in England and Wales; and
  • can be made on conviction and acquittal. ASBOs on conviction cannot be made on acquittal.

For further guidance see Anti-Social Behaviour Order on Conviction.

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Restraining orders post-conviction

Section 12 of the DVCVA 2004 amended section 5 of the PHA 1997 to allow the court to make a restraining order following a conviction for any criminal offence, where the conviction occurs after 30 September 2009. Paragraph 5 of Schedule 12 of the DVCVA 2004 provided that section 12 only applies where the conviction or acquittal occurs after the commencement date. It follows that a restraining order can be made when the date upon which the offence was committed was prior to 30 September 2009.

When sentencing for any offence the court can now, under the above provisions, make a restraining order for the purpose of protecting a person (the victim or victims of the offence or any other person mentioned in the order) from conduct which amounts to harassment or which will cause a fear of violence.

Restraining orders are therefore likely to be appropriate in cases where the defendant and the victim are known to each other (whatever the charge) and where there is a continuing risk to the victim of harassment or violence after the date of conviction.

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Restraining orders post-acquittal

Section 12 of the DVCVA 2004 introduced section 5A into the PHA 1997, which allows the court to make a restraining order after acquitting a defendant of any offence if the court considers it necessary to do so to protect a person from harassment from the defendant.

Unlike restraining orders on conviction, there is no power to protect a person from fear of violence that falls short of harassment where the defendant has been acquitted.

Harassment is not defined in the PHA 1997, except that it includes causing a person alarm or distress. For further guidance see Stalking and Harassment.

Section 5A was introduced to deal with those cases where there is clear evidence that the victim needs protection, but there is insufficient evidence to convict on the particular charges before the court. It is still open to the victim to seek a non-molestation order or injunction from a civil court. However, this more proactive approach on the part of the courts using section 5A is seen as not only avoiding delay and increased costs to the legal aid budget, but also providing a more seamless process of providing protection to victims.

Section 5A only applies where there has been an acquittal. It does not apply where proceedings have been withdrawn or discontinued.

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Meaning of acquittal

An "acquittal" under section 5A of the PHA 1997 means any occasion when proceedings are dismissed following the hearing of evidence at trial. This interpretation of the word would also include the situation when the prosecution offers no evidence with regard to the substantive charge: R (O) v Stratford Youth Court [2004] EWHC 1553 (Admin).

The effect of section 17 of the Criminal Justice Act 1967 is that where a prosecutor offers no evidence against a defendant who has pleaded not guilty to an indictable offence in the Crown Court, the court may order that a verdict of not guilty is recorded, and this has the same effect as if the defendant had been tried and acquitted.

On a summary trial, where a charge is dismissed following the prosecution's decision to offer no evidence, this would be regarded as an acquittal for the purposes of the doctrine of "autrefois acquit".

Applying this logic to section 5A (1), it is arguable that the reference to a court before which the defendant is acquitted of an offence should be read to include a court before which the prosecution offered no evidence and a charge was dismissed. Although the point has not been specifically argued before the appellate courts, a line of authorities has begun to emerge in which implicit approval has been given to the practice of imposing a restraining order following the offering of new evidence by the prosecution: R v Robert Smith [2010] EWHC 3593 (Admin);R v Major [2010] EWCA Crim 3016; R v K [2011] EWCA Crim 1843; R v Trott (Peter) [2011] EWCA Crim 2395.

See further guidance in the section Offering no evidence and making an application.

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Cases that may require a Restraining Order

The types of cases in which a restraining order may be appropriate include:

  • cases where the defendant and witness know each other or have been in a previous intimate relationship (such as domestic violence cases);
  • cases where the parties have ongoing contact (for example, where the victim runs a local business); or
  • cases where there is evidence that the victim has been targeted by the defendant in some way (for example, continued minor public order offences or criminal damage).

However, restraining orders are not limited to these types of cases. The overriding consideration should always be whether a restraining order is required to protect the victim or other person.

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Review and preparation

Prosecutors should have in mind at the time of charge or review whether a restraining order might be appropriate in the event of an acquittal or conviction. This will enable prosecutors to ensure that sufficient information is before the court for the court to exercise its powers.

In cases which require a Plea and Sentence Document (PSD), the PSD should set out, if appropriate, whether the court should be invited to make a restraining order either on conviction or acquittal. The PSD should set out the grounds for inviting the court to make such an order, and suggested prohibitions which the order should contain.

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Views of the victim

Police Officers should make representations regarding restraining orders using the forms MG5 and MG 6 when providing information about restraining orders to prosecutors. These should specifically confirm whether the views of the victim(s) or other named person in the order have been obtained. Where such information is not received with the case file, prosecutors should confirm promptly with the police that a restraining order is required by the victim.

In some cases a victim may not want a restraining order to be imposed on a defendant: for example, when the victim wishes to continue a relationship with the defendant (R v Brown [2012] EWCA Crim 1152 and R v Picken [2006] EWCA Crim 2194 ). In such instances the prosecution should not object to the victims' wishes but inform the court as ultimately it will be a matter for the court .

A victim should also be given the opportunity to make a Victim Personal Statement. For further guidance see Victim Personal Statements.

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Making an application

Whilst a court can make a restraining order of its own volition, prosecutors also have an obligation to remind sentencing courts of the option of making a restraining order, including when the defendant has been acquitted.

The procedural rules for making applications are set out in Part 50 of the Criminal Procedure Rules. These apply in both the magistrates' court and the Crown Court. 

It is important that sufficient notice is given to a defendant when an application for a restraining order is made. In R v K [2011] EWCA Crim 1843 the court ruled that a person to whom a restraining order is directed should be given a proper notice, an opportunity to consider what is proposed and to make representations at a hearing.

The need to give the defendant an opportunity to address the court whether a restraining order was necessary was again endorsed in R v Trott (Peter) [2011] EWCA Crim 2395. The Crown offered no evidence and a formal verdict of not guilty was entered by the court. The Crown then applied for a restraining order. The judge remarked that the defendant should never been charged or committed but nevertheless granted a restraining order so as to prevent further trouble. The defendant appealed on the grounds that the judge had erred in law in imposing a restraining order and alternatively erred in identifying the factual basis for it. The court cited R v Major [2010] EWCA Crim 3016 and R v K and ruled that the procedure followed by the court denied the defendant an opportunity to make any representations and accordingly quashed the restraining order.

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Evidence to support an application

The court may have regard to any evidence it may have heard during a criminal trial in determining whether a restraining order is required. However, further evidence may be required especially where the defendant has been acquitted (either after trial or following the offering of no evidence by the prosecution). See further guidance in the section Offering no evidence and making an application.

In assisting the court, both the prosecution and defence may lead, as further evidence, any evidence that would be admissible in proceedings for a civil injunction under section 3 of the Protection from Harassment Act 1997 (section 5(3A) PHA 1997). This will allow prosecutors to lead evidence over and above the facts before the court together with evidence that may not have been admissible in the criminal proceedings. Examples of such evidence include:

  • live evidence not given at trial;
  • previous convictions;
  • previous injunctions or non molestation orders;
  • hearsay evidence; and
  • material contained in crime reports, domestic violence incident reports or other intelligence reports.

Prosecutors should follow the rules of civil evidence in order to adduce further evidence to enable the court to determine whether to make a restraining order.

In all cases, prosecutors should be prepared to give the court relevant background information upon the court's request. This may include whether the defendant is subject to any civil injunctions or whether there are any pending applications for civil injunctions. This information should be provided by the Police on Forms MG5 and MG6. It will be important to check that the information provided is still up-to-date when the matter comes before the court, to ensure that the information given is still accurate.

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Offering no evidence and making an application

Prosecutors should always consider whether a restraining order is required at the outset and request the police to seek the victim's view.

Although a court can make a restraining order where the prosecution has offered no evidence, it is imperative that prosecutors bear in mind the procedure when applying for a restraining order. Since no evidence will have been heard in the sense that there will have been no trial, the prosecution will have to adduce evidence to support its request for the court to make a restraining order.

This is achieved through section 5A(2) and section 5(3A) of the PHA 1997. The effect is that any evidence which would be admissible in proceedings for an injunction under section 3 would be admissible by way of further evidence for the purposes of seeking a restraining order on acquittal. It is likely that a court would require further evidence to be satisfied that it was necessary to make the restraining order to protect the victim from harassment by the defendant, and the court would not be able to make this assessment without seeing any evidence at all.

Prosecutors should consider what evidence should be adduced/agreed before a Restraining Order is requested in such circumstances. Evidence generally means sworn testimony, exhibits and agreed facts. It would be sensible to establish before presenting the evidence what is and is not in dispute. The court is not concerned to establish a criminal offence beyond reasonable doubt, just that there is enough evidence on the balance of probabilities to impose an order which is required to protect a victim.

Once the facts are agreed, the prosecutor may offer no evidence provided the defence agree to a Restraining Order and then outline the agreed facts to a court. This view appears to be consistent with the reasoning in R v Robert Smith [2010] EWHC 3593 (Admin).

There may be circumstances where the defence initially agree to a Restraining Order, but change their mind AFTER the prosecution offers no evidence. In R v Major [2010] EWCA Crim 3016 the court explicitly stated that there was no requirement for the defendant to consent, so if a defendant withdraws consent after no evidence is offered the court can impose the order. However the court also stated that the judge should identify the factual basis for granting a restraining order which must be based on evidence, and the standard of proof for a post acquittal restraining order is a civil one. Where necessary, this may include adjourning a case to call witnesses.

Although offering no evidence and applying for a restraining order may be a sensible way of disposing of some cases, Prosecutors are reminded to be circumspect about this approach and ensure that it does not become the default position particularly in Domestic Violence cases.

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Draft orders

When advising the court of its powers to make a restraining order, it will be of assistance to the court if the prosecutor is able to provide it with a draft order setting out proposed prohibitions. A template for use when drafting a restraining order is available.

Draft orders must:

  • only impose prohibitions and not positive requirements;
  • cover the range of behaviour undertaken by the defendant;
  • relate clearly to the behaviour complained of;
  • be realistic, reasonable and proportionate;
  • be clear, concise and easy to understand by the defendant;
  • be specific when referring to exclusion from an area, to include for example street names and clear boundaries, including maps.

Do not use references to "fear of violence" in draft post-acquittal orders as there is no power to protect a person from fear of violence that falls short of harassment where the defendant has been acquitted.

Prosecutors should consult with the police and the victim/witnesses (via the police) as to the appropriate terms.

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Duration of an order

A restraining order made under section 5 or 5A of the PHA 1997 may have effect for a specified period or until further order (section 5(3) PHA 1997).

Unlike an ASBO, for which there is specific legislative provision for an interim order, there is no power for the court to make an interim restraining order. However prosecutors should bear in mind the provisions under the Bail Act 1976 and request for conditions as appropriate.

Under section 5(3) of the PHA1997, it is possible to make a time-restricted restraining order. However, the test for the making of such a restraining order is the same as for an order of a longer or indefinite period (for ASBO interim orders there is a separate lesser test).

If the defendant states that he is not in a position to deal with the consideration of the making of a restraining order and requests that the matter be adjourned, the court should be encouraged to still make an order if at all possible. Prosecutors should remind the court that it is always open to the defendant to subsequently apply for the order to be varied or discharged.

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Variation or discharge

Section 5(4) of the PHA 1997 permits the prosecutor, defendant or any other person mentioned in the section 5 or 5A order to apply to the original court for the order to be varied or discharged. Section 12(4) of the DVCVA 2004 inserted a new section 5(7) into the PHA 1997, which permits the court to vary or discharge the section 5 order when it deals with a person for the offence of breach of the order.

Any person mentioned in the order (including the defendant and persons protected by the order) is entitled to be heard on the hearing of a variation or discharge application (section 5(4A) of the PHA 1997).

A situation may  arise whereby the victim seeks to vary the restraining order under section 5(4A) of the PHA 1997. The 1997 Act does not expressly state that if the victim wishes to vary a restarining order, the CPS should not be involved nor does it clarify the situation when the victim approaches the police/CPSand seeks our assistance.  However,  our role is to assist the court/defence through giving facts of the original case and order and it would be wise to have the original file at court if possible.  If the victim approaches the CPS , we should endeavour to apply on behalf of the victim, so to maintain the confidence stakeholders have in the CPS and lessen the burden on the victim.This may create additional work for the CPS but  prosecutors  should look at  the broader picture and see this as evidence of our commitment to Violence Against Women and Girls (VAWG).  

A situation may also arise where the victim opposes the making of a restraining order, for example where she/he did not support the original prosecution. This situation requires very sensitive handling, especially in light of the fact that victims or other persons may not be legally represented in court. Prosecutors should take account of the victim's views (as outlined in the  Prosecutors' Pledge) and inform the court accordingly. The final decision to make a restraining order is one for the court, having heard representations from the defence and the prosecution.  

It may be helpful to ask the victim to give another Victim Personal Statement before an application for variation or discharge is heard, in order to gain a better understanding of what has happened since the restraining order was granted.

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Appeals

An order made on acquittal can be appealed against in the same way as an order made on conviction.

Appeals from orders made in the Crown Court should be referred to the Appeals Unit, Special Crime and Counter Terrorism Division.

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Quashed convictions

Where a conviction is quashed on appeal, the Court of Appeal may remit the case to the Crown Court to consider the making of a restraining order if it is satisfied that it is necessary to do so to protect any person from harassment (section 5A(3) PHA 1997).

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Consequences of breaching an order

If the defendant breaches an order under section 5 or 5A of the PHA 1997 without reasonable excuse, she/he will be guilty of a criminal offence (section 5(5) PHA 1997). The penalty that may be imposed upon breach of the new section 5A restraining order is identical to that which can be imposed under section 5.

On conviction on indictment, the defendant may be subject to imprisonment for a term not exceeding five years, or a fine, or both.

On summary conviction, the maximum penalty is imprisonment for a term not exceeding six months, or a fine not exceeding the statutory minimum, or both. For further guidance see Stalking and Harassment.

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Related information

Home Office Circular 17 of 2009 (Sections 12 and 13 of the Domestic Violence, Crime and Victims Act 2004) at

http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars/circulars-2009/017-2009/

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