Restraining Orders - Section 12 Domestic Violence, Crime and Victims Act 2004 (in force from 30 September 2009)

Guidance added 15th September 2009.

• Introduction
• Principles
• Guidance for restraining orders post-conviction
• Guidance for restraining orders post-acquittal
• Charging Guidance
• Evidence and procedure
• Interim Orders
• Variation or discharge
• Consequences of breach
• Link to Home Office Circular

Introduction

On 30 September 2009, section 12 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) comes into force. This provision amends section 5 of the Protection from Harassment Act 1997 (PHA 1997). This 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). The amendment to section 5 PHA 1997 enables the court to impose a restraining order in a much wider range of circumstances.

Section 12 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.

Principles

Following the implementation of section 12 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.

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 is at fault.

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 persons behaviour is such that there might be a breach of the peace in the future. Further guidance in respect to binding over orders can be found elsewhere in the legal guidance.

Restraining orders are distinct from anti-social behaviour orders (ASBOs) on conviction (section 1C Crime and Disorder Act 1998 [CDA 1998]) in a number of ways. In order to grant an order under section 1C CDA 1998, the court must consider that the offender has acted in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself.This of course restricts their availability in domestic situations. The court may also consider that an ASBO on conviction is necessary to protect (unnamed) persons in any place in England and Wales, whereas restraining orders can only be made to protect the victim or other named persons. Unlike restraining orders under section 5A PHA 1997 (as amended), orders under section 1C CDA 1998 cannot be made on acquittal.

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Guidance for restraining orders post-conviction

Section 12 of the DVCVA 2004 amends 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 (Schedule 12, paragraph 5 of the DVCVA 2004 provides 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 is prior to 30 September 2009.

From 30 September 2009, when sentencing for any offence the court will be able to make a restraining order for the purpose of protecting a person from conduct, which amounts to harassment or which will cause a fear of violence.

The purpose of the order is to protect the victim or victims of the offence or any other person mentioned in the order from conduct that amounts to harassment or from conduct that 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.

The test to be applied by the court is whether the 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.

The 2004 Act does not specify the standard of proof to be applied by the courts. Nor is there any reference within the legislation to the defendants previous or future behaviour. Rather, the court is told to have in mind the question of whether the victim or person to be named in the order requires protection from harassment or from fear of violence. Before making an order, the court will have to be satisfied that it is necessary to do so.

The purpose of a restraining order is preventative, not punitive - it is a measure designed to protect someone from harassment or fear of violence.

Guidance for restraining orders post-acquittal

Section 12 DVCVA 2004 also introduces a new section 5A into the PHA 1997, which will allow 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. The elements of the offence of harassment in section 2 PHA 1997 are:

• a course of conduct;
• which amounts to harassment of another;
• which the defendant knows, or ought to know, amounts to harassment of another.

Harassment is not defined in the PHA 1997, except that it includes causing a person alarm or distress. For further guidance see legal guidance on Protection from HarassmentAct 1997.

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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Charging Guidance

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.

Obviously some cases can be discounted immediately because of their nature or because there is no identified victim. 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 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.

ACPO are currently working to re-title Form MG13 from Application for Order(s) on Conviction to Application for Ancillary Orders. In the interim Police Officers should make representations regarding restraining orders using form MG13 when providing information about restraining orders to prosecutors.  This should specifically confirm whether the views of the victim or other person to be named in the order have been obtained. A victim should also be given the opportunity to make a Victim Personal Statement.

Evidence and procedure

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. In appropriate cases, it is also best practise for prosecutors to remind the court of its power to make a restraining order when the defendant has been acquitted.

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. 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.

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

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.

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.

The procedural rules for making applications are set out in Part 50 of the Criminal Procedure Rules 2005. These apply in both the magistrates court and Crown Court. These procedural rules are the same as those relied upon for applications for post-conviction ASBOs. More detail can be found in the Legal Guidance onAnti- Social Behaviour, under the heading 'application procedure'.

In all cases, prosecutors should be prepared to give the court relevant background information upon the courts 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 Form MG13. 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.

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.

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).

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Interim Orders

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.

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).

During its passage through Parliament, there were a number of attempts to amend the DVCVA 2004 to make the provisions of section 5A temporary in nature. These were all unsuccessful. It is therefore unlikely that the court will read in a power to make interim orders.

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.

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 inserts 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) PHA 1997).

A situation may arise where the victim opposes the making of a restraining order, for example where s/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. Whilst prosecutors should always take account of the victims views (as outlined in the Prosecutors Pledge), on occasions it may be appropriate to still invite the court to make a restraining order notwithstanding the victims views. The final decision 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.

Appeal

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

Consequences of breach

If the defendant breaches an order under section 5 or 5A of the PHA 1997 without reasonable excuse, s/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 information, see the legal guidance on harassment.

Relevant link

Home Office Circular:http://www.homeoffice.gov.uk/about-us/publications/home-offi ce-circulars/circulars-2009/

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