Guide to Restraining Orders

Restraining orders exist to protect the victim of an offence, or indeed any other person, from conduct that amounts to harassment or will cause fear of violence. They are only available in conjunction with criminal proceedings, which is to say that the subject of the restraining order must also be the subject of a criminal trial. If there is no trial, the appropriate course of action is an injunction.

WHAT IS A RESTRAINING ORDER?

A restraining order is a court order prohibiting a person from doing certain things, such as either:

• Contacting a named individual or
• Attending their home address or workplace

The restriction can include:

• Direct contact (i.e. in person)
• Indirect contact (such as WhatsApp messaging)

A court has the power to make a restraining order on conviction or, since 1997, on acquittal for a criminal offence. Post-acquittal restraining orders are used when there is insufficient evidence to convict the accused of a criminal offence, but there is clear evidence that the victim needs protection.

 A restraining order is not intended as a punishment, but is instead designed to be a preventative and protective measure. The Crown Prosecution Service (CPS) can ask the court to make a restraining order or the court can make the order of its own volition if it thinks the order is justified.

HOW DO I GET A RESTRAINING ORDER?

A criminal court has the power to make a restraining order against a defendant in a trial. The authority to do so comes from the Protection from Harassment Act 1997.

A Restraining Order under the 1977 Act is different to a civil or family law injunction order, such as a harassment injunction, non-molestation injunction, or occupation order. With a civil or family law injunction, the onus is on the applicant to make the injunction application, whilst a restraining order is made as part of criminal proceedings. A court can impose a restraining order of its own will, however, further evidence may be required from the prosecution - particularly if the restraining order is made post-acquittal.

BREACHING A RESTRAINING ORDER

If a person subject to a restraining order breaches it without a reasonable excuse, they will be guilty of a criminal offence. If tried in the Magistrates’ Court then the maximum penalty is six months’ imprisonment and if it is tried in the Crown Court before a jury, the maximum sentence is five years imprisonment. In either case, a fine can be imposed in addition to a custodial sentence, or as an alternative.

HOW LONG DOES A RESTRAINING ORDER LAST FOR?

A restraining order can be time-limited or indefinite. This means it will last until further order of the court. The person who is made subject to the restraining order can apply to the court for the order to be varied or discharged. Likewise, the person protected by the order can apply to vary or extend the order, if the circumstances justify doing so.

The criminal court does not have the statutory power to make a temporary restraining order whilst a criminal case is ongoing. However, in appropriate cases, the court can impose bail terms, such as a condition not to contact a complainant or witness. In addition, the person being harassed can consider the advisability of taking out a harassment injunction for protection.

ALTERNATIVES TO RESTRAINING ORDERS

If a victim does not want to report harassment to the police or cannot get the police to take action and charge the perpetrator with a criminal offence, or the court does not make a restraining order, there are several alternatives to a restraining order, such as:

• Harassment warnings – warnings can be given by the police where the decision has been taken not to prosecute someone for a criminal offence. The warning is referred to as an informal harassment warning notice or Police Information Notice (PIN). The warning is not a caution and the person warned does not have to admit that their behaviour amounted to harassment. If there are further incidents of harassing behaviour reported to the police, then the CPS may be more inclined to prosecute if the person causing the harassment previously received a harassment warning notice or PIN and ignored it
• Harassment injunctions – if the victim of harassment was not in a personal relationship with the perpetrator of the harassment (and therefore cannot use family law remedies) the victim could apply to the civil court for a harassment injunction under the Protection from Harassment Act 1997. The application can be made for an injunction order against any individual who has stalked or harassed a person or put them in fear of violence by deliberately causing distress on two or more occasions
• Non-molestation injunctions – if a victim is or was in a personal relationship with a person who is harassing them, then they may have the grounds to apply for a non-molestation injunction order from the family court
• Occupation orders – these orders can also be referred to as ouster injunctions and can either authorise the exclusion of a former partner or family member from the family home or prevent them returning to the property. Occupation orders do not change the legal ownership of the family home and are normally used to provide a short-term solution to occupation of a family home until decisions are made over property ownership and sale

In addition to injunctive relief, consideration can be given to starting proceedings for defamation of character or an action for libel or slander if the person conducting the campaign of stalking or harassment has also made defamatory remarks and false accusations.