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.
A restraining order is a court order prohibiting a person from doing certain things, such as either:
The restriction can include:
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.
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.
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.
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.
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:
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.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.