Restraining Orders

• Introduction
• Principles
• Restraining orders post-acquittal
• Views of the victim
• How to make an application
• Draft orders
• Duration of an order
• Variation or discharge
• Appeals
• Quashed convictions
• Consequences of breaching an order

Introduction

This guidance sets out the law relating to restraining orders and the approach taken by the prosecution to them. At the outset of a case, when considering their case strategy, prosecutors should consider whether a restraining order is appropriate in the event of conviction or acquittal and apply for it as soon as practicable and without waiting for the moment of conviction or acquittal. The decisions and rationale should be recorded in a review of the case. 

Principles

Restraining orders may be made on conviction (section 360 Sentencing Act, SA 2020, and in general see sections 359 to 364) or acquittal (section 5A Protection from Harassment Act, PHA 1997 ) for any criminal offence. Where a defendant is unfit to plead but has been found to have done the act, that does not amount to a conviction and the court does not have the power to impose a restraining order: R v Chinegwundoh [2015] EWCA Crim 109.

Restraining orders are intended to be preventative and protective, not punitive.

The police should provide the victim’s views, a risk assessment, any further evidence in support of the need to protect the victim and suitable proposed conditions if the prosecutor is to ask the court to impose a restraining order.

Restraining orders can only be imposed upon a defendant (not the victim or any witness).

For a restraining order on conviction, section 360 SA 2020 provides that a court (in the course of dealing with an offender) may make a restraining order for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which:

• amounts to harassment, or
• will cause a fear of violence.

For a restraining order on acquittal, section 5A PHA 1997 provides that a court may make a restraining order if it considers it is necessary to protect a person from harassment by the defendant (but not 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 on acquittal are civil behaviour orders and therefore the standard of proof is a civil one (R v Major [2010] EWCA Crim 3016).

R v Khellaf [2016] EWCA Crim 1297, followed by R v Awan (Osman) [2019] EWCA Crim 1456, established four principles that the court must take into account when considering ordering a restraining order:

1. The court should consider the views of the person to be protected
2. No order should be made unless the judge concludes that it is necessary to protect the victim
3. The terms of the order should be proportionate to the harm which it is sought to protect
4. Particular care should be taken when children are involved to ensure that the order does not make it impossible for contact to take place between a parent and a child where such contact is otherwise appropriate.

In R v Debnath [2005] EWCA Crim 3472 the court held as follows:

The purpose of the order is to prohibit conduct with a view to protecting the victim from further offences.

1. The order must be drafted in clear and precise terms so there is no doubt as to what the defendant is prohibited from doing.
2. Orders should be framed in practical terms – for example, by reference to specific street names and, if necessary, a map should be prepared.
3. The court should have regard to considerations of proportionality.
4. The court has the power to vary or discharge the order if circumstances change.

Where human rights are engaged, for instance the right to private and family life, any order/condition proposed must consider whether interference with the right is necessary and proportionate: Dix [2021] EWCA Crim 1470.

Restraining orders post-acquittal

Section 5A PHA 1997 was introduced to deal with those cases where, notwithstanding there has been an acquittal or it is proposed to offender no evidence, there is clear evidence that the victim needs protection. It is still open to the victim to seek a non-molestation order or injunction from a civil court. However, use of section 5A PHA 1997 can avoid delay and cost to the victim and is an appropriate measure to be taken by the prosecutor where there is evidence to support the application.

Section 5A PHA 1997 only applies where there has been an acquittal. It does not apply where proceedings have been withdrawn or discontinued. Careful consideration must be taken in such cases and the views of the victim are particularly important.

An "acquittal" under section 5A PHA 1997 means any occasion when proceedings are dismissed following the hearing of evidence at trial. This interpretation of the word also includes the situation when the prosecution offers no evidence.

• The effect of section 17 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". See R (O) v Stratford Youth Court [2004] EWHC 1553 (Admin) .

A line of authorities confirms that a restraining order may be imposed following the offering of no evidence by the prosecution: R v Robert Smith [2010] EWHC 3593 (Admin) , see R v Major [2010] EWCA Crim 3016; R v K [2011]  EWCA Crim 1843; R v Trott (Peter) [2011] EWCA Crim 2395.

There may be circumstances where the defence initially agree to a restraining order on acquittal but change their mind after the prosecution offers no evidence. In Major the court 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. Where necessary, this may include adjourning a case to call witnesses.

Views of the victim

The cases of R v Khellaf [2016] EWCA Crim 1297 and R v Awan (Osman) [2019] EWCA Crim 1456 confirm that the victim’s views on applying for a restraining order, its terms and its duration must be obtained. Prosecutors should confirm promptly with the police whether a restraining order is sought by the victim if this information has not been provided.

In some cases, victims may not want a restraining order to be imposed on a defendant. The courts have been clear that the law does not presently permit the criminal court to act to protect victims of domestic abuse  against the consequences of decisions of this kind which they freely make: R v Herrington [2017] EWCA Crim 889, see also R v Brown [2012] EWCA Crim 1152. If a victim wants to be contacted by the defendant, the criminal law cannot over-ride their autonomy, provided they are exercising a free choice and have the capacity to make that choice.

Where the defence say the victim objects to the granting of restraining order and this is not supported by information provided by the police or where there is evidence that a victim may not be exercising free choice (for example, through fear for themselves or others) then this information should be presented to the court and the prosecution should ask for an adjournment to ascertain the correct position. The court should not be asked to make a restraining order against the free choice of the victim but if they are not exercising free choice the order can be sought, and the court should decide.

How to make an application

A court can make a restraining order of its own volition. However, prosecutors should make applications in appropriate cases, applying the principles in Khellaf and Debnath above.

The procedure for making an application in the magistrates’ court or Crown Court is set out in Part 31 of the Criminal Procedure Rules. A notice of intention to apply is not required. What is required is the service as soon as reasonably practicable of a draft order: Rule 31.3(6). A notice is required if evidence is to be relied upon which has not already been introduced: Rule 31.4(2).

In relation to the evidence in support of an order, the starting point is the evidence heard in the trial or which has already been served. Submissions can be made, if necessary, on the evidence which the court has heard or which has been served, and any further evidence if it is agreed between the prosecution and defence (for instance, previous incidents or convictions). If there is a dispute on the evidence which needs to be resolved, oral evidence may need to be called. If there is no dispute then agreed evidence (whether witness statements, exhibits or other agreed material such as previous incidents or convictions) can be put before the court. What is important is that if the court is being asked to make an order other than on the basis of the evidence in the trial, that that evidence is clearly identifiable: R v Baldwin [2021] EWCA Crim 703.

Prosecutors should address the statutory test when making the application for an order. The different tests for orders on conviction, and acquittal, are set out above. The defendant must be given the opportunity to make representations regarding the imposition of a restraining order: R v Trott (Peter) [2011] EWCA Crim 2395.

Draft orders

The police should provide prosecutors with an indication of the terms sought for an order and the duration.

Prosecutors should review these and ensure they are tailored to the defendant and victim/person to be protected in the case. The views of the victim/person to be protected should be sought to ensure the conditions are appropriate in the circumstances of the any relationship between the defendant and victim/protected person for example, where there will be child contact. The conditions must be drafted in clear and precise terms so that there is no doubt about the conditions.

If there are any proposed term changes, the defence must be notified immediately: R v Uddin & Others [2015] EWCA Crim 1918.

The draft orders must:

• only impose prohibitions and not positive requirements
• address the full range of behaviour for which protection is needed
• 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/or clear boundaries, including maps.

Duration of an order

A restraining order may have effect for a specified period or until further order (section 359 SA 2020) for orders in respect of convictions and section 5A(2) PHA 1997 for orders on acquittal. The test for making a restraining order is the same whether it is for a specified period or until further order.

There is no power for the court to make an interim restraining order. When proceedings are ongoing prosecutors should make representations regarding bail conditions as appropriate to manage any risks to the victim and/or witnesses. For further guidance prosecutors should refer to the Bail prosecution guidance.

Prosecutors should ensure that the victim/person who is the subject of the restraining order has provided their views regarding the duration of a restraining order and ensure that the duration sought is reasonable and proportionate.

Variation or discharge

The prosecutor, defendant or any other person mentioned in the order may apply to the original court for the restraining order to be varied or discharged: section 361(1) SA 2020 for orders in respect of convictions and section 5A(2B) PHA 1997 for orders on acquittal.

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 361(2) SA 2020 for orders in respect of convictions and section 5A(2C) PHA 1997 for orders on acquittal.

Where the victim or defendant seeks to vary the restraining order neither the SA 2020 nor the PHA 1997 expressly state whether the CPS should be involved, nor does the legislation clarify the situation when the victim approaches the police/CPS and seeks their assistance. However, the CPS’s role is to assist the court/defence through giving the facts of the original case, and the evidential basis on which the order was made.

If the defendant seeks to vary the order, which was made on behalf of the victim by the CPS, the CPS should consider responding to the application on behalf of the victim and obtaining the victim’s up to date views in relation to the imposition of the restraining order and its conditions, to ensure the victim remains protected. Prosecutors should carefully consider applications to vary or discharge orders from defendants, as some may be vexatious applications who use this process as tool to indirectly contact, control or stalk a victim. Where it is apparent that is happening or numerous applications have been made and there are concerns that the defendant is abusing the process, the prosecutor should bring this to the attention of the court.

If the victim approaches the CPS requesting a variation, the CPS should consider making an application on behalf of the victim.

Having had regard to an application to vary or discharge a restraining order, and where the prosecution agree it is appropriate to assist, prosecutors should:

• contact the police and ask them to obtain a statement from the victim, setting out the reasons for the application (or their views on the application if it is made by the defendant). The statement should be served on the defence and court if an application is pursued. The police should also provide an up-to-date risk assessment and address any material change in circumstances since the making of the order. Where this information is not available the prosecution should seek an adjournment to obtain it
• based on this information, if the victim, acting freely and autonomously, wishes the order to be varied and revoked, the court and defence should be written to, and that application made i.e. the CPS agree to the variation or revocation based on the victim’s decision
• if the CPS conclude that the victim is not acting freely or autonomously then the CPS should make that clear and decide whether to allow the victim or defendant to pursue an opposed application for variation or revocation, or to put the matter before the court for determination.

Appeals

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

Within the CPS, conduct of appeals against sentence and conviction are the responsibility of the Appeals and Review Unit, Special Crime and Counter Terrorism Division. Additional guidance can be found in the Appeals to the Court of Appeal prosecution guidance.

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.

Consequences of breaching an order

If the defendant breaches a restraining order without reasonable excuse, they are guilty of a criminal offence: section 363(1) SA 2020 for orders on conviction (unless the breach was committed before 1 December 2020) – see R v Jowett (Rici) [2022] EWCA Crim 629 – and section 5A(2D) PHA 1997 on acquittal. These offences are triable either way and the maximum penalty is 5 years’ imprisonment and/or an unlimited fine.

When dealing with a person for an offence of breaching a restraining order, the court may vary or discharge the order in question (section 363(6) SA 2020 and section 5A(2F) PHA 1997).

It is important that breaches of orders are carefully considered, as new offences may also have been committed in addition to the breach of the order. The conduct may disclose further harassment, or stalking, or other offences such as assault. Prosecutors must review allegations of breach of orders to assess whether a prosecution should follow for any new offence as well as the breach of the order. It is likely that both breach of the order and any further offence should be charged.

In R v Hamer (Kaleb) [2023] EWCA Crim 516 the court confirmed that a person can be properly charged and convicted of two offences even if both arose out the same conduct. This case concerned having a bladed article and breach of a Knife Crime Prevention Order, but its rationale applies equally to breach of a restraining order and further distinct offences. Not only is it permissible to charge both, the court held, but there is good reason why it is appropriate to mark both the commission of a new offence and that an order of the court had been disobeyed.

Applying section 6 of the Code for Crown Prosecutors, it is likely to be important to record the breach of an order and a new offence to reflect the seriousness and extend of the offending and ensure the court has adequate powers of sentence (the totality principle applies, but consecutive sentences may be appropriate).