Restraining Orders

• Introduction
• Principles
• Restraining orders post-conviction
• Restraining orders post-acquittal
• Meaning of acquittal
• Cases that may require a Restraining Order
• Review and preparation
• 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 governing applications for restraining orders and outlines the procedure that prosecutors should follow. It is important that prosecutors are familiar with the legal framework surrounding restraining orders and understand when to make applications both on conviction and acquittal. All prosecutors should consider at the time of charge and when reviewing a case, whether a restraining order is appropriate in the event of conviction or acquittal. 

Sections 359-364 (in Part 11, Chapter 3) of the Sentencing Act 2020 (SA 2020) contain the current provisions relating to restraining orders on conviction for convictions on or after 1 December 2020. For convictions before 1 December 2020, the relevant provision is section 5 of the Protection from Harassment Act 1997 (PHA 1997). Restraining orders are available on conviction for any offence. Restraining orders are also available on acquittal under section 5A of the PHA 1997.

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. The police should provide relevant information required for prosecutors to decide whether to invite the court to make a restraining order. 

Prosecutors must ensure that information is obtained at an early stage from the police to determine if the court should be invited to make a restraining order, this should include the victim’s views and that the suitability of the proposed conditions has been discussed with the victim.

Principles

Restraining orders may be made on conviction (section 360 SA 2020) or acquittal (section 5A PHA 1997) 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). 

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.

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).

The case of R v Khellaf [2016] EWCA Crim 1297, provided the following 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. 

R v Awan (Osman) [2019] EWCA Crim 1456 reiterated the principles above. 

Restraining orders post-conviction

When making an application for a restraining order where the conviction occurred on or after 1 December 2020 prosecutors must apply under section 360 SA 2020.

When sentencing for any offence the court can, under section 360 SA 2020, 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 on conviction 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.

For cases in which the conviction occurred prior to 1 December 2020, the application must be made under section 5 PHA 1997. This applies even if sentence is on or after 1 December 2020.

Prosecutors should note that where a defendant has been deemed unfit to plead, a finding of fact hearing has taken place and there has been a finding that the person did the act alleged, this is not a conviction as it does not require proof of the requisite mental element of the offence. It also cannot be regarded as an acquittal, and therefore the court does not have the power to impose a restraining order (R v Chinegwundoh [2015] EWCA Crim 109). 

Restraining orders post-acquittal

Section 5A PHA 1997 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. Prosecutors should note that the SA 2020 does not contain any power for the court to make a restraining order on acquittal, so prosecutors should continue to rely on section 5A PHA 1997.

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

Section 5A PHA 1997 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 charges before the court. 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 provides a more seamless process for providing protecting victims.

Section 5A PHA 1997 only applies where there has been an acquittal (see below for further details). It does not apply where proceedings have been withdrawn or discontinued. Therefore, very careful consideration must be taken in such cases and the views of the victim should be sought. 

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 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. Where necessary, this may include adjourning a case to call witnesses.

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 also includes the situation when the prosecution offers no evidence. 

• 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". See R (O) v Stratford Youth Court [2004] EWHC 1553 (Admin).

Applying this logic to section 5A(1) PHA 1997, 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 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.

In R v Dennis [2014] EWCA Crim 2331 permission to appeal against a restraining order following acquittal was refused where the prosecution had offered no evidence on the basis that the defendant consented to the order and the judge had been satisfied that it was necessary. It was held that there should be a waiver of privilege in such applications to enable an investigation into why the court should set aside a restraining order where consent had been given. The Court of Appeal confirmed the procedure for imposing a Restraining Order following acquittal.

As noted above, where a defendant has been deemed unfit to plead, a finding of fact hearing has taken place and there has been a determination that the defendant did the relevant act, this is not considered a conviction but equally it is not considered an acquittal, so there is no power to impose a restraining order (R v Chinegwundoh [2015] EWCA Crim 109). 

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 abuse 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, because of stalking or 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, a victim’s family or friends or any other linked person.

Whilst a restraining order may not be appropriate in all cases, prosecutors are advised to consider whether an application would be suitable, on a case-by-case basis, and to ensure that a victim is kept safe. Restraining orders may be difficult to obtain and/or enforce if the victim and defendant are in a continuing relationship and/or the victim would like to continue contact with the defendant. Therefore, prosecutors should carefully consider the views of the victim when deciding whether it is appropriate to apply for a restraining order in the circumstances of the case.

In the case of R v Herrington [2017] EWCA Crim 889 the court made a restraining order against the wishes of the victim. The victim was in a relationship with the defendant and she wanted to continue living with him On appeal it was found that the court had been wrong to impose the restraining order despite the risks of domestic abuse that the victim faced. 

Review and preparation

Prosecutors should consider at the time of charge or review whether a restraining order might be appropriate in the event of an acquittal or conviction. Prosecutors should ensure that the police have provided the victim’s views about the need for a restraining order (and the views of any other person who requires protection such as the victim’s family, friends or other witnesses) as well as confirming they have discussed the suitability of any suggested conditions with that person.

This information should be available for the first court hearing even when a not guilty plea is anticipated. This ensures that courts are able to deal appropriately with cases where defendants change their plea and will enable prosecutors to ensure that sufficient information is before the court for the court to exercise its powers.

Views of the victim

The police should make representations regarding restraining orders using the forms MG5 and MG6 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 whether a restraining order is required by the victim.

The cases of R v Khellaf [2016] EWCA Crim 1297 and R v Awan(Osman) [2019] EWCA Crim 1456 confirm that the victims views on applying for a restraining order, its terms and its duration must be obtained. 

In some cases victims may not want a restraining order to be imposed on a defendant. The courts have been very clear that the law does not permit a criminal court to prevent individuals from living together even where there is a clear history of domestic abuse, as per the case of R v Herrington [2017] EWCA Crim 889 noted above.

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 have been subjected to extreme undue influence (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. Ultimately, it will be a matter for the court.

Although a victim’s views must be sought when considering making an application for a restraining order, their consent to make an application is not specifically required. 

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

How to make an application

Whilst a court can make a restraining order of its own volition, prosecutors also have an obligation to make representations regarding the availability of a restraining order upon conviction or acquittal and to make applications where it is deemed suitable.

Prosecutors are reminded that they should consider the principles set out in R v Debnath [2005] EWCA Crim 3472:

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

Prosecutors should also consider the principles set out in R v Khellaf [2016] EWCA Crim 1297: 

1. The court should take the victim’s view into account (although it is not impossible to have an order made against the wishes of the victim).
2. An order should not be made unless the judge concludes that it is necessary in order to protect the victim.
3. The terms of the order should be proportionate to the harm it is sought to prevent.
4. Particular care should be taken when children were involved to ensure that the order did not make it impossible for contact to take place between a parent and child if that was otherwise inappropriate. 

The procedure for making an application is set out in Part 31 (CrimPR 31.3) Behaviour Orders of the Criminal Procedure Rules. This applies in both the magistrates' court and the Crown Court.

Prosecutors should serve a draft restraining order on the court, defendant and any person on whom the order would be likely to have a significant adverse effect, as soon as practicable, (without waiting for a verdict). The content for a draft order is considered below. 

CrimPR 31.3(3) confirms that the notice must set out the relevant facts, identify the evidence, which is relied upon, provide any written statements used as support which have not previously been served in the proceedings and make clear the order that the prosecution would like the court to make. 

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 information required and timeframes are set out in 31.2 and 31.3 CrimPR.

Prosecutors should establish from the defendant if they will be objecting to the application for a restraining order and consider what evidence should be adduced/agreed before a restraining order is requested. Evidence generally means sworn testimony, exhibits and agreed facts. Prosecutors should establish before presenting the evidence what is and is not in dispute. The court is not establishing a criminal offence beyond reasonable doubt, the test is whether there is enough evidence on the balance of probabilities to impose an order which is required to protect a victim.

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).

Where the court has not heard any evidence, for example, because the prosecution offered no evidence before the start of the trial, the prosecution will have to adduce evidence to support its request for the court to make a restraining order. 

In R v Baldwin [2021] EWCA Crim 703 the victim did not attend trial and adjournment was refused and the prosecution offered no evidence. The defendant was acquitted. The Judge raised the issue of imposing a restraining order. Neither the prosecution or defence had called any evidence in support of or opposition to the making of the restraining order. Submissions were made in support of the restraining order by the prosecution and against the imposition by the defence. The judge made the order. This was appealed by the defendant and the Court of Appeal said the judge was right to consider making a restraining order on the facts of the case. However, the judge was wrong to impose an order because there was no clear identification of the evidence relied to necessitate the making of the order. 

In giving guidance the court said if a court is considering making a restraining order of its own volition in a case where there has been no trial and no evidence has been offered, it will be necessary for the court to consider carefully what evidence is relevant to the issue of the making of the restraining order, and consider which parts of that evidence are agreed or disputed. This needs to be identified fairly to ensure that the defendant may respond to the proposed order. Witness statements are admissible in support of an order, but as this will be final order for a restraining order (whether for a limited period of time or without limit of time), then the court is likely to need to hear oral evidence to resolve any relevant dispute of facts.

The admissibility of additional evidence in an application for a restraining order is permitted under section 362(2) SA 2020 for an application on conviction (or section 5(3A) PHA 1997 for convictions prior to 1 December 2020) and section 5A(2) PHA 1997 for an application on acquittal. The effect of these sections is that any evidence which would be admissible in proceedings for an injunction under section 3 PHA 1997 would be admissible by way of further evidence for the purposes of seeking a restraining order. 

These sections will allow prosecutors to adduce evidence over and above the facts already 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 abuse incident reports or other intelligence reports.

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. It will be important to check that the information provided is up to date when the matter comes before the court, to ensure that the information given is still accurate.

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

Prosecutors should indicate to the court why the criteria are fulfilled for making an application for a restraining order and why it is necessary. 

The defendant must be given the opportunity to make representations regarding the imposition of a restraining order. This was 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 have 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 [2011] EWCA Crim 1843 and ruled that the procedure followed by the court denied the defendant an opportunity to make any representations and accordingly quashed the restraining order.

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 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; 
• 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/or 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.

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 on or after 1 December 2020, section 5(3) PHA 1997 for orders in respect of convictions before that date, and section 5A(2) 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 legal guidance. 

Prosecutors should again 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 any length applied for is reasonable and proportionate. 

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

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 on or after 1 December 2020, section 5(4) PHA 1997 for orders in respect of convictions before that date, and section 5A(2B) 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 on or after 1 December 2020, section 5(4A) PHA 1997 for orders in respect of convictions before that date, and section 5A(2C) for orders on acquittal).

Where the victim seeks to vary the restraining 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 our assistance. However, the CPS’s role is to assist the court/defence through giving facts of the original case and order. Prosecutors are advised to have the original file at court if possible. If the victim approaches the CPS requesting a variation, we should consider applying on behalf of the victim. Depending on the circumstances of the case, this will 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). 

Having had regard to a victim's wish to vary a restraining order, and where the prosecution agree it is appropriate to assist, prosecutors should:

• write to the defence and court and put them on notice of the application. The application should explain what material circumstances have changed since the restraining order was made and why the restraining order should be varied or revoked as a result. Note if the applicant has applied to the court directly, this requirement is superseded;
• ensure the original file is retrieved;
• contact the police and request the original OIC to obtain a statement from the victim, setting out the reasons for the application and in order to gain a better understanding of what has happened since the restraining order was granted and an up to date risk assessment;
• ensure the new statement from the victim is served on the defence;
• the defendant should be given the opportunity to make representations at the hearing; and,
• if the application is opposed, the victim should be warned to attend. Prosecutors should check whether special measures are required so an application can be made in advance and can be listed in an appropriate court.

A situation may also arise where the victim opposes the making of a restraining order, for example where they 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.

In R v Brown [2012] EWCA Crim 1152 the victim opposed the making of a restraining order and in quashing the order, the court said: "This young woman wishes to continue in a relationship with a man who has been repeatedly violent to her. That is a decision that she is entitled to make, however dispiriting it may be. There is no suggestion that she lacks capacity, or that she has been forced to do this, or that she is in fear of the applicant. She genuinely wishes to pursue her relationship. In those circumstances the restraining order should not have been imposed." The final decision to make a restraining order is one for the court, having heard representations from the defence and the prosecution.

This view was further clarified in the case of R v Herrington [2017] EWCA Crim 889 (see above). 

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.

In Dix [2021] EWCA Crim 1470 leave was sought to appeal against the variation of a restraining order; the provision restrained the applicant from going to the Isle of Wight, where the applicant had hoped to go and live with his parents.

The Court agreed with the Recorder “that the interference with the applicant’s private and family life, and that of his parents, which results from his exclusion from the island is proportionate to the need to protect the victim”.

In Jackson [2021] EWCA Crim 901 the appellant had been issued with a 10-year restraining order after a conviction of harassment against the victim. The 10 years had almost expired, and the victim applied to the court for the duration to be extended. There had been no breaches of the order, but the victim was anxious about losing her protection. They felt that there had only been no breaches as the order had been in place. The appellant submitted, first, that the application should never have been entertained, as there had been no change of circumstances since the time the order was first imposed; and secondly that even if the Crown Court had been entitled to hear the victim’s application, it ought to have dismissed it on its merits as extending it was neither necessary nor proportionate. As it was not the Crown’s application to extend, the CPS took a neutral position on the second submission but instructed counsel to attend the Court of Appeal and make submissions to assist the Court on the first, novel, point of law. The Court found there was no rule of law requiring a victim to demonstrate a change of circumstances (at least on a first application) in such situations, and that the Crown Court had been right to consider the application on its merits. Turning to the second argument, the court agreed that on the merits, extending the order for a further 10 years had been wrong, and quashed the extension.

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 legal 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 will be guilty of a criminal offence.

For restraining orders imposed on conviction, the relevant offences are found in section 363(1) SA 2020 for orders made under section 361 SA 2020 and section 5(5) PHA 1997 for orders made under section 5(1) PHA 1997. 

In R v Jowett (Rici) [2022] EWCA Crim 629, the Court clarified the appropriate legislation to be used for breach of a restraining order imposed on conviction: where the breach of the restraining order took place before 1 December 2020. The breach should be charged as an offence contrary to section 5(5) PHA 1997 because the SA 2020 was not in force at that time. However, where the breach of the restraining order took place on or after 1 December 2020, that breach should be charged as an offence contrary to section 363(1) SA Act 2020 because section 5(5) 1997 Act had been repealed by then. 

The Court in Jowett also confirmed that where in error a defendant has been prosecuted under section 5(5) PHA 1997 when they should have been prosecuted under section 363(1) SA 2020, this does not render the conviction unsafe. The effect of paragraph 4 of Schedule 27 SA 2020 is that the statement of offence in the indictment on which such a defendant was convicted should be read as including a reference to section 363(1) SA 2020. 

When dealing with a breach of restraining order imposed on acquittal where the breach occurred before 1 December 2020 the relevant offence is contained in section 5(5) PHA 1997. However, for breaches committed on or after 1 December 2020 the offence is contrary to section 5A(2D) PHA 1997.

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. 

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, section 5(7) PHA 1997 and section 5A(2F) PHA 1997).

If there are multiple breaches or other offences prosecutors should consider if the behaviour constitutes a new course of conduct. This may necessitate that further charges are laid in addition to the breach. Care should be taken to ensure that the same behaviour is not included as a breach of an order as well as evidence of a new course of conduct. For further guidance see the Stalking and Harassment legal guidance.