How do you challenge a restraining order?
Posted on 5th October 2018
Section 5 of the Protection from Harassment Act 1997 enables the Court to impose restraining orders following a conviction for any criminal offence when it is considered necessary to protect a person from conduct which amounts to harassment or which will cause fear of violence.
Since 2004, the courts also have the power to impose restraining orders following an acquittal if the court considers it necessary to do so to protect a person from harassment. This includes cases where the prosecution offers no evidence against a defendant. Harassment is not specifically defined but it includes conduct that causes alarm or distress. For a defendant who has been acquitted, the court cannot impose a restraining order if the fear of violence perceived by a person falls short of harassment.
For orders following conviction and acquittal, the standard of proof is a civil one meaning that the court must be satisfied on the balance of probabilities that it is necessary to impose such an order. This is a lower test that the criminal standard of proof meaning that the need for an order is often more readily made out.
Why Do People Get a Restraining Order?
Restraining orders can have far-reaching consequences and impact people other than those the order is aimed at protecting. Courts often impose orders for an indefinite period thereby placing the onus on the defendant to apply to have it varied or removed. Given that the punishment for breaching a restraining order can be up to five years in custody, it is essential that defendants are aware of the process for varying or removing an order.
Section 5(4) of the PHA 1997 permits a prosecutor, defendant or any other person named in the restraining order to apply to the original court for the order to be varied or discharged.
If a defendant is seeking to vary or discharge a restraining order, a criminal defence solicitor can do this on their behalf. An application must be made in writing and sent to the relevant sentencing court and the CPS, in particular requesting the CPS to provide the original file under which the order was made at court.
The application should explain, by way of a section 9 witness statement from the defendant and other requisite witnesses, what material circumstances have changed since the restraining order was made and why the restraining order should be varied or revoked as a result. It is the role of the defence solicitor to satisfy the court that the order is no longer necessary in its current form, or in its totality.
Once an application is submitted, the CPS should contact the police to obtain an updated statement from the protected person(s) which will be served on the defence prior to the application hearing. If the protected person(s) opposes the application then a fully contested application hearing will follow making it important that the case for removing or amending the order is properly advocated by a defence solicitor at court.
Any person mentioned in the order, including the defendant or protected person(s), is entitled to give oral evidence at the hearing of a variation or discharge application. A defence solicitor will be able to advise whether or not a defendant should give evidence as well as carry out cross-examination of any opposing parties.
If you would like to speak with one of our specialist Criminal solicitors who would be able to help with this please contact the team on 0808 231 6369 or request a call-back.
You should not that Legal aid is not available for applying to discharge or vary a restraining order, however, we can offer fixed fees for such work.