What is a Restraining Order?
A Restraining Order is an Order imposed by the criminal courts at the conclusion of a case. The CPS can make an application for a Restraining Order even when a defendant has been acquitted; the Court simply has to be satisfied that the imposition of one is both necessary and proportionate.
The Courts has the power to make Restraining Orders for any length of time that it deems to be appropriate, with there being no minimum or maximum period prescribed by law, and the conditions contained therein are case specific. For example, they can forbid any contact with the subject or subjects of the order, whether directly or indirectly; prevent the defendant from attending at their home address or work; or outline the limited circumstances in which contact can be permitted.
As an order of the court, any breach of a Restraining Order is a criminal offence which can attract a custodial sentence. This is true even when both parties decide they want contact again.
What if we don’t want a Restraining Order?
The Courts should not, as a rule, impose a Restraining Order when it is not requested by the aggrieved party. Such requests, when made, are often given at the outset of proceedings, for example when the police are initially called or when the first statement of complaint is made. At this point emotions can be running high, anger and frustration can take over, and requests can be made without the practical implications being considered.
Cases can often take weeks or even months to make it to Court. By this time things have often settled and views on ceasing contact may have changed. It is not always possible, however, for the police or the CPS to contact all parties for their views on a Restraining Order, especially in cases where the defendant pleads guilty. The Courts may therefore have no choice but to determine an application which is based on views that were put forwards months ago.
Often defendants do not want a Restraining Order to be imposed against them. Such Orders may impact on their day to day life. Conditions preventing them from attending certain streets or areas may impact upon their work life or their ability to see friends or family. Non-contact conditions can impact on their ability to see their children or to attend school events. In some cases, the order can prevent them from maintaining what would be a mutual and consensual relationship with the aggrieved party. It is important in any case where a Restraining Order is sought that appropriate advice is received, if necessary, by both parties, so that the full implications can be considered and detailed representations can be made in Court.
Can I apply to have a Restraining Order lifted?
Whether an Order was made because updated views were not obtained before the conclusion of the case, or because it was properly requested at the time, the views of both parties can change. In these circumstances often, rather than spend time taking the matter back to Court, people just re-instate contact despite the Order being in place. Defendants sometimes believe that if contact is initiated by the other party, it does not amount to a breach. Some believe that the fact that the aggrieved party no longer wants the Restraining Order to be in place makes it invalid. Others simply decide to ignore the Order and assume that no one will find out.
Unfortunately, whilst the fact that both parties are happy to have contact can be mitigation, it does not provide a defence, and a breach is a criminal offence. If a person continuously breaches their order, they can end up in prison.
If the Order is no longer required an application can and should be made to the Court to have it removed. In order to be successful such applications must have the support of the aggrieved party. If the defendant has asked for the matter to be listed they should be present in Court and will be asked why the Order should be removed. The Court will only hear such an application if the views of the other party have been obtained by the police. Similarly, the aggrieved party can make an application to the Court and will, again, be asked to explain why they no longer require the protection of the Order. If either party is represented, their views can be put forwards via their solicitor who will offer them advice and support on every step of the process.
How can Olliers help me?
We regularly deal with the following:
- Applying to remove Restraining Orders that have previously been imposed, on behalf of aggrieved parties and defendants;
- Objecting to such Orders being made in the first place;\
- Ensuring that where an Order cannot be avoided, the conditions are appropriate and do not encroach on other areas of a defendants life;
- Representing those accused of breaching a Restraining Order
Our expertise in this area means we have a high success rate and can offer support and assistance to those facing Court proceedings.
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