Variation of a Restraining Order or discharge of a Restraining Order
Criminal Courts have a discretion to make restraining orders under the terms of the Protection from Harassment Act 1997. This can occur when a defendant is convicted of any criminal offence (under s5). Many people are shocked to discover that the Court can also impose a restraining order on a defendant even if they are acquitted (under s5A). This is a remarkable restraint on the liberty of a person who has been found to be Not Guilty of a criminal offence.
This discretion has been widely used and the imposition of restraining orders is on the rise; the numbers are truly astonishing. Home Office statistics show that over 25,000 restraining orders are imposed every year and this number appears to be increasing by on average 2,000 orders every year.
What is concerning is the fact that the Courts appear to issue restraining orders almost as a matter of course. Even if the defendant is acquitted or if the Court decides that the crime was so trivial as to warrant a fine or a discharge. Such orders can be in place for many years and in some circumstances can be imposed for an indefinite period. It is no wonder that I have seen a tangible increase in enquiries from clients about the variation of discharge of such orders.
What is a restraining order?
A restraining order is made under section 5 or 5A of the Protection from Harassment Act 1997. The order can be imposed for a specific period of time or indefinitely.
The purpose of a restraining order must be to protect an individual from conduct which amounts to harassment or from the fear of violence. The Court has very wide powers within the terms of the act and there is almost no limit to the constraints which can be put on people. Common clauses within an order include:
- Not to contact a person directly, indirectly or both
- Not to undertake a specific activity
- Not to enter a geographic location
What is the penalty for breaching a restraining order?
Section 5(5) of the 1997 Act makes it a criminal offence to breach a restraining order. Under s5(6) of the Act if convicted of breach a person can receive a sentence of up to 5 years imprisonment. It therefore goes without saying that having a restraining order and keeping to its terms is a serious matter.
Why vary or discharge a restraining order?
Many defendants are rightly concerned about having restraining orders hanging over them. For acquitted defendants this can be a matter of principle. If they have done nothing wrong, they feel aggrieved at having a Court Order hanging over them.
There is the matter of the potential consequences. A breach of a restraining order is a criminal offence for which the majority of offenders receive a prison sentence. People are concerned about this and the consequences of an inadvertent breach.
I also have an increasing number of clients coming to me in circumstances where the restraining order is being used against them by a malicious other party. This frequently happens in cases that have started in the break-up of a relationship- one party may use the existence of a restraining order to coerce the other party to their wishes in child custody or matrimonial proceedings. I have also had cases where this has been used in respect of neighbour disputes.
There is also the fact that the terms of some restraining orders are simply unworkable. These orders are often made very quickly at the conclusion of the case and some lawyers pay scant regard to how the order will work in practice. This is often not felt by the restrained party until sometime after the order has been imposed and the full impracticality is realised. An example of this came with a client who came to me having had a restraint order imposed which forbade direct or indirect contact with his ex-partner save through solicitors. The order made it practically impossible for him to effectively arrange childcare arrangements. The result was that his ability to see his children was severely compromised and I was able to quickly and effectively vary the order on his behalf thus allowing him to continue his relationship with his children.
How To Discharge A Restraining Order and how to vary a restraining order
A restraining order can either be dealt with on appeal to the Court of Appeal or on re-application to the Crown Court that made the order. In reality most applicants do not realise that the order is problematic until well past the 21-day limit for appeals to the Court of Appeal therefore the majority of applications tend to be back to the Court that made the order. The power to discharge a restraint order in this way is contained within s5(4) of the 1997 Act. The Act states that:
The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
Therefore, an application may be made by any ‘party’ to the order and may be made at any time. There are also no limits to the number of occasions in which such an application may be made. The test for application under s5(4) was considered by the Court of Appeal and outlined as follows:
‘The only question on an application or further application, under section 5(4) of the Protection from Harassment Act 1997, to discharge [or vary] a restraining order made under that section, was whether something had changed so that the continuance of the order was neither necessary nor appropriate.’
The test is therefore somewhat strict but in looking at whether the terms of the order are necessary or appropriate the Court are entitled to look at the practicality of the order (see R v Awan). The Court of Appeal in the case of R v Khellaf stated that there were 4 principles that should be taken into account when making such an order, these would be considered in any discharge application-
1. The views of the person to be protected, the prosecution should make sure that these are available to the court
2. No order should be made unless it is necessary to protect the victim
3. The terms of the orders should be proportionate to the harm it is designed to prevent
4. Care should be taken when children are involved to make sure that parental contact is not hampered
Evidence can be called to support the application and the stronger the evidence, the more likely the application is to be granted. If the person who is sought to be protected supports the application, it helps a great deal. This was the case in the appellate case of R v Herrington which was concerned with whether a restraint order should be made but is persuasive support for an application to vary or discharge.
The variation or discharge of a restringing order is a complicated area of law which can be very fact specific. A specialist lawyer in this area will be able to tell a client what their chances of winning are and crucially how their application can be presented so as to give it the best chance of success.
If you find yourself in need of legal assistance in respect of the variation or discharge of a restraining order is it is wise to seek expert legal assistance. Quentin Hunt is a Criminal Barrister who accepts instructions from both solicitors and members of the public directly; he has over 20 years’ experience dealing with restraining orders and is used to representing high profile and professional individuals. If you find yourself wanting to vary or discharge such an order you may contact Quentin for a free no obligation conversation about your case.