A rather gung-ho approach to the imposition of restraining orders has drawn the criticism of the Court of Appeal. Some powers – such as Domestic Abuse Prevention Notices – are designed to override the autonomy of parties. Restraining orders, it seems, are not. Mark Shanks explores the recent authority.
The imposition of a restraining order is now commonplace in the criminal Courts in England and Wales, particularly (and unsurprisingly) in those cases which involve domestic abuse. Even when the Defendant has been acquitted of the original offence (say, an assault for example), the Court still has the power to impose a restraining order when they find that it is necessary and only once evidence has been heard.
Wanted and Unwanted Orders
Where restraining orders are being imposed upon conviction, there are often clear-cut cases which will involve little dispute or discussion.
Firstly, there are the instances where the Complainant has made it clear that s/he wishes for a restraining order to be imposed. Even with robust arguments from the defence, there is a good chance that the Court will feel it necessary to impose a restraining order.
Secondly, there are those cases where the Complainant has specifically asked that there be no restraining order, as s/he wishes to continue to have contact with the Defendant.
Recent case law in the form of R v Herrington (2017) EWCA Crim 889 made it clear that the Court should not impose a restraining order if the adult Complainant does not want one, despite the facts of the case (see paragraph 7, in particular).
The difficulty arises when the Complainant has given no indication one way or the other. Clearly in Herrington, the Complainant did not want a restraining order put in place, and it is almost certain that the Officer in the Case (O.I.C.) will have asked the Complainant if she wished for one to put in place.
However, in the confusion that often occurs during the investigation of these cases, this question can be overlooked, or the answer is not transferred properly. Often the Complainant removes themselves from contact with the justice system and it is difficult to get a response.
The CPS position currently is that if a restraining order is not specifically requested then they will not ask for one.
However, it may be the case that the Court has serious concerns about the nature of offending, and ordinarily a restraining order would be imposed.
In these circumstances, even without the Crown requesting a restraining order, the Court can follow Section 5 of the Protection from Harassment Act 1997. Of course there will need to be strong grounds to support this course of action and to depart from R v Herrington, and with robust opposition the Court may well still take the view that a restraining order should not be imposed.
This does show that the courts have the ability to be flexible when concerned with what are often testing, varied and emotional cases – particularly as these cases often have the potential to evolve into much more serious offending.
The public can be reassured that the courts have the powers to use their own judgement to protect those involved in all circumstances.
Central Chambers has a criminal team with experience in all types of criminal proceedings including defending and prosecuting all levels of domestic abuse matters.