Get the advice you need to protect yourself, your family, your home, your job. The maximum sentence is 5 years custody. 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. Even where they are permitted activities which leave grey areas, there is a clear framework to determine whether or not the activity is lawful. 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. I need to discuss the matter with someone urgently please. 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. why is my package stuck in germany February 16, 2022 Defense of Lack of Consideration. *Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. The term reasonable excuse appears in many areas of regulatory law. It is even more difficult to rely on ignorance of the law as a defence of reasonable excuse. Police investigationsand Court hearingscan have a dramatic impact on day to day living. if the application is opposed, the victim should be warned to attend. See Stage 4 onwards. This situation requires very sensitive handling, especially in light of the fact that victims or other persons may not be legally represented in court. She genuinely wishes to pursue her relationship. However, there is still a lot of ambiguity in the law, and the College of Police has published guidance for officers on what constitutes a reasonable excuse. Haziran 29, 2022 . Liability limited by a scheme approved under Professional Standards Legislation Registered Lawyer P0024385 | A.B.N. (1) It is an offence for a person who is subject to a restraining order without reasonable excuse to do anything prohibited by the restraining order. 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. In Christine Perrin v The Commissioners for Her Majestys Revenue and Customs (2018) UKUT 156 (TCC) the Upper Tribunal considered whether ignorance of the law could be an excuse: It is a much-cited aphorism that ignorance of the law is no excuse, and on occasion this has been given as a reason why the defence of reasonable excuse cannot be available in such circumstances. 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. 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 Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases. 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. The conditions must be drafted in clear and precise terms so that there is no doubt about the conditions. In those circumstances the restraining order should not have been imposed." Neither the prosecution or defence had called any evidence in support of or opposition to the making of the restraining order. the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and. Stage 2: The applicant's case If the respondent denies the contravention, the applicant's case is heard first. Help us to improve our website;let us know viii Largely relying on judicial discretion, the defence relies on the Courts to determine the effect of the provision. The Court of Appeal confirmed the procedure for imposing a Restraining Order following acquittal. It is still open to the victim to seek a non-molestation order or injunction from a civil court. 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. Maximum penalty for section 46 of the Sex Offenders Registration Act 2004 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. The sentencing council has published sentencing guidelines for the offence for use at criminal sentencing hearings. Your use of this website including the Automated Advisor and the New Client Form does not expressly or by implication create a lawyer-client relationship between you and Jano Family Law. Access to the family home and to children is often restricted and any conviction can affect employment as it would remain on the police national computer and may be disclosed on a DBS check. 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. They felt that there had only been no breaches as the order had been in place. 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. 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. If you have committed repeated restraining order breaches within 2 years, there is a possibility that you will be handed the maximum penalty. 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. what you think by taking our short survey, Reality TV star Stephen Bear has been sentenced to 21 months imprisonment today for voyeurism and two counts of, A Chelsea supporter has been banned from football for three years for a racially aggravated public order offence, The CPS has authorised the @metpoliceuk to charge Constance Marten and Mark Gordon with gross negligence manslau, Coming up in the next edition of our community newsletter: 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. 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. It is important that sufficient notice is given to a defendant when an application for a restraining order is made. The maximum penalty for Breach of Community Correction Order (s83AD of the Sentencing Act 1991) is 3 months imprisonment and/or a fine of up to 30 penalty units ($4,663.80). If there is compelling proof that you have been breaching your restraining order, it is most probable that you will be prosecuted in either the Magistrates Court or Crown Court depending on the type and severity of the breach. (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.). This includes without limitation any information provided by the Automated Advisor and any articles that are on this website or are linked to from this website. Required fields are marked *, Copyright Anthony Gold Solicitors LLP. See. This guidance assists our prosecutors when they are making decisions about cases. Meaning of reasonable excuse. If a person breaches the terms of a restraining order, they commit a . 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). 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. 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. Facing an accusation of coercive Cyberflashing has become a term that is being used more and more as the internet takes over nearly all of our communication. The Housing Act 2004 and the management regulations give absolutely no guidance about what sorts of matters will amount to a reasonable excuse, meaning that lawyers are guided by a mixture of previous decisions by judges and magistrates, common sense and guesswork. 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. Reasonable excuse means something different in almost every context, but it will be an excuse that is objectively reasonable. What exceptions are there to breaching a restraining order? Public Health Orders and restrictions. 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. Someone may impose a restraining order against you if they have first brought criminal proceedings as the result of a criminal offence you are found to have committed against them. GPS tracking devices installed on mobile phones, tablets, vehicles etc. to book a Zoom or telephone advice appointment today. It has been held to not be reasonable to carry a weapon as a general precaution.13 Applying these broad principles to leaving one's property, it could be strongly (and, some might suggest, rightly) argued that a person who left their home to prevent an imminent attack by a third party would have a reasonable excuse for . The term reasonable excuse depends on the circumstances of the individual case in question, and the purpose to which the defence of reasonable excuse is to be applied as an exception. Let me know about your issue and I will get back to you. The average cost of a FS&I data breach is among the highest of any industry in the UK at 4.48M On March 14th ANS Group are hosting our first live event 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). However, the court also stated that the judge should identify the factual basis for granting a restraining order which must be based on evidence. For further guidance on the definition of stalking see the Stalking and Harassment legal guidance. 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). Thank you for taking the time to comment, a member of the team will be in contact with you shortly via email. Attending an emergency medical appointment that transpires to be within a fixed exclusion zone of the protected persons home address. Orders should be framed in practical terms for example, by reference to specific street names and, if necessary, a map should be prepared. 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 does not apply where proceedings have been withdrawn or discontinued. GOV.UK is the place to find Whilst this may constitute a 'reasonable excuse', it remains an arrestable offence and the burden remains on the person in breach to raise the defence; Child Arrangements Orders will often provide for written communication via a contact book which follows the child, capable of constituting a breach of a restraining order; They also breach an order if they help someone else to avoid complying with it or prevent someone else complying with it. For further information regarding the consequences of breaching a restraining order, or for assistance from the specialist solicitors from DPP Lawcall our team today on 0333 200 5859 or get in touch via our handy contact form here. There are also other restraining order defences that may be used if you are accused of contravening the restrictions applied to you by the court. The overriding consideration should always be whether a restraining order is required to protect the victim, a victims family or friends or any other linked person. These should specifically confirm whether the views of the victim(s) or other named person in the order have been obtained. Therefore, very careful consideration must be taken in such cases and the views of the victim should be sought. An application to vary or discharge the order can be made by the victim, prosecutor, defendant or any other person mentioned in the order. Providing legal services in England and Wales, Select ExpertiseActions Against PoliceCriminal DefenceSexual OffencesRoad Traffic AccidentsDriving OffencesFamily LawMilitary LawSerious FraudBenefit FraudPersonal InjuryChild ContactDivorceOther.