Tag Archives: restraining order

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Harassment – the law, defences and sentencing

There are two distinct criminal offences of harassment.  One is of harassment putting people in fear of violence and one without.

Stalking is a similar but separate offence and is not covered in this article.

You can, however, read more about the offence of stalking here.

What does an allegation of harassment involve?

There has to be a course of conduct.  This can, however, involving as few as two incidents directed towards another person or persons.

The dictionary definition of harassment is to “torment by subjecting to constant interference or intimidation”.

The law, though, does not provide a comprehensive definition.  As a result there are many actions that could be foreseen to alarm or cause a person distress that would not constitute harassment.

Alternatively, the cumulative effect of a number if incidents that on their own might not be unlawful could con

The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.

What do the prosecution have to prove for harassment?

  • That there is a course of conduct
  • which amounts to harassment of another, and
  • which the defendant knows, or ought to know amounts to harassment of another.

Additionally, for the more serious offence the prosecution has to prove:

  • that the course of conduct causes another to fear that violence will be used against him; and
  • that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him

How would I know it is harassment?

 The test of whether you ought to know that the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment.

The same test applies in respect of fear of violence.

Are there any time limits for bringing a prosecution?

 At least one of the incidents has to have occurred within six months of the charge for the basic offence without violence.  There is no such time limit for the aggravated offence.

What about defences?

 There are three available defences for the basic offence:

  • that the course of conduct was for the purpose of preventing or detecting crime
  • that it was conducted under a rule of law
  • that it was reasonable in the circumstances.

Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of their or another’s property.

What sentence could I get for harassment?

For the offence without violence, the basic offence of harassment, up to six months imprisonment can be imposed.  This increased to 2 years if the offence is racially aggravated.

For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017.  Again, this is increased where the offence is racially aggravated to 7 or 14 years, again dependent on the date of the offence.

Restraining Orders

A restraining order can also be imposed.  The aim of such an order is to protect the victim of the offence from further incidents, contact or risk of violence.

Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.

How we can assist

The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.

As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to our free and independent legal advice.

The advantages of such early legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

 You can find your nearest office here.

grievous bodily harm
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:

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News

Sentencing Guidelines for Breaching Court Orders

On 7 June 2018 the Sentencing Council published new guidelines for judges and magistrates.  These are to be used when offenders are being sentenced for breaching court orders.

The guidelines provide a clear approach.  This mean that the way courts deal with such offenders will be tightened up.  These are people who are breaching court orders by not complying with orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.

It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use.  They will help ensure that for offenders breaching court orders those sentencing will impose appropriate penalties according to the seriousness of the breach.

breaching court orders

What breaches of court orders are covered by the guideline?

  • Breach of a Community Order
  • Breach of a Suspended Sentence Order
  • Breach of Post Sentence Supervision
  • Failing to Surrender to Bail
  • Breach of a Protective Order (restraining and non-molestation orders)
  • Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
  • Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
  • Failing to Comply with Notification Requirement
  • Breach of Disqualification from acting as a director
  • Breach of Disqualification from keeping an animal

When does the guideline on breaching court orders come in to force?

The guideline for breaching court orders will come into effect in courts on 1 October 2018.

Is the guideline a change in approach?

Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaching court orders.

For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so.

The guideline gives clearer guidance on this consideration.  Offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.

The guideline also covers breaching court orders imposed to prevent particular behaviour or protect individuals or groups from it.  These include Sexual Harm Prevention Orders and Restraining Orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.

Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public.  As a result no actual harm needs to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.

Sentencing Council member Julian Goose said:

“Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”

Will more people go to prison as a result?

The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats.  However, the following pattern emerges:

Protective orders:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’

Criminal Behaviour Order:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’

Breach of notification requirements:

‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’

Suspended Sentence Orders:

‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’

Breach of disqualifications:

‘…any potential impact would be minimal.’

Failing to surrender to bail:

‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’

There was insufficient data to provide an insight into the effect on sentencing for breach of Sexual Harm Prevention Orders or SOPOs.

In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.

If you are breaching a court order how can we help?

 If you know that you are in breach of a court order then please contact us immediately.  The breach may be a matter investigated by the police and involving a police interview.  If so, our independent advice and representation of you in such an interview will be free of charge.

If you face court proceedings it may well be that you are entitled to free legal aid in the Magistrates’ Court or legal aid with or without a contribution in the Crown Court.

You can find the office most convenient to you here.

breaching court orders

Alternatively you can use the contact form below.

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News

Defending an allegation of stalking

stalkingNew offences of stalking (in addition to the existing offences of harassment) were introduced by Parliament relatively recently in 2012. The offences are harassment which involves a course of conduct that amounts to stalking.

There are two offences.  These are stalking involving fear of violence and stalking involving serious alarm or distress.

What is stalking?

There is no strict definition, but the legislation lists a number of behaviours associated with stalking:

  • following a person
  • contacting or attempting to contact a person by any means
  • publishing material relating to a person or purporting to come from them
  • monitoring a person’s use of the internet, email or communications
  • loitering
  • interfering with any property in the possession of a person
  • watching or spying on a person

The list is not exhaustive.  Nor is behaving in one of these ways automatically stalking.  Context is everything in such offences.

 What must the prosecution prove in a stalking case?

  • That there is a course of conduct
  • which constitutes harassment, and
  • the course of conduct amounts to stalking.

Additionally, for the offence involving fear of violence it must be proven that:

  • the conduct causes another to fear that violence will be used against him; and
  • which the defendant knows or ought to know will cause another to fear that violence will be used against him.

stalkingThe test as to whether a suspect “ought to know” these things about their conduct is whether a reasonable person in possession of the same information would think that the course of conduct would cause the other to fear violence.

It is an offence if conduct amounts to stalking and causes another to fear, on at least two occasions, that violence will be used.  Alternatively, it will be an offence if the conduct causes serious alarm or distress and this has a substantial effect on a person’s day to day activities.

This could mean that they have to, for example:

  • change a route they normally use
  • move home
  • change the way they socialise.

It could also mean a change to a person’s physical or mental health.

Are there any defences to stalking?

It is a defence to show –

  • the course of conduct was pursued for the purpose of preventing or detecting crime
  • the course of conduct was pursued under a rule of law
  • that any conduct was reasonable

stalkingAdditionally, for the offence alleging a fear of violence offence, it will be a defence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of their or another’s property.

What sentence could I get for stalking?

stalkingFor the basic offence of stalking the maximum sentence is six months’ imprisonment.

For the offence causing fear of violence or serious alarm or distress the maximum sentence is 10 years imprisonment for an offence on or after 2 April 2017.  The maximum sentence is 5 years for offences committed prior to that date.

A restraining order to protect the victim from further contact can also be imposed.  This could be the case even where a defendant is found not guilty of the offence.

Seek early advice from an expert in criminal law

These are serious allegations.  The law is complex.  As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.

As experienced defence solicitors we know that there is always another side to the story, let us tell that for you.

The advantages of early advice legal advice can be found here.

 

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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News

How to Discharge a Restraining Order

A great many people are subject to restraining orders made under the Protection From Harassment Act 1997.  The orders are designed to protect people from harassment and are commonly made in so-called ‘domestic violence’ cases.  Advice is not given by the court at the time about how to discharge a restraining order.

Of course, life moves on.  It is quite common for old relationships to become re-established. If this should happen before a successful application is made to discharge a restraining order, the person subject to the order is at serious risk of committing a criminal offence.  The offence of breaching a restraining order carries a maximum sentence of 5 years imprisonment.

In other cases a restraining order may have, for example, geographic restrictions that are no longer appropriate.

Whatever the reason, there is a procedure to vary or discharge the order.

Is legal aid available to discharge a restraining order?

Legal aid may be available to a person subject to the order, dependant on a full assessment.

We also offer a competitively priced private client service.

Who makes the application to discharge the order?

The Act says 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.’

This is important as it allows the person who is protected by the order to support or even initiate, any application to vary or discharge.

What are the criteria for discharge of the order?

There aren’t any statutory criteria for the court to apply, but case law sets out the following approach:

‘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.’

It follows therefore that there really must be a compelling case to persuade the court to change its mind based on a change in circumstances.

Where the person protected by the order supports the discharge, the application is much stronger.  In this context the Court of Appeal has observed:

‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.  It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How we can assist with your application

Firstly we will take your instructions and advise you as to the chances of a successful variation of discharge of your restraining order.

If the application is to be made, we will meticulously prepare an evidence bundle and submissions for the court and present these on your behalf.

If we represented you in the original hearing then we will already have the information relating to your case.  If another firm of solicitors dealt with your case then we will be able to contact them to seek the papers relating to that case.

Please contact the office most convenient to you.  Alternatively you can use the contact form below.

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News

Prison Avoided For Repeated Restraining Order Breach

derby criminal defence lawyer mitigates restraining order
Derby crime solicitor John Young

Derby crime solicitor John Young recently acted for a client who faced what appeared to be an inevitable prison sentence.  His client had an appalling history for breaching his restraining order.  A first order had been made in 2010 but this had been breached five times.

Although that order was revoked in 2012, a  second Restraining Order was imposed in 2014.  That order had already been breached 10 times with the most recent sentence for breach being three weeks prior to this sentencing.

New breaches of a restraining order

John’s client was originally charged with two allegations of breaching the restraining order.  On the second occasion he had been arrested at his ex-partner’s address so was clearly guilty of the offence.  However John was able to negotiate with the prosecution that it wasn’t in the public interest to proceed with both charges.  As a result, his client only pleaded guilty to the single offence.

All of the circumstances would suggest that a prison sentence was inevitable in this case:

  • offence committed during a period of supervision
  • offence placed him in breach of a community order
  • he had an extremely poor record for identical offending

The sentencing guidelines suggested that not only should the case be dealt with by a prison sentence, but that the client should have been committed to Derby Crown Court for sentence.  A sentence of six months in prison was represented by the prosecution as being insufficient because of these guidelines.

Suspended sentence rather than immediate custody

Instead, John used all of his experience and persuasive advocacy to ensure that his client received a further chance to turn his offending around while in the community.   It is hoped he can avoid further breaches of his restraining order.

Continuity of Representation

John’s client was assisted by the fact that we are able to provide continuity of representation in most cases.  He had dealt with his client for the previous court appearance so knew all of his background and the history of previous orders.  As a result, all of this worked to his client’s advantage.

John’s client was both surprised and pleased to receive a suspended sentence rather than an immediate prison sentence of some length.

Contact a Derby Criminal Defence Solicitor

We offer 24 hour emergency advice and representation for those being investigated for criminal offences or detained for court at weekends.  Police station advice and representation will always be free of charge to you, as will any interview with the police under caution, whether you are arrested or a volunteer, at the police station or at your home address.

The locations and contact details for your nearest office can be found here.

John Young can be contacted on 01332 546818 or if you want to email him then please use the form below.

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Domestic Violence Trial in Mansfield – Not Guilty

domestic violence trial mansfield crime solicitor tim haines
Mansfield criminal defence solicitor Tim Haines

Mansfield crime solicitor Tim Haines recently used all of his experience to secure a not guilty verdict in a domestic violence trial.  The case required sensitivity  and a clear trial strategy.

During an acrimonious relationship breakdown, Tim’s client was charged with an allegation of common assault.  He was said to have slapped his son in the presence of his estranged wife.

In interview and thereafter, Tim’s client always maintained his innocence.  He claimed that it was a false allegation designed to make sure he had to leave the matrimonial home.

Special Measures for Child Witness in Domestic Violence Trial

Tim knew that this had the potential to be an emotive trial.  Special Measures were granted to help the young witness give his best evidence.  This meant that he appeared in court over a video link. Although it was a distressing experience for him, Tim had to ask him questions about the incident to test whether witnesses were telling the truth.

Our client’s wife then gave evidence about the incident.

She was followed by Tim’s client who gave evidence on his own behalf along with a character witness.

Tim was then able to address the Magistrates’ as to the evidence in the case.  His client had been consistent in his account to both the police and the court, and was helped by the evidence of good character that he was able to provide.

Not Guilty Verdict and No Restraining Order

domestic violence trial mansfield criminal defence solicitors
Mansfield Magistrates’ Court

On the other hand, there were inconsistencies in the evidence of the young witness and our client’s wife that were significant and not easy to explain away.

As a result, after full deliberation, the Magistrates’ were not persuaded that the prosecution had proved the case to the criminal standard of proof.  They were not sure that Tim’s client had assaulted the child so was found ‘not guilty’.

Contact a Criminal Defence Solicitor in Mansfield

Allegations of domestic violence are treated seriously by the courts.  They also need handling with sensitivity.  The law can be complex, particularly where the prosecution do not seek to rely on the complainant’s evidence.

As a result, if you are arrested or know that the police wish to speak to you about an offence of domestic violence make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

defending domestic violence cases

Tim Haines can be contacted on 01623 675816 or by using the form below.

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