Correspondence

Circular: Sections 12 and 13 of the Domestic Violence, Crime and Victims Act 2004

Home Office circular 017 / 2009 provides guidance on provisions in sections 12 and 13 of the Domestic Violence, Crime and Victims Act 2004.

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Detail

Home Office circular 017 / 2009

Sections 12 and 13 of the Domestic Violence, Crime and Victims Act 2004

  • Broad subject: Crime and Disorder
  • Issue date: Thu Sep 24 12:15:00 BST 2009
  • From:
    Crime and Policing Group (CPG) , Crime Directorate, Violent Crime Unit (VCU)
  • Linked circulars:
    No Linked Circulars

  • Sub category: Domestic violence
  • Implementation date: Thu Sep 24 12:15:52 BST 2009
  • For more info contact:
    Samantha Darby -  0207 035 3273 

Introduction

This circular provides guidance on the provisions in sections 12 and 13 of the Domestic Violence, Crime and Victims Act 2004 which come into force on 30th September 2009.

  1. Section 12, by its amendment of section 5 of the Protection from Harassment Act 1997 (the 1997 Act) and its insertion of section 5A into that Act, extends the courts’ powers in England and Wales under the 1997 Act, to enable them to impose a restraining order in a much wider range of circumstances. A restraining order is currently only available following conviction for an offence under sections 2 or 4 of the 1997 Act.

  2. From 30th September 2009 when sentencing for any offence the court will be able to make a restraining order for the purpose of protecting a person from conduct which amounts to harassment or will cause a fear of violence.

  3. On acquittal for any offence, the court will be able to make a restraining order if the court considers it necessary to protect a person from harassment.

  4. Section 12 also gives any person mentioned in a restraining order the right to make representations in court if an application is made to vary or discharge the order. Section 13 makes equivalent amendments in respect of Northern Ireland.

  5. In England and Wales an individual subject to a restraining order will be entitled to criminal legal aid provided they meet the ‘Interests of Justice’ test and pass the relevant financial eligibility criteria.

  6. In England and Wales civil legal aid can be made available to the victim if they need advice and representation in respect of proceedings covered by the new provisions. In order to protect victims of domestic violence, the Legal Services Commission can waive the usual financial eligibility criteria which would otherwise apply to applications for civil legal aid.

  7. The restraining order may be used to prohibit the defendant from a wide range of conduct with the aim of protecting a person from conduct that amounts to harassment or that will cause fear of violence, as the case may be.

  8. The criminal court will have heard the circumstances of the case, and much of the evidence pertaining to why a restraining order may be necessary. So, rather than the victim having to make a separate application in a civil court for an injunction, the provisions will allow the criminal court to make the order at the end of the trial. This will avoid the need for the evidence to be produced and heard again, and the additional trauma this may involve for the victim.

  9. The provisions come into force on 30th September 2009 and apply in England, Wales and Northern Ireland. The circular is for guidance only and should not be regarded as providing legal advice.

  10. The relevant sections of the 2004 Act can be viewed at on the Criminal Justice acts page part 2  and the Explanatory Notes pages 8 and 9 on the OPSI website.

Background

  1. Section 2 of the 1997 Act created a summary only offence of harassment; section 4 created an offence, triable either summarily or on indictment, of putting people in fear of violence. An offence under section 2 is committed where a person’s course of conduct amounts to harassment of another person and he knows or ought to know that it amounts to harassment of the other person. An offence under section 4 is committed where a person’s course of conduct causes another person to fear on at least two occasions that violence will be used against him and he knows or ought to have known that his course of conduct will have that effect. Restraining orders have previously been available under the 1997 Act but only on conviction for those two offences.

  2. Section 12, by its amendment of section 5 and its insertion of section 5A of the 1997 Act, extends the circumstances in which a restraining order can be made under the 1997 Act following criminal proceedings. The amended sections 5 and 5A are set out at annex A.

  3. Section 12(1) of the 2004 Act extends the courts’ power to make a restraining order on conviction for any offence, rather than only on conviction for offences under sections 2 or 4 of the 1997 Act [section 5(1) of the 1997 Act].

  4. Section 12(2) of the 2004 Act provides that when a court is considering making a restraining order after conviction, the prosecution and the defence may bring any further evidence before the court that would be admissible in civil proceedings under section 3 of the 1997 Act (section 3 of the 1997 Act sets out the procedure for obtaining an injunction to prevent harassment in civil courts) [section 5(3A) of the 1997 Act].

  5. Section 12(3) of the 2004 Act gives any person mentioned in the order the right to make representations to the court when an application is made to vary or discharge the order. This in turn, along with Part 50.5 of the Criminal Procedure Rules which set out court procedure for the varying or discharging of an order, will ensure that victims and defendants are notified of any application to vary or discharge an order [section 5 (4A) of the 1997 Act].

  6. Section 12(4) of the 2004 Act allows a court when dealing with a person for the offence of breach of a restraining order under section 5 of the 1997 Act to vary or discharge the order in question irrespective of whether it was the court that made the original order [section 5(7) of the 1997 Act].

  7. Section 12(5) of the 2004 Act introduces a new section to the 1997 Act, which provides for restraining orders on acquittal. Courts can consider making a restraining order when a person has been acquitted of any offence, where the court believes a restraining order is necessary to protect a person from harassment [section 5A(1) of the 1997 Act].

  8. The aim of this section is to deal with the situation where a criminal case ends in acquittal but it is apparent from the circumstances of the case that a person needs protection from harassment. It is of course open to the victim to seek a non-molestation order or injunction against harassment from a civil court. However, this more proactive approach on the part of the courts would not only avoid delay and increased costs to the legal aid budget, but also provide a more seamless protection for the victim.

  9. Provisions inserted by section 12(5) provide that subsections (3) to (7) of section 5 apply equally to an order under section 5A. In addition, an order made on acquittal can be appealed against in the same way as an order made on conviction. Where a conviction is quashed on appeal, the Court of Appeal may remit the case to the Crown Court who may make a restraining order if satisfied that it is necessary to do so to protect any person from harassment [section 5A(3) of the 1997 Act].

  10. Where the Crown Court allows an appeal against conviction or a case is remitted to the Crown Court by the Court of Appeal under section 5A(3), the Crown Court may consider whether to proceed to the making of a restraining order as it might had the defendant been acquitted of the offence before it [section 5(4)(a) and (b) of the 1997 Act].

  11. Section 13 of the 2004 Act extends for Northern Ireland the circumstances in which a restraining order can be made under the Protection from Harassment (Northern Ireland) Order 1997 following criminal proceedings, in line with the equivalent provisions for England and Wales.

Application

  1. The court can make an order of its own volition. Prosecutors and Associate Prosecutors have an obligation to remind sentencing courts of the possibility of using a restraining order and should also remind the court that a restraining order can also be imposed when a defendant is acquitted. Police officers should make representations using form [MG13] when providing evidence to prosecutors/court.

  2. The purpose of a restraining order is preventative, not punitive - it is a measure designed to protect someone from harassment/fear of violence. Before making an order the court will have to be satisfied that it is necessary to do so.

  3. When the court imposes a restraining order under the 1997 Act (as amended by the 2004 Act) on a person who is sentenced to custody, the court must ensure a copy of the Order is attached to the warrant and Person Escort Record (PER) for onward transmission to the receiving prison establishment[1]. This will enable HM Prison Service to identify prisoners to whom Harassment Procedures (Chapter 6 of the Public Protection Manual) should be applied.

Breach of Order/Penalties

  1. Section 5(5) of the 1997 Act provides that if without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

  2. Section 5(6) of the 1997 Act provides that a person guilty of an offence under this section is liable

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

  1. These provisions apply equally to the breach of an order made under section 5A.

ACPO Guidance

CPS Guidance

HMP Guidance (Public Protection Manual) Prison Service Instruction 08/2009 Public Protection Manual Review

 

Protection from Harassment Act 1997 as amended by section 12 Domestic Violence Crime and Victims Act 2004

Section 5 Restraining Orders

(1) A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence may (as well as sentencing him or dealing with him in any other way) make an order under this section.

(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from conduct which–

(a) amounts to harassment, or

(b) will cause a fear of violence,

prohibit the defendant from doing anything described in the order.

(3) The order may have effect for a specified period or until further order.

(3A) In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3.

(4) 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.

(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).

(5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

(6) A person guilty of an offence under this section is liable

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

(7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.

5A Restraining orders on acquittal

(1)* A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.

(2) Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one.

(3) Where the Court of Appeal allow an appeal against conviction they may remit the case to the Crown Court to consider whether to proceed under this section.

(4) Where

(a) the Crown Court allows an appeal against conviction

(b) a case is remitted to the Crown Court under subsection (3),

the reference in subsection (1) to a court before which a person is acquitted of an offence is to be read as referring to that court.

(5) A person made subject to an order under this section has the same right of appeal against the order as if–

(a) he had been convicted of the offence in question before the court which made the order, and

(b) the order had been made under section 5.

  • See Crown and Magistrates Court Managers Instruction EN/CrB.026/07