Breach of protective order
1.3 million domestic abuse related incidents were reported to the police last year.
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Breaches of protective orders are taken seriously by the Courts as it is seen as a continuation of the behaviour that led to the imposition of the protective order, and the courts do not like their orders being ignored. If convicted the Courts are not shy in imposing prison sentences, and the maximum penalty is up to 5 years in prison.
A mere allegation of breaching a restraining order or non-molestation order can be enough to result in arrest or a voluntary interview. For a suspect this can mean further restrictive conditions, a charge, a court case and a substantial sentence if convicted.
For suspects, police investigations and Court hearings can have a dramatic impact on day to day living. 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.
A breach of protective orders is rarely the only live issue in a domestic incident, it often coincides with allegations of assault, criminal damage, harassment, stalking, controlling or coercive behaviour, threats to kill, social media offences and public order offences.
Key points for suspects
Being subject to a restraining order or non-molestation order puts you in a very weak position as you can expect any breach allegation to be taken seriously by the police with an arrest or voluntary interview under caution and possible additional bail conditions or remand into custody. If charged and convicted you are likely to receive a substantial sentence, with prison a very real risk.
I can assist you with defending the imposition of such a protective order as you must be given notice of the intention to apply for a restraining order, and you must be given the right to make representation in relation to a non-molestation order, especially if it was granted in your absence. I can also assist you with an application to vary or discharge a protective order.
If you are investigated or charged with a breach I can get involved at any stage to assist you to put forward a robust evidence-based defence case to undermine the allegations made. This can speed up the removal of restrictive bail conditions and have seized property such as mobile phones and computers returned to you.
Protective orders explained
Before considering the situation where a restraining order or non-molestation order has been breached it is useful to summarise the basics behind each order.
Although restraining orders and non-molestation orders are issued in different ways they are intended to be preventative and to protect the victim (or other named person) from any future harassment or fear of violence, rather than to punish the recipient.
Restraining orders are granted by criminal courts, they can be made on conviction or acquittal. Victim views are central to a restraining order application, but the Court can impose one against the wishes of the victim if it sees fit.
An order made on acquittal or conviction can be appealed upon application. An application to vary or discharge the order can be made by the victim, prosecutor, defendant or any other person mentioned in the order. The onus is on the applicant to satisfy the court that there is no longer a risk to the victim.
Non-molestation orders are granted by civil county courts, usually upon application of the victim. Once served upon the recipient the terms of the order are in force subject to any further hearings where the recipient can apply to vary or discharge the order by satisfying the court that there is no risk to the victim.
Breach of protective order explained
Breaches of a restraining order or a non-molestation order are criminal matters and are therefore investigated by the police and if charged the cases are heard at the magistrates or crown court. Alternatively, a breach of non-molestation order can be dealt with as a contempt of Court at the civil court, but the maximum penalty is reduced to 2 years in prison. However, proceedings for breach of non-molestation orders can only take place in one or another of the jurisdictions, not both.
It is an offence for suspect to breach an order. A suspect must be aware of the existence of the order, this is straightforward for restraining orders as they are usually imposed on the defendant who is present at the magistrates court or crown court hearing following a conviction or acquittal for another offence. Non-molestation orders are often granted in favour of the victim in the absence of the recipient, therefore the order must be served upon the recipient before it becomes effective, it is common sense that you cannot be in breach of an order that you have no awareness of.
A single breach is sufficient for an investigation and charge.
Defences to protective orders
The sole defence to a breach of an order is that the suspect had a reasonable excuse. The standard of proof, which is for the suspect to put forward, is the balance of probabilities, which in effect means the court will need to decide if it is more likely than not that the suspect had a reasonable excuse for breaching the order.
Examples of a reasonable excuse that the Court could decide upon could include:
Bumping into the protected person in a public place such as the supermarket and apologising for the accidental contact, while there is a term in place not to contact or be within 100 metres of the protected person.
Accidentally pocket dialling the protected person from a mobile phone, while there is a term in place not to contact the protected person.
Attending an emergency medical appointment that transpires to be within a fixed exclusion zone of the protected person’s home address.
Additionally, it can be argued by the suspect that there was no breach, that the victim is mistaken or made a false allegation.
Types of evidence used to prove or disprove the offence include:
Copies of emails
Evidence of contact or abuse (or not) over the internet, digital technology and social media platforms
Telephone call transcripts
Records of interaction with services such as support services
Witness testimony, for example the family and friends of the parties
Local enquiries: neighbours, regular deliveries, postal, window cleaner etc
Bank records to demonstrate a person was elsewhere at the time
GPS tracking devices installed on mobile phones, tablets, vehicles etc.
A single breach is enough for an arrest and charge. Good legal advice is essential at an early stage.