If you can prove that you or your children are in danger, a restraining order prohibits your abuser from contacting, harassing, threatening, and communicating with you. It forces your abuser to move out of your home, restricts them from going to your place of employment or your children's school, and can prevent them from owning a firearm. If your abuser violates the restraining order in any way, they can be immediately arrested and taken to jail. It's important you keep the restraining order with you because if it's violated, you can immediately show the order to the police who respond to your call.
Other reasons to seek a restraining order include the loss of assets or patent and trademark infringement. While less common, you can still request a restraining order if, for example, your ex-spouse is in the process of moving or hiding money or depleting your assets to prevent you from acquiring your fair share.
The court may issue a restraining order to prevent further action on their part. You may also obtain a restraining order during an infringement lawsuit. If another party is illegally using, selling, or manufacturing an item for which you have obtained a patent, you may ask the court for a restraining order to prevent their continued use of the patented item while the lawsuit is pending.
The only way you can get a restraining order is to go through the court. If there's an immediacy situation where you need to get a restraining order fast, you can petition the court for an emergency hearing. The court listens to the reasons why you're seeking a restraining order and if issued, it must then be properly served upon the accused. Following the implementation of section 12 of the DVCVA , restraining orders may be made on conviction or acquittal for any criminal offence.
These orders are intended to be preventative and protective. The guiding principle is that there must be a need for the order to protect a person or persons. A restraining order is therefore preventative, not punitive. Restraining orders can only be made in respect of the defendant not the victim or any witness , even if evidence in the course of a trial indicates that the behaviour of both the defendant and the victim requires addressing.
The test to be applied by the court before making an order is whether an order is necessary to protect the persons named in it from harassment or conduct that will put them in fear of violence. This necessitates an evaluation by the court of the evidence before it. It will require the court to determine whether there is sufficient evidence in front of it to enable it to form a view that an order is necessary. The court retains its power to bind over the defendant, victim or witnesses of its own motion at any time before the conclusion of the criminal proceedings or on acquittal where it believes a person's behaviour is such that there might be a breach of the peace in the future.
For further guidance see Binding Over Orders. Restraining orders are distinct from anti-social behaviour orders ASBOs on conviction section 1C of the Crime and Disorder Act in a number of ways.
Restraining orders:. Section 12 of the DVCVA amended section 5 of the PHA to allow the court to make a restraining order following a conviction for any criminal offence, where the conviction occurs after 30 September Paragraph 5 of Schedule 12 of the DVCVA provided that section 12 only applies where the conviction or acquittal occurs after the commencement date.
It follows that a restraining order can be made when the date upon which the offence was committed was prior to 30 September When sentencing for any offence the court can now, under the above provisions, make a restraining order for the purpose of protecting a person the victim or victims of the offence or any other person mentioned in the order from conduct which amounts to harassment or which will cause a fear of violence.
Restraining orders are therefore likely to be appropriate in cases where the defendant and the victim are known to each other whatever the charge and where there is a continuing risk to the victim of harassment or violence after the date of conviction. Section 12 of the DVCVA introduced section 5A into the PHA , which allows the court to make a restraining order after acquitting a defendant of any offence if the court considers it necessary to do so to protect a person from harassment from the defendant.
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. Harassment is not defined in the PHA , except that it includes causing a person alarm or distress.
For further guidance see Stalking and Harassment. Section 5A 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 particular charges before the court. It is still open to the victim to seek a non-molestation order or injunction from a civil court.
However, this more proactive approach on the part of the courts using section 5A is seen as not only avoiding delay and increased costs to the legal aid budget, but also providing a more seamless process of providing protection to victims. Section 5A only applies where there has been an acquittal. It does not apply where proceedings have been withdrawn or discontinued. An "acquittal" under section 5A of the PHA means any occasion when proceedings are dismissed following the hearing of evidence at trial.
This interpretation of the word would also include the situation when the prosecution offers no evidence with regard to the substantive charge: R O v Stratford Youth Court [] EWHC Admin. The effect of section 17 of the Criminal Justice Act is that where a prosecutor offers no evidence against a defendant who has pleaded not guilty to an indictable offence in the Crown Court, the court may order that a verdict of not guilty is recorded, and this has the same effect as if the defendant had been tried and acquitted.
On a summary trial, where a charge is dismissed following the prosecution's decision to offer no evidence, this would be regarded as an acquittal for the purposes of the doctrine of "autrefois acquit". Applying this logic to section 5A 1 , it is arguable that the reference to a court before which the defendant is acquitted of an offence should be read to include a court before which the prosecution offered no evidence and a charge was dismissed.
See further guidance in the section Offering no evidence and making an application. However, restraining orders are not limited to these types of cases. The overriding consideration should always be whether a restraining order is required to protect the victim or other person. Prosecutors should have in mind at the time of charge or review whether a restraining order might be appropriate in the event of an acquittal or conviction.
This will enable prosecutors to ensure that sufficient information is before the court for the court to exercise its powers. In cases which require a Plea and Sentence Document PSD , the PSD should set out, if appropriate, whether the court should be invited to make a restraining order either on conviction or acquittal. The PSD should set out the grounds for inviting the court to make such an order, and suggested prohibitions which the order should contain.
Police Officers should make representations regarding restraining orders using the forms MG5 and MG 6 when providing information about restraining orders to prosecutors. These should specifically confirm whether the views of the victim s or other named person in the order have been obtained.
Where such information is not received with the case file, prosecutors should confirm promptly with the police that a restraining order is required by the victim. In such instances the prosecution should not object to the victims' wishes but inform the court as ultimately it will be a matter for the court. A victim should also be given the opportunity to make a Victim Personal Statement.
For further guidance see Victim Personal Statements. Whilst a court can make a restraining order of its own volition, prosecutors also have an obligation to remind sentencing courts of the option of making a restraining order, including when the defendant has been acquitted.
The procedural rules for making applications are set out in Part 50 of the Criminal Procedure Rules. These apply in both the magistrates' court and the Crown Court. It is important that sufficient notice is given to a defendant when an application for a restraining order is made. In R v K [] EWCA Crim 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.
The courts will only make a restraining order after acquitting a defendant of any offence if the court considers it necessary to protect a person from harassment from the defendant.
On average, it takes between one to two weeks to acquire the order. In this instance, you will need to go back to court at a later date for a hearing once the abuser has been given notice of the order.
A temporary order aims to protect an individual until there is a subsequent or final hearing. A permanent restraining order is much longer-term, usually months , and sometimes can last indefinitely. This type of order is generally made at trial.
A court can extend an order. You can do this via an application for an extension hearing. The hearing can take place up to 1 year after your first restraining order. If the abuser violates any of the terms of the restraining order, the victim should call the police. Once the police have been alerted for violations of the order, they will sign a criminal complaint meaning the abuser is in contempt of court. The breach of any court order, including a restraining order, is classed as a criminal offence.
Any infringement of an order is a serious matter and will result in serve legal consequences. The sanctions imposed by the courts for breaching a court order can include:. If there has been a breach of an order, the victim will need to provide proof in court.
The judge will then evaluate the evidence and conclude whether defiance occurred or not and whether the defendant will face any sanctions. As the courts put restraining orders in place, you will also need to use the court process to remove them.
If you intend to lift or drop a restraining order before the time limit expires, then a motion will need to be filed with the court. A motion is a process of removing a law. In the court hearing, the judge will decide whether to grant or deny the application to remove the restraining order.
Some factors that impact whether the judge grants the application are whether you were forced or coerced to apply for the removal of the order. Even if you can prove you solely decided to make this application, the judge may still not agree to remove the order if they believe it is in your best interests. Criminal proceedings are a complicated procedure at a very stressful time.
If you need a solicitor to defend a criminal accusation against you or need a solicitor to help you apply for an injunction or non-molestation in a civil court, we can help. In what follows, I assume you are the person who is the subject of the R. But why would you want to, unless it involves access to an area or property? The very act of saying No, I want to contact this person even though they have applied to the Court and Police for protection from you, is suspicious.
South Yorkshire Police did nothing infact they arrested me and placed me in a cell for 6 Hrs because when the son hit me I hit him back. The Police are totally Inept and negligent at best.
The police are very good at protecting the criminals it saves them paper work. My Lawyers nor the Courts fully explained the implications. It is indefinite Order and is restricting employment and volunteer opportunities. I want my life back. I have moved on, made changes in my life and have no interest in having anything to do with the victim, who moved to a tax heaven over 7 years ago. Can someone with a restraining order be arrested if another person say a relative or friend tries to contact the person they have a restraining order against?
As in a friend trying to contact and have a discussion with the person on behalf of the person that was given the restraining order. Depending on the order, yes. Some orders state no contact allowed, which includes via 3rd party.
What can I do if the person who has an R. She randomly phones my mobile with her caller Ident hidden. This is happening several times a week. I have deleted her number etc.. I could end up in jail because of this. Researching for a fictional book.
Additionally would I have to put on job applications that I have a restraining order against me in the criminal offences section? My neighbour was convicted of common assault against me, this was , Me and my family have continued to be verbally abused by this person since the conviction, I have reported the incidents to the police, can I get a restraining order?
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