The Crown offered no evidence and a formal verdict of not guilty was entered by the court. The Crown then applied for a restraining order.
The judge remarked that the defendant should never been charged or committed but nevertheless granted a restraining order so as to prevent further trouble. The defendant appealed on the grounds that the judge had erred in law in imposing a restraining order and alternatively erred in identifying the factual basis for it. The court cited R v Major [] EWCA Crim and R v K and ruled that the procedure followed by the court denied the defendant an opportunity to make any representations and accordingly quashed the restraining order.
The court may have regard to any evidence it may have heard during a criminal trial in determining whether a restraining order is required. However, further evidence may be required especially where the defendant has been acquitted either after trial or following the offering of no evidence by the prosecution.
In assisting the court, both the prosecution and defence may lead, as further evidence, any evidence that would be admissible in proceedings for a civil injunction under section 3 of the Protection from Harassment Act section 5 3A PHA This will allow prosecutors to lead evidence over and above the facts before the court together with evidence that may not have been admissible in the criminal proceedings.
Examples of such evidence include:. Prosecutors should follow the rules of civil evidence in order to adduce further evidence to enable the court to determine whether to make a restraining order. In all cases, prosecutors should be prepared to give the court relevant background information upon the court's request. This may include whether the defendant is subject to any civil injunctions or whether there are any pending applications for civil injunctions.
It will be important to check that the information provided is still up-to-date when the matter comes before the court, to ensure that the information given is still accurate. Prosecutors should always consider whether a restraining order is required at the outset and request the police to seek the victim's view. Although a court can make a restraining order where the prosecution has offered no evidence, it is imperative that prosecutors bear in mind the procedure when applying for a restraining order.
Since no evidence will have been heard in the sense that there will have been no trial, the prosecution will have to adduce evidence to support its request for the court to make a restraining order. The effect is that any evidence which would be admissible in proceedings for an injunction under section 3 would be admissible by way of further evidence for the purposes of seeking a restraining order on acquittal.
It is likely that a court would require further evidence to be satisfied that it was necessary to make the restraining order to protect the victim from harassment by the defendant, and the court would not be able to make this assessment without seeing any evidence at all. Evidence generally means sworn testimony, exhibits and agreed facts.
It would be sensible to establish before presenting the evidence what is and is not in dispute. The court is not concerned to establish a criminal offence beyond reasonable doubt, just that there is enough evidence on the balance of probabilities to impose an order which is required to protect a victim. Once the facts are agreed, the prosecutor may offer no evidence provided the defence agree to a Restraining Order and then outline the agreed facts to a court.
There may be circumstances where the defence initially agree to a Restraining Order, but change their mind AFTER the prosecution offers no evidence. In R v Major [] EWCA Crim 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.
However the court also stated that the judge should identify the factual basis for granting a restraining order which must be based on evidence, and the standard of proof for a post acquittal restraining order is a civil one.
Where necessary, this may include adjourning a case to call witnesses. Although offering no evidence and applying for a restraining order may be a sensible way of disposing of some cases, Prosecutors are reminded to be circumspect about this approach and ensure that it does not become the default position particularly in Domestic Violence cases.
When advising the court of its powers to make a restraining order, it will be of assistance to the court if the prosecutor is able to provide it with a draft order setting out proposed prohibitions.
A template for use when drafting a restraining order is available. Do not use references to "fear of violence" in draft post-acquittal orders as there is no power to protect a person from fear of violence that falls short of harassment where the defendant has been acquitted. A restraining order made under section 5 or 5A of the PHA may have effect for a specified period or until further order section 5 3 PHA Unlike an ASBO, for which there is specific legislative provision for an interim order, there is no power for the court to make an interim restraining order.
However prosecutors should bear in mind the provisions under the Bail Act and request for conditions as appropriate. Under section 5 3 of the PHA, it is possible to make a time-restricted restraining order. However, the test for the making of such a restraining order is the same as for an order of a longer or indefinite period for ASBO interim orders there is a separate lesser test.
Fill out a A application on your phone or computer. What if the person who abused me files a protective order or criminal case against me? Show Endnotes Hide Endnotes. You do not want that to happen, for many reasons: The abusive person may lie about you or make up things you did so they can get a criminal case filed against you. If the abusive person gets an order against you, it takes attention away from their own abusive behavior.
It makes it seem like the domestic violence was your fault as much as it was their fault. It is dangerous for you. If you each have protective orders against each other, the police may not know what to do when there is a problem. You might have trouble getting the police to arrest the abusive person for violating your order. This makes you less safe. It lets the abuser hurt you by using the very system that was set up to protect you.
Tell the judge: You are the victim of domestic violence. If you can, tell the judge about the history of how the other person has abused you, past injuries, medical records, police calls, etc.
Bring police or medical reports, pictures, or witnesses if you can. If you don't have any of these things, tell the judge some details about what happened. Tell the Judge If you think the abusive person is only trying to get an order against you because you left them, or because you have an order out against them, or because they are trying to get custody, or because you have a new romantic partner, or because their friends told them to, etc. If you never physically hurt or tried to physically hurt the person who abused you.
If you never made the other person scared of being physically hurt by you. What do I do if the abusive person files a criminal complaint against me? Batterers' Intervention Programs ». Do not look at the abuser or his lawyer. If you do not understand the question, ask the judge to ask the question again or in another way. This is called their testimony.
You have to ask the witness questions. They cannot just talk to the judge on their own. Sometimes there are problems with what witnesses say when they were not present during the abuse. Sometimes there are problems with evidence such as police reports or doctor reports if the police officer or the doctor is not there.
Talk to a lawyer about these problems before the hearing if you can. The abuser tells his story after taking an oath to tell the truth. The abuser gives his documents to the judge.
You have a right to see any documents he wants the judge to see. BUT, you do not have to. It is not a time to argue or give your side about what he said. Just ask questions. The judge decides if the abuser is truthful. After both you and the abuser present your cases, the judge decides if you get an OFP.
You might have to wait but if the judge decides to give you an OFP, usually you get a copy of the order that day. Sometimes the judge might need time to think about the trial and if you should get the OFP.
If that happens you need to come back to court later in the day or the next day to find out if you got the OFP. If the judge does not give you an OFP, they should tell you why. When you get the order read it carefully. If there are any mistakes, talk to the court clerk to find out how to fix the order.
For example, if you see your address or birth date is wrong, tell the clerk right away. They will fix it and get you a new order. Make copies of your OFP and keep a copy with you at all times. Keep a copy in your purse, in your car, at work, and anywhere else it may be needed. Police are more likely to arrest the abuser for violating your OFP if you have a copy with you.
Consider giving copies of your OFP to your landlord, supervisor at work, day care provider, and your child's school. This court is called the Court of Appeals. Act fast! There are special time limits that apply. Filing an appeal can be difficult. Talk to a lawyer to see if you should file an appeal. For example, the judge did not follow the law.
Call the police. Police must arrest the abuser if they believe the abuser violated an OFP. They do not have to see the violation themselves. Tell the police you have an OFP. Show them a copy of the OFP. Ask them to make the arrest. Violating an OFP once is a misdemeanor crime. An abuser convicted of violating an OFP must be sentenced to at least 3 days in jail and ordered to go to counseling.
But the penalties the judge orders are usually much lower. A prosecutor may call you to see what penalties you think the abuser should get. Violating an OFP 2 times is a gross misdemeanor. An abuser convicted of a 2nd violation must serve at least 10 days in jail. Again, the penalties ordered are usually much lower. If the abuser uses a weapon when violating the OFP it is a felony.
It is also a felony if the abuser violates an OFP 3 or more times in 10 years. Sometimes when an abuser violates the OFP, he also commits a more serious crime in the process. If this happens, other criminal charges might also be filed.
You can also ask the judge in your OFP case to find the abuser in contempt of the court. The court clerk has forms to do this. But for your safety it is better not to. If the abuser comes in the house because you say he can, it is still a violation of the OFP. A protection order from a tribal court must be enforced if the protections are the same as an OFP. Take a certified copy of the tribal court protection order to the courthouse and ask them to file it.
There is no cost. You can go to the courthouse in the county:. If the abuser violates the order, they will know to arrest him. You can sue the abuser for money if you have injuries, including emotional distress. There may be other legal possibilities as well.
Talk to a lawyer about your options. There are time limits that apply. You need to ask the court to change your OFP. This is called a modification. Fill out the forms explaining what you want to change and why. Then file the forms with the court. You can get the forms here: www. The court schedules a hearing. Go to the hearing and tell the judge why you need your OFP changed. The decision is yours. You need to think carefully.
Many times abusers say they are sorry, but soon the abuse starts again. Has the abuser completed a domestic abuse program or counseling? Or is this promise only words?
Has he promised never to hurt or threaten you before but did it anyway? How has the abuser shown he has really changed? You have other choices than dismissing the order. You could change the order to allow contact so you can go to counseling together. This would let you see each other without the abuser violating the OFP. But the other protections of the OFP would stay in place.
You do not have to show there have been new acts of domestic abuse. If you applied for a year OFP for a minor, they need to apply again on their own when they turn The OFP is good even if you move.
Think about giving the court and your local police department your new address. Make sure to tell them your address is confidential. Ask for a certified copy of your OFP from the court that issued it. Take the certified copy to the courthouse in the county you live or work in. You can legally break your lease if you have been a victim of domestic violence, sexual assault, or stalking. You must:. If you have questions, contact a legal aid office or a domestic abuse advocate. A Harassment Restraining Order is a restraining order to prevent harassment.
It is not a criminal case. It takes place in civil court. This can be:. The relationship between you and the harasser does not matter. The harasser may be a stranger, neighbor, or a co-worker. If someone is harassing you, sometimes it helps if you first tell them to stop in writing like a text or email. Keep a copy of how you told them to stop. Write down any time you told the harasser to stop verbally.
For an OFP, the abuser must be family, you must have lived with them, or you must have a child together or a significant romantic relationship. For an HRO, the relationship between you and the harasser does not matter.
Some behaviors do not meet the legal definition of domestic abuse but do meet the definition of harassment. For example, your ex-boyfriend calls you over and over saying he is going to take custody of your child.
If his calls make you afraid of being harmed, it is domestic abuse. The court can order the harasser not to contact you and your family. It allows the police to arrest the harasser without a warrant. The HRO can last for 2 years, or longer if the harasser has violated restraining orders before.
To get an HRO you need to get the forms, fill them out, and file them with the courthouse. The courthouse can be in the county. There is a filing fee for applying for an HRO. But the court can waive the fee or lower the fee if:. There are many different kinds of harassment. The court has to decide if your situation meets the legal definition of harassment. Give as much detail and specific examples of the harassment as you can. The court can only look at the information in your forms to decide if you should get an HRO.
Only a judge can decide if you get the HRO. It may take days for the judge to make a decision. The forms you fill out to ask for your HRO have to be given to the harasser in a certain way. Give the sheriff all the information you can about where to find the harasser. If the court does not give you an HRO and does not schedule a hearing, the harasser will not be served with your forms. Not necessarily. In some cases, you can get an HRO without having a court hearing. This is an order you get because the information in your forms shows there is immediate danger of harassment.
You get the order before the harasser has a chance to tell his side of the story. If you get an ex parte HRO, the harasser can ask for a hearing. The abuser has 20 days to ask for a hearing after he is served gets the forms. If you do not get a notice in the mail, keep calling the court to see if the harasser asked for a hearing. If you do not go to the court hearing, the harasser can get the HRO dismissed.
If the judge denies your request for an HRO, you can ask for a hearing. You present your case first. You tell the judge what happened and why you need an HRO. If you have evidence to prove the harassment, bring it to the hearing. Evidence can be phone records or text messages showing that the harasser is repeatedly calling or texting you. It can also be photos, police reports, or medical reports if you were physically or sexually assaulted.
If you have any texts or photos on your phone that you want the judge to see, you need to get them off your phone for the hearing. Bring three copies of your evidence to your hearing. One for the judge, one for the harasser, and one for you. Make sure you bring them all with you. You can't bring things later or say that you have it at home and could bring it later. After you present your case, the harasser presents his case. This is his time to tell his story and show any evidence to the judge.
Sometimes before the case starts, the judge will ask you and the harasser to mediate. You do not have to make any agreements in the mediation. If you are afraid of the harasser tell the judge. They might not make you mediate if you are afraid of the harasser. Police must arrest the harasser if they believe he violated the HRO. The police do not have to see the violation themselves. Tell them you have an HRO.
Ask the police to make the arrest. Violating an HRO is a misdemeanor crime. Penalties include jail time and fines. The penalties usually are much lower.
Penalties for violations increase for the number of violations. You may also ask to have the court hold the harasser in contempt of court in the harassment case. Make copies of your HRO and keep a copy with you at all times. Police are more likely to arrest the harasser for violating your HRO if you have a copy with you.
Consider giving copies of your HRO to your landlord, supervisor at work, day care provider, and your child's school. Anytime you are physically or sexually assaulted harmed , a crime has been committed. Call when the assault happens. Usually the police file reports for calls.
They do not always file a report every time they are called. If you call the police, ask them to file a report. Ask for a copy. Anytime a crime is committed you can ask the police to file a police report. If you did not call the police at the time of the assault, you can call them later and ask them to file a report then. And he or she will have to turn in, sell or store any guns they have now and not be able to buy a gun while the restraining order is in effect.
It may affect his or her immigration status if he or she is trying to get a green card or a visa. Types of restraining orders There are 4 kinds of orders you can ask for: Domestic Violence Restraining Order Elder or Dependent Adult Abuse Restraining Order Civil Harassment Restraining Order Workplace Violence Restraining Order Domestic Violence Restraining Order You can ask for a domestic violence restraining order if: Someone has abused you, and You have a close relationship with that person married or registered domestic partners, divorced, separated, dating or used to date, have a child together, or live together or used to live together — but more than roommates , or you are closely related parent, child, brother, sister, grandmother, grandfather, in-law.
Find more information about domestic violence. Elder or Dependent Adult Abuse Restraining Order You can ask for an elder or dependent adult abuse restraining order if: You are 65 or older, OR You are between 18 and 64 and have certain mental or physical disabilities that keep you from being able to do normal activities or protect yourself; AND You are a victim of: Physical or financial abuse, Neglect or abandonment, Treatment that has physically or mentally hurt you, or Deprivation by a caregiver of basic things or services you need so you will not suffer physically, mentally, or emotionally.
Find more information about Elder and Dependent Abuse.
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