Since the correct application of a restraining order can be a significant part in managing the risks to a victim and in preventing further harassment, the investigating officer should provide information about possible conditions for an order as soon as possible. Prosecutors should also ensure, as part of reviewing the case, that a victim’s view on a restraining order is sought from the outset.
Restraining orders should be drafted to meet the particular risks presented in each case and should not be a repetition of routine clauses. One issue to be addressed is whether or not it is safe to include the victim’s address on the order. Suggested conditions include:
- not (either alone or by means of agents) to directly or indirectly contact, harass, alarm, or distress the victim and others as appropriate;
- not to knowingly approach within the boundary of (specify street or road names and attach a copy of an annotated map to clarify parameters) any premises where the victim and others as appropriate reside, work or frequent;
- not to telephone, fax, communicate by letter, text, electronic mail or internet with the victim and others as appropriate, or to send or solicit any correspondence whatsoever;
- not to display any material relating to the victim on social networking sites including YouTube, Facebook and Twitter;
- not to retain, record or research by any means, private, confidential or personal facts, or information relating to the victim and others as appropriate; or
- not to use a different name or to change names without immediately notifying the court and/or the police.
In particular, it is essential that the order is checked for accuracy – both in terms of content and spelling. Where the drafting of the order is incorrect, we may not be able to deal with breaches appropriately.
The purpose of the order is to protect the victim (or other named person) from any future harassment or fear of violence, rather than to punish the defendant. The order can be granted for a specified or indeterminate period of time, therefore, leaving the onus on the defendant to satisfy the court that they no longer present a risk to the victim. When preparing an order, consideration should be given to specifying the period of time that it should remain in force.
The restraining order is imposed at the time of sentence. It is imperative that we are supplied with relevant information such as a Victim Personal Statement or MG6 form by the police in good time for the sentencing hearing.
Useful items to include within this information:
- history of the relationship, particularly if there has been violence in the past;
- previous convictions for a similar type of behaviour;
- victim’s injuries, including psychiatric injury;
- if and how the offender planned the harassment;
- effect on any third party (spouse, partner, family, neighbours, work colleagues);
- any civil orders made including non-molestation orders or injunctions;
- likelihood of the offender offending again;
- status of the victim’s current relationship with the offender; and
- the victim’s views on his or her own and the safety of others if a restraining order is or is not made.
It is important that the terms of orders are clear, but not so prescriptive as to allow alternative forms of harassment. Geographical limitations, such as staying 300 metres away from the victim, should be suggested with care. Difficulties could arise in proving distances should there be a breach, and harassment may be possible, for example, from 301 metres.
Restraining orders should also be considered where the defendant receives a custodial penalty, as it is possible to harass or cause fear of violence from prison through the use of telephones, letters or third parties. The prison can be informed of the existence of an order by the police. The order can and sometimes should exceed the custodial period.
A defendant may seek to make repeated applications for variation of the restraining order so as to continue harassing the victim. In such cases, we should remind the court of its powers to control abuse of its process. Victims should be informed of applications to vary, and asked to express their views and to attend if necessary. Further information about restraining orders and the prosecution of breach of the orders (as well as variation) can be found in Restraining Orders , elsewhere in the Legal Guidance.