A brief summary: update to Domestic Violence Crime & Victims Act (2004)
Domestic Violence, Crime and Victims Act: section
12 enacted September 2009
The provision in section 12 now
allows the courts to impose restraining orders in a much wider
range of circumstances. Since 30 September 09 when sentencing for
any offence the court is 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'. This includes on
acquittal of offence. However for an order to be imposed on
acquittal the course of conduct proved must amount to harassment
i.e. there is no power to protect a person from fear of violence
that falls short of harassment. This 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.
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 (which the victim is still entailed to do), 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. It is of course open to the victim to seek
a non-molestation order or injunction against harassment from a
civil court. If a case 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.
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. 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
Other issues for consideration
are:
The use of such orders can rely on
'soft' evidence similar to that presented in the application for
ASBOs. This includes hearsay, previous history of the perpetrators
and the Victim Personal Statement. All this evidence must be
available to the prosecutor in the initial stages. It may be
helpful for the victim to give another Victim Personal Statement
before an application in order to gain a better understanding of
what has happened since the restraining order was granted.
People other than the perpetrator
can also be named in the order.
Victims can alter order if there
are changes to circumstances (e.g. moving house) and be entitled to
legal aid for this.
The CPS has reported that there
have already been successful use of such orders on acquittal.
Detailed
CPS guidance can be found here.
