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Breach of non-molestation orders 02.07.07


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Since the 1st of July 2007 the provisions of section 1 of the Domestic Violence, Crime and Victims Act 2004 have made it a criminal offence to breach a non-molestation order without a reasonable excuse for doing so.  Prior to this, where an order had been issued without a power of arrest and was subsequently breached, the applicant would have to return to court to seek a warrant for the respondent’s arrest


 

Because breach of a non-molestation order is now an arrestable criminal offence it is no longer necessary for courts to attach a power of arrest to non-molestation orders. Orders now clearly state that breach is a criminal offence punishable with up to 5 years imprisonment or as a contempt of court.

 

What are the options if a non-molestation order is breached?

This change in the law has made two options open to the applicant when a non-molestation order is breached. 

  1. The applicant can call the police who will deal with the breach as a criminal offence. 
  2. Alternatively the applicant can still choose to return to the civil court that made the non-molestation order for the breach  to be dealt with as a contempt of court.

Clearly in many cases calling the police immediately will be the right thing to do in order to ensure the safety of the applicant and perhaps any children.

 

What happens if the police are called?

If the police are called and they have reasonable grounds for believing that there has been a breach of the non-molestation order they can arrest.  Once the police have taken witness statements they will pass these to the Crown Prosecution Service which will review the evidence and prosecute if proceedings would be in the public interest.

When deciding whether or not to prosecute the breach as a criminal offence the Crown Prosecution Service will take into account the consequences for the applicant and any view expressed by the applicant or the applicant’s family.

Where is the breach of non-molestation order tried?

A charge of breaching a non-molestation order can be tried in either a Magistrates’ Court or the Crown Court depending upon the seriousness of a particular case. Offenders can be punished with up to 5 years imprisonment or a fine or both.

The Crown Prosecution Service will not be able to prosecute if the breach of the order has already been dealt with as contempt by a civil court.  However if the Crown Prosecution Service decides not to prosecute or if the offender is prosecuted but found not guilty, the applicant can still ask a civil court to deal with the breach as a contempt of court.

If the applicant decides to ask a civil court to deal with a breach of a non-molestation order, the court can if needs be issue a warrant for the person’s arrest.  If the civil court it is satisfied that the order has been breached it can sentence the person breaching the order to up to 2 years imprisonment or fine them.

 

How does this change in law affect the applicant?

This change in the law has placed the applicant very much at the heart of the process. They have a choice. They can deal with the matter themselves, usually through their solicitor, or they can call in the police. Not everyone will want to involve the police – a criminal prosecution may not be their desired outcome or they may simply feel more comfortable in a civil court where they feel more empowered in taking action themselves. On the other hand, if the police are called they can intervene straight away and enforce the order.     

 View an additional article on this subject you may find useful. (PDF)