Ancillary Orders Consultation

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

May be made by

A magistrates' court or the Crown Court

Relevant legislation

Sentencing Code, s.360

Availability

On sentence for any offence, a court may make a restraining order in addition to dealing with the offender for the offence.

Nature of the order

A restraining order may be made for the purpose of protecting the victim(s) of the offence (or any other person mentioned in the order) from future conduct by the offender which amounts to harassment or will cause a fear of violence.

The order prohibits the offender from doing anything described in the order.

“Conduct” includes speech, and “harassment” includes alarming the person or causing them distress.

Notice

There is no requirement for notice of the application to be given, but the offender must be given an opportunity to consider:

• what order is proposed and why, and
• any evidence in support of the application

(Criminal Procedure Rule 31.2)

Deciding whether to make a restraining order on conviction

The court must be satisfied that making the order is necessary for the purpose of protecting the person(s) from the relevant conduct. This requires an evidence-based conclusion to be reached that it is at least likely that the offender will engage in such conduct in the future.

The order cannot be made merely to assuage the consequences of past conduct. However, this does not mean that that the consequences for the person to be protected of the past conduct, and the likely consequences of any future conduct, are irrelevant. The degree of harassment involved in the past conduct and/or the level of fear and distress it has caused are relevant when determining whether to make a restraining order and the terms of any order.

Further evidence (in addition to that which relates to the offence of which the offender has been convicted ) may be led by the prosecution and/or the offender, provided that it would be admissible in civil proceedings for an injunction under s.3 of the Protection of Harassment Act 1997 (Sentencing Act 2020, s.362). Hearsay evidence may be received.

Taking into account the views of the person(s) to be protected

In normal circumstances before an application for restraining order is considered by the court, sufficient enquiries should be made to obtain the views of the person to be protected as to whether they wish the order to be made and if so as to its terms.

These views should be taken into account by the court when deciding whether to make the order (and if so its terms). 

There is no requirement for the court to receive direct evidence of the views of the person to be protected. In appropriate cases, the court may be able to draw a proper inference as to the views of the person. 

There may be cases where the order will be appropriate even though the person to be protected does not seek it. However, such an order may be impractical if the person to be protected does not want the order to be made because they want to have contact with the offender (see also Offences in a domestic context below). 

Content of a restraining order

General considerations

A restraining order may only include prohibitions. There is no power to include requirements or to make any prohibition subject to electronic monitoring.

The prohibitions in the order must be:

• necessary to protect the person(s) to be protected from future conduct which either amounts to harassment of that person or will cause them to fear violence
• proportionate to that purpose, and
• clear and precise so that there is no doubt what the offender is prohibited from doing

A restraining order must not conflict with an order of the family court or make such an order unworkable or  impractical

Identifying the person(s) to be protected

Generally, a restraining order should name the person (or a defined group of people) to be protected. The order cannot be made for the protection of the world at large or for excessively wide groups of people (such as “any child under 16”). The person to be protected can be a corporate body or the unnamed employees of a corporate body. 

Offences in a domestic context

Where the making of a restraining order might interfere with otherwise appropriate contact between a parent and a child, sufficient enquiries should be made about the practicalities of the order and particular care should be taken to ensure that the order does not make it impossible for contact to take place.

In cases where the court has determined that it is necessary to make a restraining order despite a view expressed by an adult person to be protected that they do not wish the order to be made, the prohibitions in the order cannot operate to prevent the relationship between the person to be protected and the offender from continuing (including by living together). Persons at a serious risk of harm from an offender have the right to continue a relationship with that person and to live with them if they choose. 

In this situation, the restraining order may include terms which prohibit conduct such as:

• molesting the person to be protected
• going to a particular place away from the home (in order for the person to be protected to have a safe space to go should they wish to be away from the offender)
• contacting the person to be protected for a specified period (e.g. 14 days) if the person to be protected has asked for a break

Geographical exclusion

• A restraining order should not prohibit the offender from going to a place such as the home or workplace of the person to be protected without specifying the address in the order or any other circumstances in which the offender might become aware of a new address
• A geographical exclusion can be for a wider area than a particular address (or road where that address is located) if it is necessary in the particular circumstances of the case.    Exclusion from a town might be necessary, even if the offender had lived there before being sent to custody for the offence 
• The term of the order prohibiting entry into a geographical area must be clearly expressed and accompanied either by a map or by a clear written description of the prohibited area.  

A restraining order can start on the day on which it is made or any subsequent day. The date of its commencement must be specified clearly in the order to avoid uncertainty and difficulties of enforcement.

Where an offender has been sentenced to custody for the offence, a restraining order should start from the date of sentence and not from the date of release of the offender from custody. 

The order may have effect for a specified period or until further order. 

The court should make the order for no longer than is necessary for the purpose of protecting the protected person(s) from future conduct by the offender which either amounts to harassment of the protected person(s) or will cause them to fear violence.

It is an offence for the offender, without reasonable excuse, to do anything that they are prohibited from doing by a restraining order.

Breach of a restraining order is a criminal offence, maximum penalty five years’ custody.

Breach of a protective order (restraining and non-molestation orders)