What Happens When A Non-Molestation, Or Injunction Order Is Breached?
Posted on 26th May 2020
Those who have practised Family Law for over 13 years will recall that a breach of a Non-Molestation Order used to be dealt with in the Family Court which made the original Order. Monday mornings were dreaded as a telephone call from the Court before 9.30am meant only one thing - someone had been arrested for breaking an injunction. Forget your 'to do' list, drop everything, ring your Client and get them to Court and then try to find a barrister in the waiting room who was able to assist at short notice. Then take detailed notes of your Client's version of what happened during the inevitable lengthy wait for the respondent to be delivered - usually in the vehicle that had just dropped off everyone else from the cells at the criminal courts.
Breach of non molestation order:
With the introduction of Section 1 of the Domestic Violence Crime and Victims Act 2004 on 1st July 2007, the Family Law Act 1996 was amended and a new section 42A inserted which made it a criminal offence to breach a Non-Molestation Order in addition to it being a breach of a Family Court Order and therefore contempt. For a full explanation of a Non-Molestation Order, read this here. Any respondent who had allegedly broken the terms of the Order would be taken to the local Magistrates Court rather than the Family Court. For the purpose of this blog the person who has breached will be referred to as the respondent throughout although he or she would be known as the defendant once the matter reached the criminal court.
Unless the respondent admitted the breach, the process of evidence gathering would continue and the matter listed for trial. As breaking an injunction is an offence that is triable either way the trial could take place in the Magistrates' Court or the Crown Court. The person who applied for the injunction in the first place will need to be prepared to attend Court to give evidence and be cross-examined but it is not unusual for the respondent to wish to change plea from not guilty to guilty at the 11th hour. The applicant on the injunction will be kept in a room separate to the respondent and should be under the watch of Victim Support.
If the respondent is found not guilty the criminal proceedings will end but the Non-Molestation Order will continue until its expiry date.
If the respondent is found guilty, as in all criminal cases, the Judge or Magistrates will then need to decide on what sentence should be handed down.
As from 1st October 2018 the punishment for breach of a non molestation order ranges from a fine to a maximum sentence of 5 years' imprisonment. The Council states that when deciding on which category the offence falls into, the Court should consider the intention and motivation of the respondent when breaching of a non molestation order ie 'culpability' and the level of harm.
Culpability has three levels:- A) the breach is serious or the respondent breaches repeatedly; B) deliberate breach falling somewhere between very serious and minor breach and C) minor breach or a breach which falls just short of being reasonable excuse.
When determining level of harm, the Court will consider all the circumstances of the case and decide the extent of the harm caused or which the respondent intended to be caused. Even if a breach itself is relatively minor, if the victim has suffered from domestic abuse over a period of time then even the slightest breach can cause significant harm, and this must be taken into account upon sentencing. Harm falls into three categories :- Category 1 is where the breach causes very serious harm or distress; Category 2 is for cases which fall between the higher and lower level; and Category 3 is where the breach causes little or no harm or distress.
After taking the above into account the Court will determine sentence but will then consider whether there should be any reduction where the respondent (i) assisted the prosecution and/or; (ii) pled guilty before the first hearing and/or; (iii) is being sentenced for more than one offence or is already serving a sentence and/or; has already spent time on bail (tagged curfew).
The Court can also make a Restraining Order to further protect the holder of the Non-Molestation Order.
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