For hearings on or after 30 September 2009, significant amendments have been made to the Protection from Harassment Act 1997 by section 17 of the Domestic Violence, Crime and Victims Act 2004.

In the first instance, this gives the court power to impose a restraining order in relation to any offence it finds proved. This may not be unhelpful to defence advocates seeking to mitigate on behalf of their client. There are occasions when the advocate can press for a lower penalty on the basis that future behaviour is controlled.

However, far more controversially, restraining orders are now available upon the acquittal of a client of a criminal offence, although not on the withdrawal or discontinuance of proceedings. The government argues that this is merely a sensible use of resources, because the order could have been made in any event in civil proceedings and the court must be satisfied at least to that standard that an order is required. The law indicates that a restraining order may be made when it is necessary to do so to protect an individual or individuals from future harassment. Any restraining order made may seek to prevent any act described in the order and may be for a defined or indefinite period. The order should be clear, precise, practical and enforceable and proportionate both in its length and terms (R v Debrath [2005] EWCA Crim 3472).

If there is a successful appeal against conviction from the Crown court, the case may be remitted to that court so that it may consider making a restraining order on that acquittal.

An appeal against a restraining order is an appeal against sentence. There are also powers for courts to vary or terminate restraining orders and the Legal Services Commission has recently confirmed that public funding is available. Breach of a restraining order is an either-way offence carrying five years’ imprisonment on indictment.

Violent offender ordersThe civil jurisdiction of the magistrates’ court has also been extended. Since 3 August 2009 the court may in its civil jurisdiction make a violent offender order under part 7 of the Criminal Justice and Immigration Act 2008. These are available against those aged 18 or over who have, at any time, been sentenced to at least 12 months’ custody or a hospital order, or been found not guilty by reason of insanity for a relevant offence. Those offences are manslaughter, solicitation to murder, sections 18 and 20 of the Offences Against the Person Act 1861, attempts or conspiracy to murder and relevant service offences.

For an order to be made, the court must find that the respondent has acted in such a way as to give reasonable cause to believe that an order is necessary.

The application is for an order containing such provisions as are necessary to protect the public from serious violent harm, whether psychical or psychological, by that offender. Orders made are between two and five years.

These proceedings are defined for legal aid purposes as criminal proceedings and so applications shall be made on forms CDS14 and CDS15.

If a person is made subject to a violent offender order they fall subject to a new notification scheme, identical to that for sex offenders. They must notify the usual details within three days, notifying all changes and re­register on a regular basis.

A breach of a violent offender order is an either-way offence carrying five years’ imprisonment on indictment.

Drinking banning ordersSince 31 August 2009 a magistrates’ court may in its civil jurisdiction be requested to make a drinking banning order under sections 1-5 of the Violent Crime Reduction Act 2006. The relevant criminal law provisions have not been brought into force. The order may be made in relation to an individual aged 16 or over who engaged in criminal or disorderly conduct while under the influence of alcohol, and such an order is necessary to protect other persons from further such conduct.

The order may contain any relevant provision and must include any necessary provision to prevent entry on licensed premises. The orders last for between two months and two years, but attendance upon an approved course may result in the cessation of the order. Breach of such an order carries a level-four fine in the magistrates’ court only. Criminal legal aid was extended to cover these provisions from 6 November 2009.

Antisocial behaviour ordersMeanwhile, there have been developments in the law in relation to anti-social behaviour orders and closure orders. It is an offence, without reasonable excuse, to breach an antisocial behaviour order. However, in R v Charles [2009] EWCA Crim 1570, the court held firm to principle and indicated that, while the defence must raise the issue of reasonable excuse by evidence, it was for the Crown then to disprove it to the full criminal standard. In seeking to prove the need for an antisocial behaviour order, evidence of later incidents was relevant to determine whether the defendant had acted in an antisocial manner and to the necessity of such an order. (Birmingham City Council v Dixon [2009] EWHC 761 (Admin)). A court considering an antisocial behaviour order on conviction should not find one necessary where suitable control for the relevant period is provided by a prison licence (R v Belaid [2008] EWCA Crim 2153) or by a supervision order (R (F) v Bolton Crown Court [2009] EWHC 240 (Admin).

The extent to which applications for closure orders may be adjourned has resulted in conflicting decisions of the courts. In R (Taylor) v Metropolitan Police Commissioner [2009] EWHC 264 (Admin), the court held that the requirements of section 55(3) of the Magistrates Courts Act 1980 for proof of service and a reasonable time for the hearing for preparation were overridden by sections 1 and 2 of the Antisocial Behaviour Act 2003. This appears to be the better decision, but is entirely contradicted by R v (Longato) v Camberwell Green Magistrates Court [2009] EWHC 691 (Admin).

It should be noted that if a closure order is made, the 21-day time limit for an appeal is absolute and may not be extended as with criminal proceedings (Hampshire Police Authority v Smithy [2009] EWHC 174 (Admin)).

Football banning ordersIn Newman v Metropolitan Police Commissioner [2009] EWHC 1642 (Admin) April 9 (20) the court, in relation to football banning orders, provided a disclosure regime in the absence of a statutory scheme. The test was one of fairness; the defence was required to raise those specific issues relevant to the defence, in particular to challenge compilation evidence before further disclosure was required.

CostsAlthough in civil proceedings costs normally follow the event, this will not necessarily apply in relation to proceedings brought by public bodies in the magistrates’ court for either antisocial behaviour orders or cash forfeiture under the Proceeds of Crime Act 2002. In Manchester City Council v Manchester Magistrates Court and Others [2009] EWHC 1866 (Admin), proceedings were withdrawn due to the progress being made by the respondents. In those circumstances, the court held that costs should not be awarded against the local authority as it acted in an honest, reasonable and sound way. A like decision affecting cash forfeiture was made in Perinpanathon v City of Westminster Magistrates Court [2009] EWHC 762 (Admin).

Anthony Edwards, TV Edwards