Restraining orders can either be made for a set length of time or ‘until further order’. In the former case, the expiry date of the order will be clearly stated. In the latter, however, such an order effectively becomes an indefinite order.
This raises a number of practical issues – is it legitimate to expect a person to be subject to an interference with their liberty indefinitely? Is it proportionate? Can a Defendant be expected to remember the existence and/or the terms of an order 15 – 20 years after a restraining order has been made and be held accountable for any breach, to the extent that this Defendant risks committing a criminal offence for behaviour which would otherwise be lawful behaviour but for the order itself? What about separated parents? How does access to legal advice and representation impact a person mentioned in a restraining order?
Applying to discharge a restraining order
In principle, it is rather straightforward. Any person mentioned in an order may apply to vary or discharge the order, pursuant to s5(4) PHA. In the words of Blackstone’s Criminal Practice 2019 at E21.34, ‘the issue is whether circumstances have changed so that the restraining order is no longer necessary or appropriate’.
An application must be made in writing, to the Court where the restraining order was made. There is no requirement that the persons mentioned in the order be served with the application unless so directed by the Court (CrimPR r31.5(2)(b)(iii)). Paradoxically, s5(4A) PHA states that ‘any person mentioned in the order is entitled to be heard on the hearing of an application’ to vary or discharge it. It is submitted that this does not impose a positive obligation to put the persons mentioned in the order on notice of the application, and merely provides them with a right to make representations should such notice have been given. Nevertheless, it would appear fair and proportionate to allow notice to be given should the CPS and/or the police have omitted to attempt to do so, and adjourn a hearing to enable such notice to be given and a person mentioned in the order to exercise their entitlement to be heard should they choose to do so. It is submitted that, in the alternative, any claim to such entitlement can be disapplied where it is impossible or impractical to give notice, whether formal or informal notice.
The issue may arise, most likely, where an order was made ‘until further order’, and the current whereabouts of persons mentioned in the order have become unknown, through passage of time. I recently represented a client who sought to discharge a restraining order made 16 years ago. The Complainant’s whereabouts were unknown and the (once) Defendant simply sought to have a clean slate with no further restriction on his liberty, regardless of whether or not the restriction caused any inconvenience, for his own peace of mind and for certainty and by extension his own protection from an unjustified interference with his liberty. One must not be subject to an injunctive order merely because it is easier and convenient not to discharge it.
Another issue may arise where a Defendant and a Complainant protected by a restraining order have family ties.
The reality is that, even where there is a change in circumstances, these arise once lawyers have ceased to act for a Defendant and other persons mentioned in the order are not in benefit of legal advice or representation. Many will simply choose to ignore the existence of the order and assure one another that no report will be made to the police. Does that prevent committing a criminal offence by breaching the order? No. A ‘reasonable excuse’ defence may be available in certain circumstances, though the onerous burden of raising this defence would placed on the Defendant who committed the breach. It is therefore essential that the order be discharged by the court before any communication is resumed.