What is a breach of a non-molestation order?
Following alleged instances of domestic violence, a victim may decide to apply for a non-molestation order against the person they deem to be responsible for the abuse.
Non-molestation orders are put in place to prevent anyone accused of domestic abuse from carrying out certain behaviours. A breach of a non-molestation order could have serious implications, highlighting how important it is that you understand exactly what steps to take if you find yourself subject to an order.
Here, we discuss what non-molestations are, when they may be put in place, what a breach of a non-molestation order may involve and what the potential sentences of breaching a non-molestation order may be.
What is a non-molestation order?
Non-molestation orders are made to help protect victims of domestic abuse. When in place, the order prevents an alleged abuser from being violent, threatening, or otherwise abusive to an alleged victim.
In some cases, an order can also prevent an alleged abuser from coming within a certain distance of an alleged victim or include protections for the alleged victim’s children.
Orders will also prevent an alleged abuser from instructing another person from carrying out any of the prohibited actions laid out in the order.
When is a non-molestation order put in place?
Anyone can apply for a non-molestation order if they believe that they are the victim of domestic abuse. To apply for an order, the applicant must be able to demonstrate that they are associated with the alleged abuser, meaning they live with them (or have lived with them), are currently in (or have been in) a relationship, or are relatives.
Applications can be made without notice, meaning an alleged abuser may not be made aware of an application until after the order has been granted.
To obtain a non-molestation order, the court need to be satisfied that, on the balance of probabilities and evidence that has been submitted, the abusive behaviour did take place.
At an initial hearing where an applicant makes the request to the court to grant the order, the court will make an initial determination based on the facts presented.
Within 14 days of a ‘without notice’ application being submitted, the court will list the matter for a return hearing, which is where an alleged abuser will be able to respond to the application.
Is there a difference between a non-molestation order and a restraining order?
The main difference between non-molestation orders and restraining orders is the way in which they are implemented.
While non-molestation orders are applied for by the person claiming to need protection, and are approved by a family court, restraining orders are handed down by a judge in a criminal court.
Restraining orders can be made at the start of criminal proceedings, or during the conclusion of a trial.
Once they are in place, non-molestation orders and restraining orders have largely the same effect.
Is a non-molestation order a criminal record?
If you are subject to a non-molestation order, this will not amount to a criminal record. However, if you are in breach of a non-molestation order, you could receive a caution or conviction - this would then result in a criminal record.
What happens if a non-molestation order is breached?
If a breach of a non-molestation order is reported, and the police are notified, the ‘respondent’ (the person the order applies to) could be arrested. This is if the police suspect that a breach has indeed taken place, the respondent will be arrested or summoned to the Magistrates’ Court to answer the charge of breaching the order.
What are the breach of non-molestation order sentencing guidelines?
Breach of non-molestation order legislation is harsh. If you are found to be guilty of breaching a non-molestation order, the maximum sentence you could face is a five-year custodial sentence.
If the case is heard in the Magistrates Court, the maximum sentence is instead 12 months’ imprisonment.
Generally, the sentencing range for breaching a non-molestation order is a fine or four years’ custody.
As per Sentencing Council, the court will determine the relevant sentence based on the culpability and harm that is deemed to have been caused.
Culpability refers to the intention and motivation of the alleged breach of the non-molestation order. It is divided into three categories:
- A – Very serious and/or persistent breach
- B – Deliberate breach falling between A and C
- C – Minor breach and breach just short of reasonable excuse
The harm caused or was intended to be caused is also divided into three categories:
- Category 1 – Breach causes very serious harm or distress
- Category 2 – Cases falling between categories 1 and 3
- Category 3 – Breach causes little or no harm or distress
Are there any aggravating or mitigating factors for breaching a non-molestation order?
The sentence for a breach of a non-molestation order may also be determined by the presence of any aggravating or mitigating factors.
Aggravating factors which could increase the sentence for a breach of a non-molestation order include:
- Statutory aggravating factors
- Previous convictions that have regard to the nature of the offence and the time that has elapsed since the conviction
- Offence committed while on bail
- Breach was committed shortly after the order was made
- History of disobedience to orders
- Further offence committed during breach
- Impact on children or family members
- Impact on any vulnerable individual
- Steps taken to prevent alleged victim from reporting incident
- Using contact arrangements with child to instigate offence
Mitigating factors which could decrease the severity of a sentence for breaching a non-molestation order include:
- Breach committed after long period of compliance
- Prompt voluntary surrender or admission of breach
- Age and/or lack of maturity
- Mental disorder or learning disability
- Sole or primary career for dependent relatives
How do you report a breach of a non-molestation order?
If someone believes that a respondent has breached the terms of a non-molestation order, they may be able to enforce it by either starting criminal proceedings by making a report to the police, or starting civil proceedings by applying to the court that made the order.
Should I speak to a solicitor if I’m accused of breaching a non-molestation order?
In short, yes, you should speak to a solicitor when accused of breaching a non-molestation order. As we have discussed, the consequences of breaching a non-molestation order can be severe, which highlights the importance of prompt legal advice and representation.
Where you are facing an accusation of breaching a non-molestation order, our expert domestic abuse defence solicitors will be available to provide comprehensive support. With our support, you will stand the best chance of avoiding charges, or receiving reduced charges where conviction is unavoidable.
At JD Spicer, our team have substantial experience in this area and are well versed on the best approach to take depending on your circumstances.
Contact our domestic violence defence lawyers today
For a free initial consultation, urgent specialist advice, immediate representation, or to speak to us confidentially about allegations of breaching a non-molestation order, please do not hesitate to get in touch.
You can contact our dedicated domestic violence solicitors in London, Birmingham, and Manchester by telephone on:
- Brent & Camden London Office: 0207 624 7771
- Manchester Office: 0161 835 1638
- Birmingham Office: 0121 614 3333
- City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)
Or email: solicitors@jdspicer.co.uk
Alternatively, you can fill out our quick online enquiry form, and we will get back to you as soon as possible.
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Please get in touch for a free initial consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice on dealing with allegations relating to breaching a non-molestation order.
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