The Creation of a Specific Offence of Domestic Abuse - Proposed Associated Reforms to Criminal Procedure

Protection After Trial:

Mandatory Consideration by the Court of Imposition of a Non-Harassment Order Upon Conviction

What is proposed - summary

39. The court will be required to always consider whether to impose a criminal non-harassment order following an offender being convicted of domestic abuse offences.

What is proposed - further detail

40. Section 234A of the 1995 Act empowers criminal courts to make non-harassment orders ( NHOs). NHOs require offenders to refrain from specified conduct in relation to the victim. For example, the NHO could specify that the offender should not approach the victim's house and/or place of work.

41. Currently, a prosecutor is required to apply to court to consider imposing a criminal NHO following conviction. The court may make the NHO if it is satisfied on the balance of probabilities that it is appropriate to do so to protect the victim from harassment or further harassment.

42. In considering an application for a NHO, the court may, in certain circumstances, have regard to information provided by the prosecutor on previous misconduct by the offender towards the victim. The court will of course also consider the circumstances of the offence the offender has just been convicted of against the victim.

43. As noted above, there is no obligation on the court to consider making an NHO unless an application is made by a prosecutor and there is no obligation on prosecutors to make such an application. Where an application is considered by the court there is no obligation on the court to provide reasons for its decision be that whether to grant or reject the application.

44. We propose to strengthen the use of NHOs by requiring the court to consider whether an NHO is appropriate in every case where an offender is convicted of the new domestic abuse offence or an offence with the domestic abuse aggravation. This would remove the need for an application by the prosecutor in those cases and would ensure the protection needs of victims are always directly considered by the court.

45. The intention is that the court will be able to seek information about the offender, and in certain circumstances, the offender's criminal record, from the prosecutor as part of the court's consideration of the merits of making an NHO. We propose that the court should provide reasons for its decision to make or refuse to make an NHO.

Benefit of what is proposed

46. Requiring a court to always consider imposing a criminal NHO in all cases where an offender has been convicted of domestic abuse offences will strengthen the operation of NHOs, enhancing protection for victims and reduce the administrative burden on prosecutors.