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Family and Civil Orders Protocol

A Guide for Criminal and Civil

Proceedings (Amendment February 2016)

Working in partnership with:

Sussex Police Her Majesty’s Courts and Tribunals Service Family Justice Council Crown Prosecution Service National Centre for Domestic Violence

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Family and Civil Orders Protocol Amendment (February 2016)

Foreword

This document is a review of the current protocol agreed in 2009 with Sussex Police and our partnership working with Her Majesty’s Court and Tribunal Service, Family Justice Council and CPS.

The purpose of the review is to bring the protocol up to date with our current operating systems which will ensure that the relevant information in respect of civil orders issued by the courts is easily accessible to police and CPS.

The overarching principle to this protocol remains the protection of vulnerable people and working in partnership to reduce risk and provide a better service to victims and successfully bring offenders to justice.

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Introduction

The aim of this agreement and guidance is to ensure that those who are entitled to the protection of the orders made, which includes many victims of domestic abuse and vulnerable children, are fully supported through positive action and that those who have breached the orders are held accountable for their actions and brought to justice. For the aim of this agreement to be achieved, it requires close collaboration between the family and civil courts, solicitors, the police, the Crown Prosecution Service and the criminal courts. The Sentencing Guidelines Council has published two definitive guidelines in relation to domestic abuse and breaches of restraining or non-molestation orders entitled “Overarching Principles: Domestic Violence” and “Breach of a Protective Order.” It has also published the “Magistrates Court Sentencing Guidelines” where the relevant issues are dealt with at page 83.These are relevant and should be familiar to all judges, magistrates, practitioners, police officers and Crown Prosecutors who deal with breaches of relevant orders whether in the family or criminal jurisdiction.

Executive Summary

Under the protocol, Sussex Police will be served with additional information not previously available to them to enable better informed decisions to be made in relation to the charging and prosecution of offenders who are alleged to have breached relevant orders. It also sets out the appropriate course of action where a breach of a civil order occurs. Under existing arrangements, the order and statement of service is served upon the police. The protocol will ensure that in addition to the existing documents, copies of the application form and statement (or affidavit) in support of the application setting out the grounds upon which the application is made are also served upon them, The court papers will be served by the court and the applicants solicitor by emailing [email protected] this replaces the previous use of fax. The protocol does not replace the existing rules regarding service. PNC Update will input new details of the order onto the Police National Computer. If an officer is called to an incident, PNC and Niche checks will be carried out. If a breach of an order has occurred the protocol sets out clearly what action should be taken. If an offender is to be charged with a criminal offence, Sussex Police will be in a position to provide additional evidence to the Crown Prosecution Service, i.e. details of alleged breach of the civil order leading to the arrest, along with the civil court papers providing a background and/or history of incidents leading to the original grant of the order. The prosecutor having access to this additional information is then able to make an informed decision at the charging stage in accordance with the code for Crown Prosecutors.

Contents

mailto:[email protected]

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Foreword ……………………………………………………………………………………………1 Introduction………………………………………………………………………………………….. 2 Executive Summary ……………………………………………………………………………….. 2 1. Types of Order 1.1 Non-Molestation Orders – Part IV Family Law Act 1996 …………………………………. 4 1.2 Occupation Orders – Part IV Family Law Act 1996 ……………………………………….. 5 1.3 Forced Marriage Protection Order – Part IVA Family Law Act 1996 ……………………. 6 1.4 Exclusion Order - Children Act 1989 …………………………………………………………6 1.5 Harassment - Protection from Harassment Act 1997 ………………………………………7 1.6 Domestic Violence Protection Notices and Orders …………………………………………8 2. Responsibilities 2.1 Applicants Solicitor …………………………………………………………………………… 8 2.2 Process Server ……………………………………………………………………………….. 9 2.3 Family or Civil Court ………………………………………………………………………….. 9 2.4 PNC Update …………………………………………………………………………………… 9 2.5 Business Support Unit ……………………………………………………………………......10 2.6 Front Office…………………….. ……………………………………………………………..10 2.7 Help Desk……. ………………………………………………………………………………...10 2.8 SIU…………………………………………………………………………………………….....11 2.9 The Custody Officer……………………………………………………………………………11 2.10 The Arresting Officer in the Case …………………………………………………………..12

(a) Non-Molestation Orders ………………………………………………………………12 (b) Occupation Orders …………………………………………………………………….12 (c) Exclusion orders with a power of arrest …………………………………………… 12 (d) Forced Marriage Protection Order …………………………………………………. 13 (e) Civil Harassment Injunction ………………………………………………………….13

2.11 Crown Prosecution Service (CPS) …………………………………………………………13 3. Legal Aid ……………………………………………………………………………………….. 14 4. Information Sharing ……………………………………………………………………………15 5. Frequently Asked Questions ………………………………………………………………...15 Appendix A – Family and Civil Orders Process ………………………………………………. 18 Appendix B – Family and Civil Orders Process - Sussex Police …………………………… 19 Appendix C – National Centre for Domestic Violence (NCDV) Process……………………. 20 Appendix D – Sussex Police Anti Victimisation Units ………………………………………... 21 Appendix E – Sussex Courts ………………………………………………………………….... 22 Appendix F – Urgent Court Business ………………………………………………………….. 24 Appendix G – Hybrid Section 9 Statement / Affidavit ………………………………………… 25

1. Types of Order 1.1 Non-Molestation Orders – Part IV Family Law Act 1996

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Issued under S.42 (2) or S 45(1) (ex parte applications) Family Law Act 1996 by the family courts. Non-molestation orders are made to prevent a person from using or threatening to use, physical violence or to prevent a person from harassing, pestering or intimidating someone. On the 1st July 2007, section 1 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA) came into force. Section 1 DVCVA 2004 inserts a new section 42A into Part IV of the Family Law Act 1996 making the breach of a non-molestation order a criminal offence. It is no longer possible to attach a power of arrest to a non-molestation injunction order under section 42A and section 47 FLA 1996 Section 42A of the FLA 1996 gives a complainant the choice of the mechanism by which a breach of a non-molestation order is dealt with. The complainant can report it to the police to have it dealt with within the criminal jurisdiction as a criminal offence, or they can make an application to the family court in which the order was made to have the person dealt with by way of committal for contempt of court. The two jurisdictions cannot run in parallel to enforce a breach of a non-molestation order. If a report is made to Sussex Police in accordance with Force Policy 516/2013 – Domestic Abuse, the breach will be investigated positively and pursued through the criminal courts in consultation with the Crown Prosecution Service who will ultimately make the decision to charge where appropriate. An offence is committed where a person: is subject to a non-molestation order AND does anything prohibited by the non-molestation order AND does not have a reasonable excuse. If the order was granted at an ex parte hearing, then the offence will only be committed if the person was aware of the existence of the order at the time he/she breached the order. The breach of a non-molestation order carries a power of arrest under S.24 Police and Criminal Evidence Act 1984 as amended by the Serious Organised Crime and Police Act 2005. A breach of the order is a criminal offence and CPS authority is required to charge as with all domestic abuse offences. Penalties In criminal proceedings this offence is triable either way with a maximum penalty on indictment of five years imprisonment or on a summary conviction 6 months imprisonment or a fine. The penalties in civil contempt proceedings in the County Court are a maximum of 2 years imprisonment or a fine and in the Magistrates Court the maximum is two months imprisonment or a fine. The offence is a national recordable offence. This is an offence that must be recorded as a conviction on the police national computer (PNC). Procedural steps/requirements in respect of alleged breach of order Crime report required – Breach of non-molestation order HO Code 066/39. Descriptive/Fingerprints/DNA required. Breach of non-molestation order should be investigated as any other crime: Interview required/review by Case Director Points to prove:

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- Existence of order including when it was made. - In the case of it being made ex parte, that the defendant was aware of its existence

i.e. by having an affidavit of service (NB also means that where it can be shown that a defendant was aware of its existence but had evaded service or has made no effort to ascertain its terms, he/she may still commit a criminal offence by breaching its terms.)

- The terms of the order. - That the defendant is the person named in the order. - That the order was in force at the time of the alleged breach. - That the acts complained of amount to a breach.

1.2 Occupation Orders – Part IV Family Law Act 1996 Issued under S.33 to 40 of the FLA 1996 by the family courts. An occupation order is used where the future occupation of a property is in dispute. One person could effectively be required to leave the home because of his/her violent behaviour towards the other or the effect that his/her presence is having on the children. An order is only enforceable once it has been effectively served upon the named party. Occupation orders can be issued with or without a power of arrest. Penalty Breach of an occupation order with a power of arrest is not a criminal offence and therefore the offenders should be taken before the Family Court within 24 hours of arrest. The penalties in civil contempt proceedings in the County Court are a maximum of 2 years imprisonment or a fine and in the Magistrates Court the maximum is two months imprisonment or a fine. Procedural steps/requirements in respect of alleged breach of order NO POWER OF ARREST. Complainant should be advised to inform his/her solicitor of the breach, who will make further applications to the family and civil court as appropriate for a warrant of arrest. WITH A POWER OF ARREST Offender should be arrested by police if in breach and placed before the Family Court within 24 hours. The Applicant’s solicitor should be notified of the breach. The arresting officer should prepare a statement of evidence setting out the circumstances of the arrest. Breach of an occupation order is not a criminal offence and offenders should be taken before the family and civil court at the earliest opportunity, within 24 hours.

1.3 Forced Marriage Protection Order – Part IVA Family Law Act 1996 Issued under Part 4A, section 63 of the Family Law Act 1996 which is inserted by the Forced Marriage Civil Protection Act 2007 with effect from the 25th November 2008. Applications for an order under the act may only be made in the High Court or a specified County Court. Under the act the Family Court will be able to make a forced marriage protection order. Each order will contain terms that are designed to protect the victim in their particular circumstances. Forced marriage protection orders may be made to prevent a forced marriage occurring; to stop intimidation and violence; to reveal the whereabouts of a person; to stop somebody being taken abroad; to hand over passports etc.

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The court may attach a power of arrest to any order made. A police officer may arrest without warrant a person whom they have reasonable cause for suspecting to be in breach of any such provision or otherwise in contempt of court in relation to the order. The court will deal with the person under its powers of contempt of court. Penalty Breach of a forced marriage civil protection order with a power of arrest is not a criminal offence and therefore the offenders should be taken before the originating family court or a specified Forced Marriage Court within 24 hours of arrest. In exceptional circumstances a County Court with family jurisdiction may deal with the enforcement hearing. The penalties in the civil contempt proceedings in the County Court are a maximum of 2 years imprisonment or a fine. Family and Civil Orders Protocol (August 2009) 8

Procedural steps/requirements in respect of alleged breach of order NO POWER OF ARREST. Complainant should be advised to inform his/her solicitor of the breach who will make further applications to the family court as appropriate for a warrant of arrest. WITH A POWER OF ARREST Offender should be arrested by police if in breach and placed before the issuing court within 24 hours. The applicant’s solicitor should be notified of the breach. The arresting officer should prepare a statement of evidence setting out circumstances of the arrest. Breach of a forced marriage protection order is not a criminal offence and offenders should be taken before the appropriate family court at the earliest opportunity, within 24 hours. 1.4 Exclusion Order - Children Act 1989 Issued under section 38A (5) and section 44(5) of the Children Act 1989 by the family courts. Where a court makes an emergency protection order or an interim care order, the court may include an exclusion requirement in the order for the exclusion of a person from a dwelling house in which a child lives if the exclusion of that person will prevent the child from suffering or being likely to suffer significant harm and another person living in the dwelling house is able to care for the child and consents to the exclusion requirement. The exclusion requirement may require a person to leave the house where he/she is living with the child, may prevent him/her from entering the house and/or may exclude him/her from a defined area specified by the order. The Court may attach a power of arrest to an exclusion requirement by virtue of subsection (5). A constable may arrest without a warrant any person he/she has reasonable cause to believe to be in breach of the terms of the order. Penalty Breach of an exclusion requirement order with a power of arrest is not a criminal offence and therefore the offenders should be taken before the relevant family court within 24 hours of arrest. The penalties in the civil contempt proceedings in the County Court are a maximum of 2 years imprisonment or a fine and in the Magistrates Court the maximum is two months imprisonment or a fine. Procedural steps/requirements in respect of alleged breach of order NO POWER OF ARREST.

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Complainant should be advised to inform his/her solicitor of the breach who will make further applications to the family and civil court as appropriate for a warrant of arrest. WITH A POWER OF ARREST Offender should be arrested if in breach and placed before the family court within 24 hours. The local authority’s solicitor should be notified of the breach who should then inform the other parties and their solicitors of the position. The arresting police officer should prepare a statement of evidence setting out circumstances of the arrest. Breach of an exclusion requirement order is not a criminal offence

1.5 Harassment - Protection from Harassment Act 1997 Issued under the Protection from Harassment Act 1997 by the civil courts. An injunction issued under S3(6) and (9) of the Protection from Harassment Act is made to prohibit a person from pursuing a course of conduct, that amounts to harassment of another, and which he/she knows or ought to know amounts to the harassment of the other(s). To prohibit a person from pursuing a course of conduct by which he/she intends to persuade any person (i) not to do something he/she is entitled to do or (ii) to do something that he/she is not under any obligation to do. S3 (6) and (9) of the Protection from Harassment Act 1997 makes the breach of this order a criminal offence. Restraining orders made under the PHA 1997 can be made by civil and criminal courts. A breach of a restraining order, whether made by a civil or a criminal court, is a criminal offence. A person cannot be convicted of a criminal offence under subsection (6) in respect of any conduct, which has been punished as a contempt of court. Service is required. The offence will only be committed if the person was aware of the existence of the order at the time he/she breached the order.

District Judges do not have jurisdiction to make orders committing a person to prison for a breach of a Protection from Harassment Act 1997 Injunction. There is a power of arrest under S.24 Police and Criminal Evidence Act 1984 as amended by the Serious Organised Crime and Police Act 2005. A breach of the order is a criminal offence and CPS authority is required to charge as with all domestic abuse offences. Penalties This offence is triable either way with a maximum penalty on indictment of five years imprisonment, or on a summary conviction 6 months imprisonment or a fine. The penalties in the civil contempt proceedings in the County Court are a maximum of 2 years imprisonment or a fine and in Magistrates Court the maximum is two months imprisonment. The offence is a national recordable offence. This is an offence that must be recorded as a conviction on the police national computer (PNC).

Procedural steps/requirements in respect of alleged breach of order Crime report required – Breach of civil order (Harassment) Code 008/29 Descriptive/Fingerprints/DNA required. Breach of civil harassment order should be investigated as any other crime. Interview required/review by ERU (Evidence Review Officer). Steps should be taken to check whether any alleged breach has been or is being dealt with by way of a civil contempt application

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Points to prove: - Existence of order including when it was made. - In the case of it being made ex parte, that the defendant was aware of its existence

i.e. by having an affidavit of service NB also means that where it can be shown that a defendant was aware of its existence but had evaded service or has made no effort to ascertain its terms, he/she may still commit a criminal offence by breaching its terms.

- The terms of the order. - That the defendant is the person named in the order. - That the order was in force at the time of the alleged breach. - That the acts complained of amounted to a course of conduct prohibited by the

injunction granted by the court. 1.6 Domestic Violence Prevention Notices and Orders – Crime and Security Act 2010 Breach of Domestic Violence Protection Notices and Orders Sections 26(1) and (4) and 29(1) and (3)

A police officer:

• may arrest without warrant anyone they have reasonable grounds for believing to be in breach of a DVPN or Order.

There is no power of entry. The power of entry to save life and limb or prevent serious damage or in connection with a breach of the Peace should be considered when necessary.

On arrest for breaching a Notice, the person must be brought before the magistrates' court which will hear the application for the DVPO:

• within a period of 24 hours beginning at the time of arrest, disregarding Christmas Day, Good Friday and any Sunday,

• at the hearing of that application, if earlier.

On arrest for breaching an Order, the person must be brought before the magistrates' court which will hear the breach within a period of 24 hours beginning at the time of arrest, disregarding Christmas Day, Good Friday and any Sunday.

Breach of a Notice or Order is not an offence. Therefore the powers to take fingerprints, photographs or non-intimate samples do not apply.

Breach of a DVPO is a civil breach of a court order under section 63 of the Magistrate’s Court Act 1980, for which the court may order the person to pay a penalty of £50 for every day that the person is in default, to a maximum of £5000 or 2 months' imprisonment.

When necessary, the domestic violence risk assessment should be reassessed to ensure that any safety measures put in place are sufficient.

https://pvhonline.org/pvh.aspx?p=D40651

https://pvhonline.org/pvh.aspx?p=D40651

https://pvhonline.org/pvh.aspx?p=D40812#power_of_entry

https://pvhonline.org/pvh.aspx?p=D41112#applying_for_an_order

https://pvhonline.org/pvh.aspx?p=C60320




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2. Responsibilities 2.1 Applicants Solicitor shall: After an order has been served (1) Instruct a process server and provide the same with the following documents:

- Order - Applicants affidavit/ statement - Applicants application - Draft section 9 CJA 1967 statement re service

(2) Within the letter of instruction to the process server the applicant’s solicitor is to instruct the process server to complete the Section 9 statement and email the documents listed to the PPC Help Desk [email protected] (3) Provide when possible the out of hours contact number and endorse the details are included in the statement of service or email. (4) If the order is revoked or varied the solicitor shall replicate the process. (5) Where there is evasion of service consult with the Divisional SIU.

2.2 Process Server shall: After service on the respondent (1) Complete a S.9 statement (CJA 1967) to prove service, or to evidence the evasion of service. (2) Email the following documents to PPC Help Desk [email protected]

- Order - Statement (Section 9 CJA 1967) of service - Applicants application - Applicants affidavit /statement.

2.3 Family or Civil Court shall: (1) On receipt of the affidavit/statement of service the court shall email the following documents:

- Order - Certificate of service or statement of service - Applicants application - Applicants affidavit / statement - When service is evaded a statement detailing evidence of evasion is to be included.

To PPC Help Desk [email protected] (2) On notice hearings the court shall issue certificate of service or endorse on the back of the original court order the terms of service, recording the date and time and whom the order was




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served upon (solicitors details or where a party is unrepresented full name and address of the parties) and method of service. The court officer must sign and date the order. Family and Civil Orders Protocol (August 2009) 11

(3) If the order is revoked or varied the court shall replicate the process.

2.4 PNC Update shall: (1) Input Order onto PNC under respondent’s details on the WM page. (2) Email PCC Help Desk [email protected] the order and relating documents/statements with “Non-Molestation Order/Injunction to be placed on NICHE” in the subject field.

(3) Weed PNC on expiry of order.

2.5 Business Support Unit shall:

Injunctions and Non-Molestation Orders are regularly sent by post from Courts and Civil Solicitors.

(1) They will need to be scanned and the scanned copy passed to [email protected] for their action.

2.6 Front Office staff:

Injunctions and Non-Molestation Orders are regularly handed in at front office.

(1) They will need to be scanned and the scanned copy passed to [email protected] for their action.

2.7 Help Desk shall: On receipt of the order and associated documents/statements by email to the Help Desk. The Help Desk will:

(1) The recipient will need to be on NICHE so that a copy of the Order/Injunction can be attached to their person entity.

(2) If there is no trace of the recipient on NICHE then an entity will need to be created for them.

(3) Save the Order notice attached to the email request to your desk top (you will need this later)


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(4) Check PNC to ensure person subject of order has order in WM. If not email order to [email protected] for their action.

(5) Email to order and case papers to the SIU which covers the Division the victim resides within.

CAD details

Opening code: Activity Title: NON MOLESTATION ORDER or INJUNCTION Location: Applicants address Grade:4 Interface to NICHE and complete as per the instructions below Close CAD.

NICHE details

Activity type: Activity Occurrence type: Police Generated Activity Occ time: Received time of the email Status: Filed Summary: NON MOLESTATION ORDER or INJUNCTION Occurrence Location: Applicants address Person Classification: Suspect (All other details to be added if not already in the

system) Aggrieved (all other details to be added if not in system) Aux Status: Filed Stats Tab: 000/90 Civil Orders Referral Aux Status: Filed Status: Filed Victim Support: Declined

How to attach the INJUNCTION/NON MOLESTATION ORDER to NICHE

Go to the overview screen and expand the report Involve Click on the suspect and expand them Go to Events/Reports Right click to add new Pick Court Order – then Other Court Orders (Scanned) Attach the Non-Molestation Order/Injunction which was previously saved to your

desk top by clicking Browse and searching the desktop Do the same for the other party (so you will be attaching the same report to two

people)

2.8 Divisional SIU shall: Ownership of the order will rest with the Divisional SIU. Location of the appropriate SIU will be determined as to where the applicant is residing. The SIU will be tasked from PCC with the order and case papers in Niche.

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(1) Conduct risk assessment using the DASH model. (2) Liaise with applicant’s solicitor where there is evasion of service.

2.9 The Custody Officer shall: Where a breach occurs outside the normal court sitting day the custody officer shall contact the urgent court business officer on arrest / arrival at the police station. Occupation Orders with a power of arrest. Place offender before the issuing court within 24 hours of arrest or arrival at the police station. Exclusion orders with a power of arrest Place offender before the issuing court within 24 hours of arrest. Forced Marriage Protection Order with a power of arrest Place offender before the issuing court within 24 hours of arrest. Non-Molestation Orders

(1) Apply the Threshold Test where there is sufficient evidence to charge refer to the CPS for a charging decision.

(2) Consider remand in custody. (3) If remand conditions do not apply, conditional bail should be considered. (4) Reportable and recordable crime. DNA/Fingerprints/Photograph/PNC1 to be

submitted. Harassment Civil Injunctions

(1) Apply the threshold test where there is sufficient evidence to charge refer to CPS for a charge decision.

(2) Consider remand in custody. (3) If remand conditions do not apply, conditional bail shall be considered. (4) Reportable and recordable crime. DNA/Fingerprints/Photograph/PNC/1 to be

submitted.

2.10 The Arresting Officer in the Case shall: Where a breach occurs; Obtain details of the order and associated documents from Niche if order held in Sussex or when outside of Sussex obtain a copy of the papers from the Divisional SIU where the applicant resides or from the Court issuing order. (a) Non Molestation Orders: 1. Investigate as any other crime, including statements and crime report, review by case director, as an interview is required. 2. Reportable and recordable crime. DNA/Fingerprints/Photograph/PNC/1 to be completed. 3. Notify Issuing court of arrest by email/telephone.

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4. Consult with the victim in accordance with the victim contract and the CPS at all stages to ensure continued information flows about the case progression and any changes in circumstances.

5. File preparation to include: - Witness statement from the complainant. - Witness statement from the process server exhibiting copy of the order served on the

respondent. - Certified copy of the order - Applicants application / affidavit (Unused material) - MG2 Special Measures Assessment Form

(b) Occupation Orders Arresting officer will provide a S.9 statement evidencing the breach of the order and arrest of the suspect to be produced with the suspect’s case papers to family court. (c) Exclusion orders with a power of arrest Arresting officer will provide a S.9 statement evidencing the breach of the order and arrest of the suspect to be produced with suspects case papers to family court (d) Forced Marriage Protection Order Arresting officer will provide a S.9 Statement evidencing the breach and arrest to be produced with the suspect’s case papers to the originating court or a specified Forced Marriage Court (in exceptional circumstances before a county court with family jurisdiction may deal with the enforcement hearing). (e) Civil Harassment Injunction. 1. Investigate as any other crime, including statements and crime report, review by case

director, as an interview is required. 2. Reportable and recordable crime. DNA/Fingerprints/Photograph/PNC/1 to be completed.

Notify Issuing court of arrest by email/telephone. Consult with the victim in accordance with the victim contract and the CPS at all stages to

ensure continued information flows about the case progression and any changes in circumstances.

File preparation to include:

- Witness statement from the complainant. - Witness statement from the process server exhibiting copy of the order served upon

the respondent. - Certified copy of the order. - MG2 special measures assessment form.

2.11 Crown Prosecution Service (CPS) shall: (1) Review and prosecute breaches of a civil order in accordance with the Code for Crown

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Prosecutors and the CPS Domestic Violence Policy and the Guidance for Prosecutors and comply with the service level agreement between Sussex Police and CPS. (2) Deal with the case expeditiously, consideration being given to the safety of the victim, any children, or any other person at risk. (3) Liaise with the police at all stages to ensure continued information flows about case progression and any changes in circumstances. (4) Flag and monitor breach of a civil order as domestic abuse in appropriate cases (5) In cases where the prosecutor at the charging stage determines that the code is not met and there will be no prosecution the prosecutor should request the officer in the case to contact the complainant and inform them without delay of the decision so as to allow the complainant the option of seeking redress in the civil court. (6) The following public interest factors may be of relevance when reviewing an offence under section 42A Family Law Act 1996:

- A conviction is likely to result in a significant sentence. - A weapon was used or violence threatened. - Evidence that the offence was premeditated. - The vulnerability of the victim including whether the victim was put in fear of personal

safety, damage or disturbance. - The offence occurred in close proximity or in the presence of children. - There are grounds for believing the offending behaviour is likely to be continued or

repeated. - The fact that the defendant has breached a court order. - The public interest in prosecuting cases under section 42A increases if the breach is

serious and particularly if it involves the commission of another criminal offence. - Where the actual behaviour is forbidden under the terms of the order but is relatively

minor and not necessarily criminal in itself, the public interest will have to be carefully considered.

- Whenever possible the views of the complainant should be sought. (7) Mode of trial considerations: - Use of weapon. - Use of violence. - Nature of the loss sustained. - Nature of injury sustained. - If the order was breached soon after it was made. - The proximity of children to the offence and the vulnerability of the complainant.

3. Legal Aid in Domestic Abuse and related cases 3.1 Introduction Domestic violence proceedings are a priority area of funding for the Legal Services Commission. Legal aid is available to take proceedings as follows: - Non-molestation orders - Occupation orders - Forced marriage protection orders - Exclusion orders under the Children Act 1989 - Injunctions under the Protection from Harassment Act 1997

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Legal aid is means tested but the means testing rules are more relaxed in domestic violence cases in recognition of the significance of the cases. Legal aid may also be available to defend proceedings.

3.2 Enforcement Proceedings Where a respondent is alleged to be in breach of an order or undertaking, legal aid is available either for the issue of a warrant of arrest or to seek the respondent’s committal. The availability of legal aid varies depending on the nature of the enforcement proceedings.

3.3 Non-Molestation Orders Since breach of a non-molestation order is a criminal offence. Legal aid is unlikely to be granted for committal proceedings on their own, if criminal proceedings have been instigated by the police. Where a respondent is convicted for a breach of a non-molestation order, the same conduct is not punishable as a contempt of court. Where no action is taken to charge by the police/CPS then legal aid is available to apply for a warrant of arrest of committal for contempt of court. Criminal legal aid can be applied for by the defendant in the same way as any other criminal offence. 3.4 Occupation Orders Legal aid is available for civil proceedings where an occupation order is breached, both to take and defend proceedings, and to make representations as to bail in adjourned proceedings. 3.5 Forced Marriage Civil Protection Orders Legal aid is available for civil proceedings where an order is breached, both to take and defend proceedings. 3.6 Exclusion Orders under the Children Act 1989 Legal aid is available on a non-means, non-merits tested basis to enforce breached of exclusion orders made as part of an emergency protection order or interim care order. The excluded person can apply for legal aid (but on a means and merits tested basis), to vary or discharge an exclusion order. 3.7 Civil Harassment Injunctions Since breach of an injunction is a criminal offence legal aid is unlikely to be granted for committal proceedings if criminal proceedings have been commenced by the police/CPS.

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4. Information Sharing 4.1 All parties shall: Work together to ensure that an appropriate information sharing agreement is created and signed up to accompany this document and facilitate the information sharing described at the earliest available opportunity and in any event by 2010. Should such an agreement not be signed by this date all information sharing shall cease until this agreement is completed. This work will be led by the Specialist Investigations Branch, HQ CID. Once completed it shall be attached as an appendix and reviewed annually to ensure that it still meets the needs of the parties and is fit for purpose. 5. Frequently Asked Questions: (Q1). If person is arrested for being in breach of an occupation order and a non-molestation order or suspicion of another criminal offence, how would the split jurisdiction be dealt with? (A1). The occupation order will take precedence and the suspect will have to be placed before the issuing civil court within 24 hours. With regard to the criminal proceedings the suspect may be given bail pending the suspect’s appearance at the civil court. The breach of the non-molestation order or any other criminal offence would continue to be investigated and referred to CPS. (Q2). If there is a criminal investigation into the breach of a non-molestation order, which does not result in a criminal charges, can the victim revert to the civil procedure? (A2). If a charge is refused in accordance with the Prosecutor’s Code the duty prosecutor will request the officer in the case to notify the complainant immediately so as to allow them to seek civil redress if they wish. (Q3). If further offences are brought to the attention of the police when the victim’s civil case papers are served on the police are crime reports required? (A3). If the offences forming the elements required to make the order that are contained within the civil case papers, are not independently reported to the police, then there is no requirement to submit crime reports for them, or to investigate the offences disclosed. If there was reported breach of the order and the victim was then approached and confirmed the offences, then there would only be one crime submitted, as all the offences would be reported at the same time. (Q4). Where can I get a copy of the order and associated paperwork? (A4). Once the order has been served on the respondent the details will be circulated on PNC and stored in Niche. Copies can be obtained from the court which made the orders if required and not held in Sussex.

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(Q5). If the order has not been served on the respondent and there is a reported breach, what action should the police take? (A5) Once an order has been issued it requires service on the respondent for it to be effective. Section 42A (2) of the FLA 1996 provides that a person may now be guilty of a criminal offence of a breach of a non-molestation order made ex parte if he is aware that an order has been made against him. This provision has been included to cover the situation where service is deliberately evaded. In cases of evasion of service the applicant’s solicitor will provide a statement detailing the efforts that have been made to serve the order and in what terms the respondent has been informed of the order e.g. verbally in person, by the telephone. If there is evidence that the respondent is aware of the order and a breach is reported, positive action should be taken and the breach investigated.

Appendix A Family and Civil Orders Process

Order Issued

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↓ Ex Parte Orders

Requires Service, Solicitor shall instruct Process Server ↓

Process Server serves case papers on Respondent ↓

Order Served ↓

Process Server to email Sussex Police Help Desk [email protected]

↓ Solicitor shall serve case papers on issuing Court

↓ Issuing Court to email papers to Sussex Police Help Desk

[email protected] (Note 1)

Order Issued ↓

On Notice Hearing Certificate of service issued

↓ Issuing Court to email papers to Sussex Police Help Desk

[email protected] (Note 1)

Note 1 Case papers to be emailed: - Order - Application - Applicants Affidavit/Statement - Sec 9 Statement / Certificate of service

Appendix B Family and Civil Orders Process for Sussex Police




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Help Desk Process Order and case papers received by Help Desk

Input to Niche and check if on PNC ↓

If not on PNC email order to pnc_update ↓

Task order and case papers to Divisional SIU within area where victim lives

PNC Process Order and case papers received direct or emailed from within Sussex

Police to PNC Update PNC record of person subject to order

↓ Email to [email protected] with ‘Non-Molestation Order/Injunction to be placed on Niche’ in the subject field

Front Office Process Order and case papers received direct to Front Office

↓ They will need to be scanned and emailed to pnc_update

Business Support Unit Process Order and case papers received direct to Business Support Unit

↓ They will need to be scanned and emailed to pnc_update

Appendix C

National Centre for Domestic (NCDV) Violence Process


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NCDV receives referral from Sussex officer. NCDV obtain civil court order ↓

NCDV email referring officer notification of order obtained. Officer can access order and case papers via ‘access’ link to NCDV website. NCDV process server issues police station nearest to where victim live copy of the order and case papers. NCDV email notification to PCC Help Desk

[email protected] ↓

Front office process commences. PCC will check to ensure that any notification has gone onto Niche.

Appendix D SIU Contact Details


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Eastbourne, Wealden and Lewes Eastbourne: Patrol Centre, Hammonds Drive, Eastbourne, E. Sussex, BN23 6PW Tel: 101 E-mail: [email protected] Hastings and Rother Hastings: Police Station, Bohemia Road, Hastings, E. Sussex, TN34 1JJ Tel: 101 E-mail: [email protected] Worthing, Adur, Chichester and Arun, Bognor Regis: Police Station, London Road, Bognor Regis, W. Sussex, PO21 1BA Tel: 101 E-mail: [email protected] Brighton and Hove Brighton: Police Station, John Street, Brighton, E. Sussex, BN2 2LA Tel: 101 E-mail: [email protected] Horsham, Crawley and Mid Sussex Crawley: Police Station, Northgate Avenue, Crawley, West Sussex, RH10 8BF Tel: 101 E-mail: [email protected]

Appendix E




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HMCTS Sussex – Magistrates’ Court List Sussex Area – Magistrates’ Courts Area Court Telephone Number Central Brighton (Central) Area (covering Crawley, Hastings Horsham and Worthing for crime matters)

Brighton Magistrates’ Court The Law Courts Edward Street Brighton East Sussex. BN2 0LG

Tel: 01273 670888 For all crime matters

Sussex Designated Family Court

1 Edward Street Brighton BN2

01273 811333 or for urgent appointments number 01273 388421

Brighton County Court William Street Brighton BN2 0RF

For civil injunctions Tel: 01273 674421

Eastern Area (for family) Hastings Magistrates’ Court The Law Courts Bohemia Road Hastings East Sussex. TN34 1ND

Tel: 01424 437644 For Family urgent appointments number: 01424 710298

Northern Area Crawley Magistrates’ Court County Buildings Woodfield Road Crawley West Sussex

See Brighton number above for crime

Horsham Magistrates’ Court The Law Courts Hurst Road Horsham West Sussex.

Administered from the Brighton Magistrates’ Court for crime Administered from the Designated Family Centre- Brighton for family- see above

Western Area – (for family and civil )

Worthing Magistrates’ Court The Law Courts Christchurch Road Worthing West Sussex. BN11 1JD

Administered from the Brighton Magistrates’ Court for crime For family and civil: 01903 221929

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Appendix F Urgent Court Business Scheme Not all incidents that may require the attention of a judge occur within normal office hours. In order to cater for such emergencies, Her Majesty's Courts Service provides a system known as Urgent Court Business. This system allows you to contact an experienced member of court staff during the evenings, weekends or public holidays as follows: Times the system operates Between 4.00 pm and 8.30 am each weekday Between 4.00 pm on Friday until 8.30 am on Monday for each weekend; and From 4.00 pm on the last day preceding a public or privilege holiday that the Court is open, until 8.30 am on the day the Court is next open. It is not possible to provide timings that cover every eventuality. These timings are guidelines and staff must apply an element of judgement. If a court is contacted after 4.00pm and a judge is available then the matter can be dealt with. If, however no judge is available, then the UCBO should be paged from 4pm. The overriding principle is that cover must be available 24 hours a day How the system operates The contact number for the South East ‘Out of Hours’ scheme is 07471 141742 Contingency In the unlikely event that you are unable to contact the UCB Officer, HMCTS operates an ‘out of hours’ service at the RCJ in London which is the contingency system. The number to ring is 0207 947 6260. What does UCB cover? UCB covers both Private Law applications and Public Law applications: Private Law · Injunction breaches · Children Act applications · Other urgent applications (where an individual’s personal safety, well-being, business or assets may be at risk) Public Law · These are mostly, but not exclusively, applications for an Emergency Protection order (EPO) Civil · Breaches of Anti Social Behaviour Orders (ASBOs) with Power of Arrest attached on Housing Act matters

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What is not covered under the UCB scheme? · High Court Applications - these are governed by Practice Direction 12E under the Family Procedure Rules 2010 and are managed, out of hours, by the RCJ in London. · Calls from Litigants in Person (LiPs) – if you receive a call from a LiP, staff are advised to inform the caller to seek legal advice. If the caller persists, then the call should be passed to the RCJ, London to deal with. · Criminal matters – the Magistrates have their own out of hours scheme. The number to contact is 0203 334 3333 (for Bedfordshire, Hertfordshire, Surrey, Sussex and Thames Valley and 0203 334 3323 (for Cambridge, Essex, Kent, Norfolk and Suffolk). Additional Guidance - Injunctions You will be asked whether the Defendant/Respondent has been served with the power of arrest Order. Please ensure that the certificate of service has been signed by the Solicitor or Process Server.

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Appendix G

Witness Statement / Affidavit CJ Act 1967, s.9 MC Act 1980, s.102, MC Rules 1981, r.70

This statement (consisting of pages each signed by me) is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I wilfully stated in it anything, which I know to be false or do not believe to be true. I, [full name of witness], of [company name and address] will say and make oath as follows:- 1. I am employed as a process server with [company name and address]. In my capacity as a process server I regularly serve court documents and orders upon individuals who are involved in court proceedings. 2. On [date of instructions] I received instructions from [solicitor’s firm and address], solicitors for the Applicant, [applicant’s name] to serve documents upon [respondent’s name] by way of personal service. 3. In accordance with those instructions I personally served the following documents upon [name of respondent] i) Order dated the [date of order] ii) Applicant’s affidavit/statement iii) Application by handing them to [respondent’s name] at [time] on the [date of service] at [location] 4. The Respondent identified himself to me as being [respondent’s name] 5. I also delivered a copy of the same documents to the [name of police force] at [address of police station] on [date of service] at [time of service]. 6. I exhibit copies of the documents served upon [respondent’s name] and delivered to [name of police force] with this statement, marked exhibit “[initials and number]”. The contents of this statement are true to the best of my knowledge and belief and the statement is made in the knowledge it will be referred to in court proceedings. Sworn / Affirmed / Signed At ……………………………………………… In the County of ……………………………………….. This ……………… day of …………………………………………………………………………………. Before me ………………………………………………… A commissioner for oaths / solicitor / Officer of the court appointed to take affidavits.

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Appendix G continued

EXHIBIT marked “…………”

This is the exhibit marked …………. referred to in Paragraph 6 of the witness statement / affidavit Of ……………………………………………………………………………………………………………... Sworn / Affirmed / Signed This ………. Day of ………………………………………………………………………………………... Before me …………………………………………………………………………………………………… Officer of the court / commissioner for oaths / solicitor

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