Legal options

WHAT IS A NON-MOLESTATION ORDER?

A non-molestation order is an order that a judge can grant to stop or prevent a person from abusing, harassing, pestering, using or threatening to use violence against another person in any way. It can be general in nature for example that “x shall not molest”. It can be more specific for example the court can set out certain acts which are forbidden and deemed to be an act of molestation. A non-molestation order can specifically include children or in some cases may be made for children alone. The court also has the power to attach an “exclusion zone” to the order which means that an alleged perpetrator can be excluded from certain places such as the street or area in which the victim lives, works, or on occasions, the school which their children attend.
Back to Top

WHAT IS AN OCCUPATION ORDER?

An occupation order is an order that a judge can make to declare who has the right to occupy a property. The judge who makes the decision will look at many things when deciding whether to make an occupation order, like whether or not the person has other accommodation available. An occupation order may be used as a complementary order to the non-molestation order or as a stand-alone order. When it is granted alongside a non-molestation order it offers added protection to victims by preventing the alleged perpetrator from living in the family home and a breach of any such orders is deemed to be a criminal offence.
Back to Top

WHO CAN APPLY FOR NON-MOLESTATION AND OCCUPATION ORDERS?

The legislation sets out the categories of people who can apply for these orders. In general terms a victim can apply for an order against someone who is a family member or has lived with them in a familial relationship. The following are the specific categories of people who can apply (known as associated persons). A person is associated with another person if:
  • they are or have been married to each other
  • they are or have been civil partners of each other
  • they are co-habitees or former co-habitees
  • they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder
  • they are relatives. “Relative”, in relation to a person means;
  1. a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson, or granddaughter of that person or of that person’s spouse or former spouse or b) the brother, sister, uncle, aunt ,niece or nephew (whether of the full blood or of the half blood or by affinity ) of that person or of that person’s spouse or former spouse And includes, in relation to a person who is living or has lived with another person, as husband and wife, any person who would fall within paragraph (a) or (b) if the parties were married to each other”
  • they have agreed to marry one another
  • they have entered into a civil partnership agreement
  • in relation to any child, they are a parent of the child; or has or has had parental responsibility for the child
  • they are parties to the same family proceedings (other than proceedings under this order)
If an alleged perpetrator does not fall under one of these categories a victim may instead be able to apply for protection by way of a civil injunction.
Back to Top

WHAT IS AN EX-PARTE ORDER? (EMERGENCY ORDER)

BOTH A NON-MOLESTATION ORDER AND AN OCCUPATION ORDER CAN BE MADE BY AN EX-PARTE APPLICATION If there has been a recent (usually within seven days) incident of abuse a victim can make an emergency application to the court for either a non-molestation order or an occupation order or both. These are often referred to as ex-parte orders. This means that the Respondent (alleged perpetrator) is not notified of the application being made to the court. Ex – Parte orders will only be granted on a short term (interim) basis but are useful in providing urgent protection from further abuse, until such times as the Respondent (alleged perpetrator) can be given notice of the application for a full order being sought. The order usually lasts until the next court date. If the order has been made by way of ex-parte or in an emergency then the alleged perpetrator will not have been in court and will not know that the order is in place. In these cases the information on the order is sent by the court to the Police Service N. Ireland (PSNI) who will serve it (inform the person). THE ORDER TAKES EFFECT ONCE SERVED The Applicant (victim) will also receive a copy of the order by first class post from the Northern Ireland Court and Tribunals Service (NICTS) (See sample Ex-Parte Non-Molestation Order at Appendix 1). If an emergency order is granted by the court, the court will then summons both parties to attend court for a full hearing. The Respondent (alleged perpetrator) can either confirm that they are content for a full non-molestation and/ or occupation order to be made against them, or, they can say that they are not happy with the order being made and can defend themselves against such an order being made.
Back to Top

WHAT IS AN INTER-PARTES ORDER?

An inter-partes order is the term used when both the Applicant (victim) and the Respondent (alleged perpetrator) have been given the opportunity to be present or represented in court.
If the order is made when the Respondent is in court, or is represented in court by a solicitor then they are aware from that date that the order is in place.
The order will also be served by special delivery (currently DX*) or first class post by Northern Ireland Court and Tribunals Service (NICTS) to the Respondent’s solicitor’s address. Copies of the order are also sent to the police.
If the Respondent was present at the hearing but not represented by a solicitor and it is not known if a solicitor is engaged the order is also served by first class post by NICTS to the Respondent’s residence or last known residence.
If the Respondent is not present in court or not represented by a solicitor the order will be sent to the police to be served on the respondent. *DX is an independent mail delivery service.

THE ORDER IS EFFECTIVE FROM THE TIME THAT IT IS GRANTED IN COURT.
The orders granted can last for whatever period the court orders – the usual period is 18 months. During this period the order can be varied to meet any changing circumstances. If domestic violence/ abuse persists after the order has expired further orders can be applied for.

Back to Top

WHAT IS HARASSMENT?

Harassment is repeated and unwanted behaviour/ conduct by the alleged perpetrator and causes the victim to have a negative reaction in terms of alarm or distress. Behaviour as part of a campaign of harassment can include:

  • Frequent, unwanted contact, for example appearing at the home or workplace of the victim, telephone calls, text messages, emails or other contact such as via the internet/ social networking sites
  • Driving past the victim’s home or work
  • Following or watching the victim
  • Sending letters or unwanted ‘gifts’ to the victim
  • Damaging the victim’s property
  • Burglary or robbery of the victim’s home, workplace, vehicle or other
  • Threats of harm to the victim and/ or others associated with them (including sexual violence and threats to kill)
  • Harassment of people associated with the victim (eg. family members, partner, work colleagues)
  • Physical and/ or sexual assault of the victim and even murder

Back to Top

WHAT IS STALKING?

Stalking is not a legal term used in the context of the criminal justice system. It is a colloquial term used to describe a particular kind of harassment. It is normally used to describe a long-term pattern of persistent and repeated following of the victim, communication with them or other intrusions into the privacy of the victim. Unwanted communications may include:

  • Telephone calls
  • Text messages
  • Letters
  • E mails
  • Faxes
  • Sending or leaving unsolicited materials/gifts, graffiti
  • Messages on social media.

Unwanted intrusions include the following:

  • Waiting for
  • Spying on
  • Approaching
  • Accosting
  • Going to a person’s home. In addition to unwanted communication and intrusion, the stalker may engage in a number of associated behaviours including ordering or cancelling goods/ services, making vexatious complaints (to legitimate bodies), threats, property damage and violence. In some cases the conduct might appear innocent if it is taken in isolation, but when it is linked as a course of conduct it may then be sufficient to cause harassment, alarm or distress to the victim and amount to harassment. The term stalking is often used by the media to describe cases where the suspect is a stranger or an acquaintance of the victim, or has had only a brief, intimate relationship with the victim. The term harassment can include stalking where offences under the Protection from Harassment (Northern Ireland) Order 1997 are involved.

Back to Top

What is a restraining order?

A restraining order may specify any conduct or act which is prohibited and which amounts to harassment or will cause a fear of violence. Restraining orders can be applied for, once criminal proceedings have concluded in court.
Restraining orders may even be made where the defendant is acquitted, to cover the cases where despite the acquittal the court feels the victim of harassment still needs protection. The court can make the order of its own volition or if they are asked to by the prosecution. The onus is on the prosecution to remind the court of its powers particularly on acquittal.
The police, in making a referral to the prosecution, can include a recommendation to the prosecution that such an order needs to be considered. It is of course still open to any victim to seek a non-molestation order as previously outlined but the use of this power by the courts would perhaps suggest a more proactive approach by the courts and may offer more seamless protection to victims.
Back to Top

WHAT IS A CIVIL INJUNCTION?

A civil injunction is any order requiring a person to take a certain step (A mandatory injunction) or preventing him or her from doing something (A prohibitory injunction).
Under The Protection from Harassment (NI) Order 1997 a civil injunction may be used when there are no familial relationships i.e. Where the parties are not associated persons as listed on page 4 paragraph “Who can apply for Non Molestation and Occupation Orders?” 
There must be evidence of two separate incidents of harassment and physical violence or harm to seek this remedy.
Back to Top

WHAT IS AN UNDERTAKING?

An undertaking is a solemn promise from one party to another to do something or not to do something. In cases where one party applies for a non-molestation order, the alleged perpetrator (Respondent) sometimes offers to give an undertaking as a promise not to do certain things without having to agree that they have in the past been harassing the applicant. Undertakings have no legal basis and cannot be actioned by the police.
Back to Top

What is a police information notice? (PIN)

There are some circumstances in which it can be useful for the police to inform a suspect verbally and/or in writing that their alleged actions may constitute an offence under The Protection from Harassment (NI) Order 1997 (described here as a Police Information Notice).

Content of a Police Information Notice (PIN) The notice itself should be sufficient to advise the suspect that the PIN is:

  • not a court order or any form of conviction or caution
  • the requirements and scope of The Protection from Harassment (NI) Order 1997 is that all allegations of harassment are taken seriously and investigated by the police
  • that harassment, alarm or distress has been caused, or may have been caused, to the victim by specified actions of the suspect (or that this may be caused should the conduct continue to be repeated)
  • that any future, similar conduct could amount to a criminal offence under The Protection from Harassment (NI) Order 1997
  • the fact that the PIN has been received could be used as evidence in any future criminal investigation or prosecution, or civil proceedings taken by the victim
  • that acknowledging receipt of the notice does not mean that the suspect is admitting any wrongdoing – simply accepting information about The Protection from Harassment (NI) Order 1997 and the police position on investigating allegations of harassment.

Issuing a Police Information Notice (PIN)

Before a PIN is given to a suspect, this process should be explained to the potential victim and a copy of the notice given to them. In particular, it should be explained that the PIN is not a court order and is simply information for the suspect. The victim should be informed that the only way it would be possible for a court order to be granted at this stage would be by a private civil case brought by the victim, and the victim could seek independent legal advice from a solicitor. As the receipt of a PIN may be used as evidence in subsequent proceedings, it should be given personally so that there is clarity about the suspect’s identity and that they received the notice. Whenever a notice is given, officers should not suggest that this implies any guilt on the part of the suspect. They should not suggest that the police information notice marks an end of the matter as this could render evidence of conduct prior to the notice inadmissible in any subsequent prosecution.


Back to Top