Hatred and Harassment Offences Flashcards

Question

When Will The Person Arrested Under Warrant Be Deal With By The Civil Court? 2 options

Answer 1

Option 1 The person arrested under warrant will be: * Brought before the court; and * Dealt with at the time of their appearance. Option 2 The court may adjourn proceedings and release the defendant to deal with them thereafter within 14 days of their arrest. If so the defendant must be given at least 2 days' notice of the adjourned hearing.

Answer 2

Step 1 The High Court or County Court has granted an injunction. step 2 The defendant has, without reasonable excuse, done anything which they are prohibited from doing by the injunction.

Answer 3

Post Conviction Power Of Criminal Courts To Impose A Restraining Order A criminal court either: * Sentencing; * Otherwise dealing with a person convicted Of an offence Of either: * Harassment; or * Putting people in fear of violence.. Scope Of The Court's Powers? .will have the power to impose both: * A sentence for the offence; and * A restraining order. Who Can Be Protected By The Restraining Order? Either: * The victim(s) of an offence of either: * Harassment; or * Putting people in fear of violence * Any other person specified in the order. What Are They Protected From? .from conduct which either: * Amounts to harassment; or * Will cause fear of violence. Duration Of The Order? The court may prohibit the person convicted - from doing anything specified in the order for either: * A specified period; or * Until further order. Who Can Apply To Vary Or Discharge A Restraining Order? The application can be made to the criminal court that initially imposed the order — by either: * The prosecutor; * The defendant; or * Any other person mentioned in the order. Can A Restraining Order Be Made Or Extended For An Indefinite Period? Yes R v Debnath (2005) EWCA Crim 3472

Answer 4

Step 1 A restraining order was in force upon the defendant. step 2 The defendant has done anything which they are prohibited from doing by the terms of the restraining order. Step 3 The defendant did not have a reasonable excuse for breaching the terms of the restraining order. Will The Defendants Subjective Belief Be Relevant In Determining Whether They Have A Reasonable Excuse? Yes

Answer 5

Section 12 of the DVCVA 2004 introduced section 5A into the PHA 1997, which allows the court to make a restraining order after acquitting a defendant of any offence if the court considers it necessary to do so to protect a person from harassment from the defendant. Unlike restraining orders on conviction, there is no power to protect a person from fear of violence that falls short of harassment where the defendant has been acquitted. Section 5A was introduced to deal with those cases where there is clear evidence that the victim needs protection, but there is insufficient evidence to convict on the particular charges before the court. It is still open to the victim to seek a non-molestation order or injunction from a civil court. However, this more proactive approach on the part of the courts using section 5A is seen as not only avoiding delay and increased costs to the legal aid budget, but also providing a more seamless process of providing protection to victims. Section 5A only applies where there has been an acquittal. It does not apply where proceedings have been withdrawn or discontinued - this is a very important legal point. An "acquittal" under section 5A of the PHA 1997 means any occasion when proceedings are dismissed following the hearing of evidence at trial. This interpretation of the word would also include the situation when the prosecution offers no evidence with regard to the substantive charge: R (O) v Stratford Youth Court [2004] EWHC 1553 (Admin). The effect of section 17 of the Criminal Justice Act 1967 is that where a prosecutor offers no evidence against a defendant who has pleaded not guilty to an indictable offence in the Crown Court, the court may order that a verdict of not guilty is recorded, and this has the same effect as if the defendant had been tried and acquitted. On a summary trial, where a charge is dismissed following the prosecution's decision to offer no evidence, this would be regarded as an acquittal for the purposes of the doctrine of "autrefois acquit". Applying this logic to section 5A (1), it is arguable that the reference to a court before which the defendant is acquitted of an offence should be read to include a court before which the prosecution offered no evidence and a charge was dismissed. Although the point has not been specifically argued before the appellate courts, a line of authorities has begun to emerge in which implicit approval has been given to the practice of imposing a restraining order following the offering of new evidence by the prosecution.

Answer 6

Who Can Make A Direction? The most senior ranking police officer at the scene. Who The Direction Can Be Directed Towards? Persons present in the vicinity of an occupied dwelling (NB not business premises) posing specific risks to the resident or other persons. Grounds For Making A Direction? The constable believes, on reasonable grounds (objective test) - that the persons are in the vicinity of the dwelling for the purpose of either: * Representing to; or * Persuading... .either: * The resident; or * Anybody else... .to either: * Not do something that they are entitled or required to do; or * Do something that they are not under an obligation to do. .and the constable also believes, on reasonable grounds (objective test) - that the person's presence either: * Amounts to harassment of the resident; * Is likely to result in harassment of the resident; or * Is likely to cause alarm or distress to the resident. Terms Of The Direction The officer (who need not be in uniform) - can orally direct either: * An individual person; or * Groups of persons .in the vicinity of the residential premises. .to do anything that they deem necessary to prevent the resident from suffering either: . Harassment; * Alarm; or * Distress... which may include: * A direction to leave the vicinity of the premises either: * Immediately; or * Within a specified period. * Not to return to the vicinity of the premises for a period specified by the constable — for up to 3 months.

Answer 7

Step 1 The person had been given a direction. step 2 The person has received the direction. NB — make sure any group direction has been received by the individual in breach. Step 3 The person understood the direction. Step 4 The person knowingly failed to comply with the terms of the direction.

Answer 8

Step 1 An offence will be committed by a person who is subject to a direction - to: * Leave; and * Not to return for a specified period ..if they return to vicinity of the premises - within the specified period... step 2 .and do so for the purpose of either: * Representing to; or * Persuading .either: * The resident; or * Anybody else (who need reside at the dwelling).. .to either: * Not do something that they are entitled or required to do; or * Do something that they are not under an obligation to do.

Answer 9

Step 1 - Location The person (offender) is present either: * Outside; or * In the vicinity Of dwelling premises. Step 2 - Purpose The person (offender) is present for the purpose of either: * Representing to; or * Persuading .either: * The resident; or * Anybody else - (who need reside at the dwelling).. .to either: * Not do something that they are entitled or required to do; or * Do something that they are not under an obligation to do. Step 3 - Mens Rea The person (offender) either: * Intends their presence to amount to causing; or * Either: * Knows; or * Ought to know .that their presence is likely to result in. .either: * Harassment; * Alarm; or * Distress .to the resident. Step 4 — The Consequence The presence of the offender in the vicinity either: * Amounts to or causes; or * Is likely to result in.. .either: * Harassment; * Alarm; or * Distress... .to either: * The resident; * A person located in the resident's dwelling; or * A person located in another dwelling in the vicinity of the resident's dwelling.

Hatred and Harassment Offences Flashcards

(33 cards)