Communtity Law Manual | Harassment & bullying | When a restraining order can be made

Harassment in the community: Getting protection under the Harassment Act

When a restraining order can be made

How will the judge decide whether to make the restraining order?

Harassment Act 1997, s 16

To be able to make a restraining order the judge must be satisfied that:

  • the behaviour amounts to “harassment”, which means a pattern of behaviour of the kind described in the Harassment Act (see above, “What counts as ‘harassment’”)
  • the behaviour is causing you distress (or is threatening to do so), and it would have the same effect on any reasonable person in your situation, and
  • the distress is serious enough to justify the judge making a restraining order, and
  • the order is necessary to protect you from further harassment.

So the test for getting a civil restraining order is about the effect of the behaviour on you, the person being harassed – it’s not about what the harasser intended. You only need to show that the harassment caused you “distress”, and that any reasonable person would have been likely to have found it distressing. It’s not necessary for the harasser to have intended to cause you distress – in fact they could even be unaware you find the behaviour distressing.

Harassment Act 1997, ss 8, 16

By contrast the test for criminal harassment focuses on the harasser’s intention (see in this chapter, “Going to the police: When the criminal law can help with harassment”).

What kind of proof will the judge need, and how much?

Harassment Act 1997, ss 29, 30

Y0u’ll need to provide the judge with information to prove that you’ve been the victim of harassment and that you need a restraining order to protect you. The judge can consider a broad range of evidence, including evidence that wouldn’t normally be allowed in other court cases, if the judge believes it’s in the interests of justice to allow the evidence.

You’ll need to prove your case on the “balance of probabilities” – in other words, that your case is more likely than not to be true.

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