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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69254
Experience:  Over 5 years in practice
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my current partners ex boyfriend is calling us constantly,

Customer Question

my current partners ex boyfriend is calling us constantly, accusing us of all sort of things with are libelous. My partner is really upset. The police has been called but they aren't taking this seriously even though extensive history exists. My partner is a vulnerable adult and his ex partner has been abusing his position of trust by mismanaging his finances purposely in order to make him lose his home and then get him to come back to him by offereing him refuge in a 2 bedroom apartment. I believe we are entitled to a restraining order both against him and his family, who are ringing his relatives and harassing them, too. We have taken out a small claims court action and his ex partner has been served. Since then there is of continuing defamation (in which republication or continued visibility comprises ongoing renewed defamation). The telephone calls constitute slander
cases where the defendant and witness know each other or have been in a previous intimate relationship (such as domestic violence cases);
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.
Harassment is not defined in the PHA 1997, except that it includes causing a person alarm or distress.
Restraining Orders - Section 5, Protection from Harassment Act 1997
Restraining orders post-conviction
Restraining orders post-acquittal
Meaning of acquittal
Cases that may require a Restraining Order
Review and preparation
Views of the victim
Making an application
Evidence to support an application
Offering no evidence and making an application
Draft orders
Duration of an order
Variation or discharge
Quashed convictions
Consequences of breach
Related Information
Section 12 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) came into force on 30 September 2009, amending section 5 of the Protection from Harassment Act 1997 (PHA 1997). Section 5 of the PHA 1997 previously permitted a criminal court to make a restraining order only when sentencing or otherwise dealing with a defendant convicted of an offence of harassment (contrary to section 2 PHA 1997) or an offence of putting someone in fear of violence (contrary to section 4 PHA 1997). Its amendment enables the court to impose a restraining order in a much wider range of circumstances.
Section 12 of the DVCVA 2004 also gives any person mentioned in a restraining order the right to make representations in court if an application is made to vary or discharge that order.
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Following the implementation of section 12 of the DVCVA 2004, restraining orders may be made on conviction or acquittal for any criminal offence. These orders are intended to be preventative and protective. The guiding principle is that there must be a need for the order to protect a person or persons. A restraining order is therefore preventative, not punitive.
Restraining orders can only be made in respect of the defendant (not the victim or any witness), even if evidence in the course of a trial indicates that the behaviour of both the defendant and the victim requires addressing.
The test to be applied by the court before making an order is whether an order is necessary to protect the persons named in it from harassment or conduct that will put them in fear of violence. This necessitates an evaluation by the court of the evidence before it. It will require the court to determine whether there is sufficient evidence in front of it to enable it to form a view that an order is necessary. Restraining orders are civil behaviour orders and therefore the standard of proof is a civil one (R v Major [2010] EWCA Crim 3016).
The court retains its power to bind over the defendant, victim or witnesses of its own motion at any time before the conclusion of the criminal proceedings or on acquittal where it believes a person's behaviour is such that there might be a breach of the peace in the future.
When sentencing for any offence the court can now, under the above provisions, make a restraining order for the purpose of protecting a person (the victim or victims of the offence or any other person mentioned in the order) from conduct which amounts to harassment or which will cause a fear of violence.
However, restraining orders are not limited to these types of cases. The overriding consideration should always be whether a restraining order is required to protect the victim or other person.
Can you help, please?
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Thank you for your question. My name is ***** ***** I will try to help with this.=
Why are you involved in this? It would seem to be her dispute.
I am thinking of you and the need to protect your position.
Expert:  Jo C. replied 1 year ago.
Can you respond OK?
Please don't put yourself to detail. I am just concerned that you are exposing yourself to risk when it is not your problem. I know you want to be a supportive partner but I am sure she would not want to place you at risk.
Customer: replied 1 year ago.

it is not my problem, I agree but since Mr O'flaherty is a vulnerable adult and my partner and I have helped him writing down the acusations and we have reported this to action fraud together (Mr Coward also stole off me) I am looking for a way to stop him calling or contacting us. Mr Coward has sent us the following statement, which he is breaching:

As stated I do not want any contact with Paul, so as you are his boyfriend that means with you also. After the last outburst of Paul being nasty etc, which has caused this situation I was heading for a very bad breakdown and and no longer wish to go their as my health is more important to me. If you require any contact I require that it be via your solicitors.

Expert:  Jo C. replied 1 year ago.
Yes, i understand but it isn't for you to sort this out.
So, in shott, this person is contacting him? How many times roughly please and is he responding?
Customer: replied 1 year ago.

Mr Coward has been accusing us both of being drug dealers, chrystal meth addicts and thiefs. Mr O'Flaherty is unable to sort this out without help because he is of limited capacity and has been taken advantage of by Mr Coward over the course of 10 years

According to Section 44 of the Mental Capacity Act 2005, offences associated with
financial abuse include:
• theft (cash)

• fraud by abuse of position (mismanagement of finances causing debt that Mr O'Flaherty will never be able to repay)
• fraud by failing to disclose information (withholding bank statements and letters from debt collectors)
• fraud by false representation (using a false name and taking out loans on Mr O'Flahertys address, as he was the designated key holder. Stealing post from Mr O'Flaherty and never paying back the loans)
• blackmail (if you say anything to Mr Kruger he will surely end your relationship, call the police, have you arrested and put in prison)
• forgery (taking out loans in his made-up name, musiusing Mr O'Flahertys address)
• ill treatment or neglect. (getting Mr O'Flaherty arrested numerous times only for the charges to be dropped later on)

Expert:  Jo C. replied 1 year ago.
What I need to know is how many times and is your partner responding?
Customer: replied 1 year ago.

he has responded twice, even though the [police have said to NOT respond. I have asked him to not respond to anymore. I also advised his family to ignore any calls or texts sent by Mr Coward or his mother but to keep a detailed call log to be passed on to the met police

Expert:  Jo C. replied 1 year ago.
So how many times has he been contacted please?
Customer: replied 1 year ago.

he has been contacted 3 times by telephone, 2 emails and 1 text

Expert:  Jo C. replied 1 year ago.
The resaon the polce are not acting is that there have been insufficient messages to amount to a serious instance of harassment. You could argue that there is a harassment. It depends when he responded and how many messages there have been subsequently.
But three calls, two emails and one text is not the worst instancer of harassment. Normally they just deliver a harassment warning on the first occasion of a report of this kind rather than prosecuting.
The other instances that you mention are civil matters save for the potential for forgery which is not harassment but a crime in itself.
If this is a genuine harassment then all he has to do is stop responding. If the conduct discontinues then the matter is at an end. If it continues then he can report it. The police will act if there is genuine one way contact.
Can I clarify anything for you?
Jo C., Barrister
Category: Law
Satisfied Customers: 69254
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 1 year ago.

so there is nothing we can do at this point to prevent his family from contacting Mr O'Flahet's family? And the advice is that we should just ignore his tantrums and when he police comes tonight at 8pm report this incident as I have reported this to you and ask them to act?

Expert:  Jo C. replied 1 year ago.
No. That would not amount to harassment anyway unless they are suggesting that they make contact with him.
I wouldn't bother to report it to be wholly honest.
Just ignore him. Keep a log of the incidents and if they worsen complain then when there is something to act upon.
Customer: replied 1 year ago.

okay - I am going to follow your advice. Since I have a 7 day trial I will contact you again, if needed. Many thanks

Expert:  Jo C. replied 1 year ago.
No problem.

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