Since 1 July 2007, it has been a criminal offence to breach a non-molestation order, with a maximum penalty of up to five years’ imprisonment. Unusually, however, the victim of such breaches has the choice when taking action of opting not to take criminal proceedings. In that case, an application can be made for a warrant for arrest for the breach of the non-molestation order to be dealt with by the civil court as opposed to the criminal court. Where this is done, the maximum punishment which can be passed for the breach is two months’ imprisonment (if the case is dealt with in a magistrates court) or two years’ imprisonment (where the case is dealt with in the county court).
Where a non-molestation order made before 1 July 2007 is breached, the matter will be dealt with by the family court which made the order initially.
In practice, the new system means that there is likely to be more severe treatment of perpetrators of of domestic violence. However, the criminalisation of such behaviour is regarded by some as being an inappropriate way to deal with the problem. There are also fears that it may deter some sufferers of domestic violence from bringing an action. One of the main issues in such cases is often the evidence for the abuse and it is intended that legal aid will only be given to defend such charges when the allegations are very serious. The defence against claims of abuse is often that the allegations are false and it is feared that miscarriages of justice may result – a particular issue where a criminal record is the outcome of a successful action.