What happens at court?
Your solicitor may either act on your behalf in person, or appoint a barrister to represent you in court.
In a without notice application, where the alleged offender is not present, or aware of the action, your solicitor or barrister will show your statement to the judge and it is unlikely that you will have to say anything. It is likely that the Judge will order a further hearing after making an order for your protection and the offending party will be notified of this hearing.
In an application on notice, where the alleged offender has prior notice of the Court proceedings, what happens will depend on what that person chooses to do:
- If the offender fails to turn up, an order may be made in his/her absence.
- If the offender does come to court he may be prepared to give `undertakings' to the judge.
Undertakings are formal promises made to the court by the offender which can be enforced in a similar way to a court order.
The offender promises not to be violent nor harass you in the future and so the judge does not have to hear the evidence to decide who he believes is telling the truth.
No power of arrest can be attached to these undertakings. If a person breaks his promise, it is punishable as contempt of court with a fine and/or up to 2 years imprisonment.
If the offender is unwilling to give undertakings then the Court will have to hear evidence from both of you before making any order. In serious cases of violence or threatened violence, even if the offender offers an undertaking, the court can refuse to accept the undertaking and still make an order.
Will I have to give evidence and be cross examined?
In our experience this would be unusual. In most cases your sworn statement of evidence is sufficient.
Does going to court necessarily mean that the offender will face police prosecution?
Not necessarily, but possibly. The form of protection you will need is called an injunction which is obtained in the family court, where civil (not criminal) proceedings are heard. However, the police may in any event decide to prosecute as well. In this case the police will take a statement from you and, working with a government body called the crown prosecution service, they will decide whether to start criminal proceedings in the magistrates' court.
If a specific criminal offence such as assault or Grievous Bodily Harm has occurred, the Crown Prosecution Service may decide to bring criminal proceedings at the same time as you seek an injunction, although your wishes will be relevant in their decision. Under the new Domestic Violence Crime and Victims Act, a breach of a non-molestation injunction is now also a criminal offence.
A criminal conviction for assault, whilst punishing the offender, will not give you the protection of a court order forbidding further violence.
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