Breach of protective order
Triable either way
Maximum when tried summarily: Level 5 fine and/or 6 months
Maximum when tried on indictment: 5 years
Where the conduct is particularly serious, it would normally be charged as a separate offence. These starting points are based on the premise that the activity has either been prosecuted separately as an offence or is not of a character sufficient to justify prosecution of it as an offence in its own right.
Where offence committed in domestic context, refer to guidance
This guideline and accompanying notes are taken from the Sentencing Guidelines Council’s definitive guideline Breach of a Protective Order, published 7 December 2006 Aims of sentencing
- The main aim of sentencing for breach of a protective order (which would have been imposed to protect a victim from future harm) should be to achieve future compliance with that order.
- The court will need to assess the level of risk posed by the offender. Willingness to undergo treatment or accept help may influence sentence.
- The nature of the conduct that caused the breach of the order. In particular, whether the contact was direct or indirect, although it is important to recognise that indirect contact is capable of causing significant harm or anxiety.
- There may be exceptional cases where the nature of the breach is particularly serious but has not been dealt with by a separate offence being charged. In these cases the risk posed by the offender and the nature of the breach will be particularly significant in determining the response.
- The nature of the original conduct or offence is relevant in so far as it allows a judgement to be made on the level of harm caused to the victim by the breach, and the extent to which that harm was intended.
- The sentence following a breach is for the breach alone and must avoid punishing the offender again for the offence or conduct as a result of which the order was made.
- It is likely that all breaches of protective orders will pass the threshold for a community sentence. Custody is the starting point where violence is used. Non-violent conduct may also cross the custody threshold where a high degree of harm or anxiety has been caused.
- Where an order was made in civil proceedings, its purpose may have been to cause the subject of the order to modify behaviour rather than to imply that the conduct was especially serious. If so, it is likely to be disproportionate to impose a custodial sentence if the breach of the order did not involve threats or violence.
- In some cases where a breach might result in a short custodial sentence but the court is satisfied that the offender genuinely intends to reform his or her behaviour and there is a real prospect of rehabilitation, the court may consider it appropriate to impose a sentence that will allow this. This may mean imposing a suspended sentence order or a community order (where appropriate with a requirement to attend an accredited domestic violence programme).
Offence seriousness (culpability and harm)
A. Identify the appropriate starting point
Starting points based on first time offender pleading not guilty
|Examples of nature of activity||Starting point||Range|
|Single breach involving no/minimal direct contact||Low level community order||Band C fine to medium level community order|
|More than one breach involving no/minimal contact or some direct contact||Medium level community order||Low level community order to high level community order|
|Single breach involving some violence and/or significant physical or psychological harm to the victim||18 weeks custody||13 to 26 weeks custody|
|More than one breach involving some violence and/or significant physical or psychological harm to the victim||Crown Court||26 weeks custody to Crown Court|
|Breach (whether one or more) involving significant physical violence and significant physical or psychological harm to the victim||Crown Court||Crown Court|
|Fine Band A||50% of relevant weekly income||25 – 75% of relevant weekly income|
|Fine Band B||100% of relevant weekly income||75 – 125% of relevant weekly income|
|Fine Band C||150% of relevant weekly income||125 – 175% of relevant weekly income|
|Fine Band D||250% of relevant weekly income||200 – 300% of relevant weekly income|
|Fine Band E||400% of relevant weekly income||300 – 500% of relevant weekly income|
|Fine Band F||600% of relevant weekly income||500 – 700% of relevant weekly income|
The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). See below for non-exhaustive examples of requirements that might be appropriate in each.
At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so. For further information see the Imposition guideline.
A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate
In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary
Offences that obviously fall within the community order band
Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances
More intensive sentences which combine two or more requirements may be appropriate
Suitable requirements might include:
Suitable requirements might include:
Suitable requirements might include:
* If order does not contain a punitive requirement, suggested fine levels are indicated below:
BAND A FINE
BAND B FINE
BAND C FINE
The approach to the imposition of a custodial sentence should be as follows:
1) Has the custody threshold been passed?
- A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
- There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
- The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.
2) Is it unavoidable that a sentence of imprisonment be imposed?
- Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
- For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
3) What is the shortest term commensurate with the seriousness of the offence?
- In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.
4) Can the sentence be suspended?
- A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.
The following factors should be weighed in considering whether it is possible to suspend the sentence:
Factors indicating that it would not be appropriate to suspend a custodial sentence
Factors indicating that it may be appropriate to suspend a custodial sentence
Offender presents a risk/danger to the public
Realistic prospect of rehabilitation
Appropriate punishment can only be achieved by immediate custody
Strong personal mitigation
History of poor compliance with court orders
Immediate custody will result in significant harmful impact upon others
The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.
Whenever the court reaches the provisional view that:
- the custody threshold has been passed; and, if so
- the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;
the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.
Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.
For further information and sentencing flowcharts see the Imposition guideline.
B. Consider the effect of aggravating and mitigating factors (other than those within examples above)
The following may be particularly relevant but these lists are not exhaustive
Factors indicating higher culpability
- Proven history of violence or threats by the offender
- Using contact arrangements with a child to instigate offence
- Offence is a further breach, following earlier breach proceedings
- Offender has history of disobedience to court orders
- Breach committed immediately or shortly after order made
Factors indicating greater degree of harm
- Victim is particularly vulnerable
- Impact on children
- Victim is forced to leave home
Factors indicating lower culpability
- Breach occurred after long period of compliance
- Victim initiated contact
- Offence committed whilst on bail for other offences
- Failure to respond to previous sentences
- Offence was racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
- Offence motivated by, or demonstrating, hostility based on the victim’s disability (or presumed disability)
- Previous conviction(s), particularly where a pattern of repeat offending is disclosed
- Planning of an offence
- An intention to commit more serious harm than actually resulted from the offence
- Offenders operating in groups or gangs
- ‘Professional’ offending
- Commission of the offence for financial gain (where this is not inherent in the offence itself)
- High level of profit from the offence
- An attempt to conceal or dispose of evidence
- Failure to respond to warnings or concerns expressed by others about the offender’s behaviour
- Offence committed whilst on licence
- Offence motivated by hostility towards a minority group, or a member or members of it
- Deliberate targeting of vulnerable victim(s)
- Commission of an offence while under the influence of alcohol or drugs
- Use of a weapon to frighten or injure victim
- Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
- Abuse of power
- Abuse of a position of trust
- Multiple victims
- An especially serious physical or psychological effect on the victim, even if unintended
- A sustained assault or repeated assaults on the same victim
- Victim is particularly vulnerable
- Location of the offence (for example, in an isolated place)
- Offence is committed against those working in the public sector or providing a service to the public
- Presence of others e.g. relatives, especially children or partner of the victim
- Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence)
- In property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (e.g. where the theft of equipment causes serious disruption to a victim’s life or business)
- A greater degree of provocation than normally expected
- Mental illness or disability
- Youth or age, where it affects the responsibility of the individual defendant
- The fact that the offender played only a minor role in the offence
Form a preliminary view of the appropriate sentence, then consider offender mitigation
- Genuine remorse
- Admissions to police in interview
- Ready co-operation with authorities
Consider a reduction for a guilty plea
Consider ancillary orders
View guidance on available ancillary orders.