What injunctions do
Injunctions are orders of court that prevent someone from doing something to the detriment of someone else, such as an infringement of rights or harm.
They are most commonly used to protect someone from domestic violence, whether that is the spouse or partner of the violent person, a child, or someone else.
However, injunctions can also be used in other ways, including in business circumstances.
Power of arrest
A power to arrest can be attached to an injunction by a judge. As the name suggests, it gives the police power to arrest the offending party if the injunction order is broken.
It is usually only given if the offender has been violent or has threatened to be violent, and there is a reasonable chance that violence will occur in the future.
Domestic violence injunctions
A non-molestation order prevents your ex-partner or someone else from harassing you, or your children after divorce or separation. It can also stop that person from interfering in any way with your daily life.
Harassment can take many forms. It might be obvious physical violence, such as hitting you, throwing objects at you, or spitting at you. It also might include nonphysical interaction such as shouting from across the street, or acts purposefully intended to distress you, such as leaving evidence that they have been at places you visit.
Non-molestation orders can be extended to include anyone else that your ex-partner might encourage to pester or disturb you.
An occupation order sets out who can live in the family home on a short-term basis after there has been violence or harassment.
They may be made in a number of situations:
- when a married couple have been living in the matrimonial home;
- where people are joint owners of the property
- where there is an agreement that one person may live in the property, or
- where alaw gives rights to the occupation.
An occupation order may:
- allow you to remain in your home if your partner tries to throw you out or prevents you from re-entering;
- exclude your partner from entering part or all of your home;
- set out rules about how you and your partner might live together in your home;
- prevent your partner from being within a certain distance of your home.
If you are not an owner of the property in which you live, and even if you have not paid towards the cost of the property, you may still be able to obtain an order that says that you are entitled to live there. You may have matrimonial rights or other rights to occupy it.
Matrimonial rights can be extended in situations where your partner dies or you divorce, i.e. where you cease being married. Your rights can be challenged by the partner in a court.
Common law injunctions
A common law injunction can be applied for by anyone in a relationship that is not marriage, for example:
- where an unmarried couple live or do not live together;
- where the relationship was one of friendship;
- where the relationship is one of family;
- where the person committing harrassment is a neighbour.
A common law injunction might be granted to prevent the other person from assaulting or harassing you. Their action must be serious enough such that it is to the detriment of your mental or physical health. It must also be intentional. It does not have to be physical – nuisance telephone calls or messages may also be prevented.
An injunction may prevent the other person from coming onto your property or interfering with your possessions. For this to happen, you might have to prove that you have rights to it. You might own the property, or be a tenant, or you might lease the possession.
An order might also prevent the other person from coming within a certain distance of your home, of your family's home, or your place of work.
Anti harassment injunctions
The Harassment Act 1997 makes harassment a criminal as well as a civil offence. It gives the police greater powers to arrest and to charge a harasser, and can be used instead of a common law injunction.
Harassment is defined as any behaviour that is intended to cause alarm or distress. It must happen on a repeated basis. If the harassment is stalking, you must be able to show that the behaviour is likely to lead to violence against you.
Harassment is not any action:
- that reasonably protects the person, or property;
- that prevents or helps the investigation of serious crime;
- in the national security or economic well-being of the UK;
- necessary to carry out a power given by another law.
The Act can be used to prevent behaviour by any party, including the media and protesters.
The Act allows the police to choose whether to prosecute the harrasser in the Magistrates Court or the Crown Court.
Someone found guilty of harassment in the Magistrates Court might be sentenced up to 6 months in prison and/or given up to £5,000 fine as well as an order preventing them from further harassing you.
In the Crown Court, someone might be sentenced up to 5 years in prison and/or be given a fine for an unlimited amount.
Alternatively, you might apply for an anti-harassment injunction from the civil courts such as the County Court. This allows you to claim compensation personally for distress or financial loss.
Unlike with common law injunctions, powers of arrest can only be added once the injunction has been broken. A warrant of arrest must be sought from the court and only then might the person be committed to prison.
An alternative to seeking a power of arrest might be to ask the police to arrest the person under criminal charges, and then take them to the criminal courts for judgement.
These injunctions must be applied for in the High Court and require you to pay your opponent's costs if you lose your case.
They may have a penal notice attached to them, which is a warning to the other side that they could be sent to prison if they break the order.
A freezing injunction prevents your opponent from selling, transferring, destroying, or passing to someone else your property. It can also require him or her to reveal to whom or to where property was transferred.
A freezing injunction does not prevent your opponent from withdrawing or transferring his or her own money.
An injunction can be granted to allow you to access your opponent's home or workplace, to search it, and to take evidence that might be important to another case in which you are both involved.
Search orders are difficult to obtain and are only granted in very important cases where there is definite proof that important evidence will be found. Once an order is made, it must be personally served on your opponent.
You make your application without your opponent knowing.
However it does not give you the right to force entry. If your opponent does not allow you into their home or workplace, then you must return to court and apply for their committal to prison.
Preventing someone from leaving the country
if your opponent owes more than £50, you can apply for an injunction to prevent them from leaving the country until they pay some money to the court, usually a sufficient amount to be confident that they will return.
Your opponents passport may be taken away from them. These types of injunctions are usually made together with freezing injunctions on assets.
A publication injunction prevents someone from publishing something about you.
An application is usually made in the High Court, but sometimes they can be made in the County Court. A penal notice can be attached, but a power of arrest cannot.
Publication injunctions are usually made where one party wishes to make public sensitive information about someone else, where that information is not in the public interest to know.
Under the Housing Act 1996, your local council housing association may apply for an injunction against council tenants who are causing a nuisance. These prevent the tenant from continuing the anti-social behaviour.
These types of injunction usually have a power of arrest attached.
If your landlord is harassing you, for example by deliberately preventing your quiet enjoyment of your property, you can apply for an injunction that will stop them from causing you nuisance. Typically, these types of injunctions do not come with a power of arrest.