PART 1General
Citation, commencement and extentI11
1
These Regulations may be cited as the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014 and come into force on 11th January 2015.
2
These Regulations extend to England and Wales.
Interpretation – generalI22
1
In these Regulations—
“central authority”, in relation to a member State other than the United Kingdom, means an authority designated by the State as a central authority for the purposes of the Directive;
“the central authority for England and Wales” means the Lord Chancellor;
“competent authority”, in relation to a member State other than the United Kingdom, means an authority designated by the State as a competent authority for the purposes of the Directive;
“the Directive” means Directive 2011/99/EU of the European Parliament and of the Council of 13th December 2011 on the European protection order3;
“notify” means notify in writing (and “notification” is to be read accordingly).
2
References in these Regulations to the Crown Court, the High Court, the Court of Appeal or a magistrates’ court include references to a judge of such a court or a justice of the peace and a judge or justice having powers to act in connection with proceedings before such a court.
PART 2Making a European protection order in England and Wales: requests to other member States to recognise the order
Interpretation – Part 2I33
1
In this Part—
“European protection order” has the meaning given by regulation 4(9);
“protected person” means the individual who is the object of the protection given by a protection measure;
“protection measure” means a decision or order of a court in England and Wales when dealing with a criminal cause or matter, in which one or more of the following prohibitions or restrictions are placed on an individual—
- a
a prohibition from entering certain localities, places or defined areas where the protected person resides or visits;
- b
a prohibition or restriction of contact with the protected person by any means (including by telephone, post, facsimile transmission or electronic mail);
- c
a prohibition or restriction preventing the individual from approaching the protected person whether at all or to within a particular distance;
- a
“relevant court”, in relation to a protection measure, means—
- a
if the protection measure was made in the Crown Court and the request for the making of a European protection order is made at the same hearing at which the protection measure is made, the Crown Court; or
- b
in any other case, a magistrates’ court;
- a
“specified information” means the information required by Article 7 of the Directive to be included on the form set out in Annex I to the Directive, except for any information relating to Framework Decision 2008/947/JHA of 27th November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions4.
2
References in this Part to “the executing State” are to be construed in accordance with regulation 4(5).
Power of a court to make a European protection orderI44
1
This regulation applies where a magistrates’ court, the Crown Court, the High Court or the Court of Appeal has made a protection measure.
2
A relevant court may make an order under this regulation where the following conditions are met.
3
The first condition is that the protected person requests the making of an order under this regulation in accordance with regulation 5.
4
The second condition is that the protection measure has not expired.
5
The third condition is that the court is satisfied that the protected person has decided to reside or stay or is already residing or staying in a member State other than the United Kingdom (“the executing State”).
6
When deciding whether to make an order under this regulation, the relevant court must take into account—
a
the length of the period or periods that the protected person intends to reside or stay in the executing State;
b
the seriousness of the need for protection of the protected person while residing or staying in the executing State;
c
such other matters as it considers appropriate.
7
An order under this regulation may not have effect for a period longer than the period for which the protection measure has effect.
8
An order under this regulation may not contain a prohibition or restriction of a kind not mentioned in the definition of “protection measure” in regulation 3(1).
9
An order under this regulation is referred to in the rest of this Part as a “European protection order”.
Applications for a European protection orderI55
1
A request for a European protection order may be made to—
a
a relevant court; or
b
the competent authority of the executing State.
2
Where a request for a European protection order is made to the competent authority of the executing State and transferred by that State to the central authority for England and Wales, it must be treated for the purposes of this regulation as if it were a request made to a magistrates’ court under paragraph (1)(a).
3
A request under paragraph (1) may be made by the protected person or by a guardian or other representative on the protected person’s behalf.
Form and content of the European protection orderI66
A European protection order must be in the form set out in Annex 1 to the Directive and contain the specified information.
Duty to inform a protected person of the possibility of a European protection orderI77
Where a magistrates’ court, the Crown Court, the High Court or the Court of Appeal has made a protection measure, it must ensure that the protected person (or, where appropriate, the guardian or representative of the protected person) is—
a
informed in an appropriate way of the possibility to request a European protection order if the person decides to reside or stay in another member State and of the basic conditions for making such a request; and
b
advised to submit a request for a European protection order before leaving the United Kingdom.
Duty to inform a protected person about remedies if a request is refusedI88
If the relevant court refuses to make a European protection order it must inform the protected person (or, where appropriate, the guardian or representative of the protected person) of any applicable legal remedy that may be available against the decision.
Notifying the executing State of the European protection orderI99
1
The court which makes a European protection order must notify the competent authority of the executing State of the European protection order by giving the documents specified in paragraph (2) to that authority.
2
The documents are—
a
a copy of the form containing the European protection order; and
b
a copy of the form translated into—
i
the official language, or one of the official languages, of the executing State; or
ii
an official language of the European Union if the executing State has declared under Article 17 of the Directive that it will accept a translation in that language.
Renewing, modifying or revoking a protection measure and related European protection orderI1010
1
This regulation applies where a magistrates’ court, the Crown Court, the High Court or the Court of Appeal makes a decision renewing, modifying or revoking a protection measure in relation to which a European protection order was made.
2
The revocation of the protection measure has the effect of revoking the European protection order.
3
Subject to paragraph (4), if the court modifies one or more of the prohibitions or restrictions placed on an individual under a protection measure, the court must—
a
amend the European protection order to the like extent; and
b
complete the form set out in Annex I to the Directive with the specified information.
4
The modified European protection order may not contain a prohibition or restriction of a kind not mentioned within the definition of “protection measure” in regulation 3(1).
5
If the court renews a protection measure it—
a
may amend the European protection order; and
b
where it does so, must complete the form set out in Annex I to the Directive with the specified information.
6
The court must, without delay, inform the competent authority of the executing State—
a
if paragraph (2) applies, that the European protection order is revoked;
b
if paragraph (3) or (5) applies, of the decision modifying or renewing the protection measure.
7
Where the court modifies or renews the European protection order, it must send to the competent authority of the executing State—
a
the modified or renewed order; and
b
where necessary, a copy of the form translated in accordance with regulation 9(2)(b).
PART 3Recognition in England and Wales of a European protection order made in a member State other than the United Kingdom
Interpretation – Part 3 and the ScheduleI1111
1
In this Part and in the Schedule—
“European protection order” has the meaning given by Article 2 of the Directive, where the decision taken was one taken by a competent authority of a member State other than the United Kingdom;
“person causing danger” has the meaning given by Article 2 of the Directive;
“protected person” means the individual who is the object of the protection resulting from a protection measure adopted by a competent authority of a member State other than the United Kingdom;
“protection measure”, except as mentioned in regulation 12(6)(b) and (7), has the meaning given by Article 2 of the Directive.
2
References in this Part to “the issuing State” are to be construed in accordance with regulation 12(1).
Requests from other member States to recognise a European protection orderI1212
1
This regulation applies if a competent authority of a member State other than the United Kingdom (“the issuing State”)—
a
makes a European protection order; and
b
makes a request for the recognition of the European protection order under the Directive.
2
The competent authority of the issuing State makes a “request for the recognition of the European protection order under the Directive” if it or the central authority of the issuing State gives to the central authority for England and Wales the following documents—
a
the European protection order or a copy of it, in the form set out in Annex I to the Directive; and
b
if the form is not in English, a copy of the form translated into English.
3
The central authority for England and Wales must give those documents to a magistrates’ court.
4
The magistrates’ court must decide, without undue delay, whether any of the grounds for refusal to give effect to a European protection order in the Schedule apply.
5
If the magistrates’ court decides that none of the grounds for refusal applies, it must give effect to the order under regulation 13.
6
Subject to regulation 14, if the magistrates’ court decides that one or more of the grounds for refusal in the Schedule applies, it may refuse to recognise the European protection order and, where it does so, it must—
a
without undue delay, ensure that the competent authority of the issuing State and the protected person are informed that it has decided not to recognise the European protection order and of the grounds for doing so;
b
where appropriate, ensure that the protected person is informed of the possibility of applying for a protection measure under the law of England and Wales;
c
ensure that the protected person is informed of any applicable legal remedy that may be available against the decision under the law of England and Wales.
7
In paragraph (6)(b), “protection measure” is to be construed in accordance with regulation 3(1).
8
Where a guardian or other representative is acting on the protected person’s behalf, references in paragraph (6) to the protected person are to be read instead as references to the guardian or other representative.
Giving effect in England and Wales to a European protection orderI1313
1
This regulation applies where a magistrates’ court is required under regulation 12 to give effect to a European protection order.
F12
The magistrates' court must give effect to the order by making a restraining order under section 360 of the Sentencing Code; and Chapter 3 of Part 11 of that Code has effect for the purposes of this regulation as if—
a
for subsection (2) of that section there were substituted—
2
The court may, subject to subsection (2A), make a restraining order under this section against a person causing danger for the purpose of protecting a protected person under the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014 (“the 2014 Regulations”).
2A
The prohibitions or restrictions imposed on a person under subsection (2) must correspond as far as possible to those contained in the European protection order made by the competent authority of the issuing State.
b
after subsection (3) of that section there were inserted—
4
In this section—
“European protection order”, “person causing danger” and “protected person” have the meaning given by regulation 11(1) of the 2014 Regulations;
“issuing State” is to be construed in accordance with regulation 12(1) of those Regulations.
c
sections 361 and 362 of the Sentencing Code were omitted.
Procedural requirements relating to the making of a restraining orderI1414
1
If the magistrates’ court considers that the ground for refusal mentioned in paragraph 1(a) of the Schedule applies, it must, before taking a decision refusing to recognise the European protection order under regulation 12—
a
without delay, notify the competent authority of the issuing State that the information provided is incomplete; and
b
request that competent authority to provide the missing information, specifying a reasonable period for it do so.
2
Where under paragraph (1)(b) the magistrates’ court has specified a period within which the missing information must be provided, the decision whether or not to recognise the European protection order must be taken—
a
where the missing information is received by the court within the specified period, without undue delay after its receipt;
b
in any other case, without undue delay after the specified period ends.
3
Where the magistrates’ court has made a restraining order under regulation 13, it must ensure that the following are informed of the terms of the restraining order and the possible legal consequences of a breach of the restraining order—
a
the person causing danger;
b
the competent authority of the issuing State; and
c
the protected person (or, where appropriate, the guardian or representative of the protected person).
4
The court must not provide the person causing danger with the address or contact details of the protected person unless the disclosure of those details is necessary to enable the person causing danger to comply with the order.
Request for a European protection order from a protected person where the protection measures relate to a member State other than the United KingdomI1515
1
This regulation applies where a protected person makes a request for a European protection order to the central authority for England and Wales.
2
The central authority for England and Wales must as soon as possible send the request to the competent authority of the member State to which the protection measure relates.
Notification of breach of a European protection orderI1616
1
The central authority for England and Wales must notify the competent authority of the issuing State, using the form set out in Annex II to the Directive, if it becomes aware of a breach of a restraining order made under these regulations.
2
When sending a notification under paragraph (1), the central authority must send a copy of the form translated into the official language, or one of the official languages, of the issuing State, or an official language of the European Union if the issuing State has declared under Article 17 of the Directive that it will accept a translation into that language.
Modification of the European protection order (and giving effect to a modified order)I1717
1
This regulation applies where—
a
the competent authority of the issuing State has modified a European protection order (“the modified EPO”); and
b
it or the central authority of the issuing State has sent the following documents to the central authority for England and Wales—
i
the modified EPO or a copy of it, in the form set out in Annex I to the Directive; and
ii
if the form is not in English, a copy of the form translated into English.
2
The central authority for England and Wales must give a magistrates’ court a copy of the modified EPO.
3
The magistrates’ court must, without undue delay, give effect to the modified EPO unless—
a
the modified prohibition or restriction is not of a kind mentioned in Article 5 of the Directive; or
b
the information provided in the modified EPO is incomplete.
4
Where paragraph (3)(b) applies, the magistrates’ court must without delay—
a
notify the competent authority of the issuing State that the information provided is incomplete; and
b
request the authority to provide the missing information, specifying a reasonable period for it to do so.
5
Where, under paragraph (4)(b), the magistrates’ court has specified a period within which the missing information must be provided and the missing information is received by the court within the specified period, the court must (unless paragraph (3)(a) applies), without undue delay, give effect to the modified European protection order.
6
Where the magistrates’ court is required by paragraph (3) or (5) to give effect to the modified EPO, it must vary the restraining order made under F3section 360 of the Sentencing Code to which the person causing danger is subject (by virtue of regulation 13) by making a further order under that section.
7
F2section 361 of the Sentencing Code has effect for the purposes of the variation of a restraining order under this regulation as it has effect for the purposes of regulation 13 (and see in particular regulation 13(2)).
8
Where a magistrates’ court varies a restraining order under this regulation, regulation 14(3) and (4) apply to the court as they apply to a magistrates’ court which has made a restraining order under regulation 13.
Revocation of the European protection orderI1818
1
This regulation applies where—
a
the competent authority of the issuing State has revoked or withdrawn a European protection order; and
b
the competent authority of the issuing State has notified the central authority for England and Wales of the revocation or withdrawal.
2
The central authority for England and Wales must, as soon as possible, notify a magistrates’ court of the revocation or withdrawal of the European protection order.
3
When notified under paragraph (2), the magistrates’ court must, as soon as possible, discharge the restraining order which was made for the purpose of giving effect to the European protection order.
Discharging a restraining order made under these regulationsI1919
1
A magistrates’ court may, in any of the cases mentioned in paragraph (2), discharge a restraining order made under these regulations—
a
on an application made by the protected person or by a guardian or other representative on the protected person’s behalf;
b
on an application by the person causing danger; or
c
of the court’s own motion.
2
The cases referred to in paragraph (1) are where—
a
the court is satisfied that the protected person is not residing or staying in England or Wales;
b
the competent authority of the issuing State has modified a European protection order and none of the prohibitions or restrictions contained in the modified order is of a kind mentioned in Article 5 of the Directive;
c
the competent authority of the issuing State has modified a European protection order and the information provided in the modified order—
i
is incomplete; and
ii
is not completed within the period specified by the magistrates’ court under regulation 17(4)(b);
d
in relation to the person causing danger, the competent authority of the issuing State makes a request for monitoring of supervision measures under regulation 85 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 20146 (“the Protocol No. 36 Regulations”) and a magistrates’ court decides to recognise the decision on supervision measures under paragraph (5) of that regulation.
3
Where, in the exercise of this regulation, a magistrates’ court discharges a restraining order, it must immediately ensure that the competent authority of the issuing State and, where possible, the protected person are informed of the decision.
4
In this regulation, “request for monitoring of supervision measures” is to be read in accordance with regulation 85(2) of the Protocol No. 36 Regulations.