Court of Appeal
| Published date | 01 April 2011 |
| Date | 01 April 2011 |
| DOI | http://doi.org/10.1350/jcla.2011.75.2.687 |
| Subject Matter | Court of Appeal |
Court of Appeal
Post-acquittal Restraining Orders
Rv Major [2010] EWCA Crim 3016
Keywords Harassment; Restraining order; Civil proceedings;
Threshold
The appellant, M, was tried on indictment for the offence of putting a
person in fear of violence through harassment, contrary to s. 4 of the
Protection from Harassment Act 1997. After a five-day trial the jury
acquitted M of that offence, but could not decide on a verdict for the
alternative offence under s. 2 of the 1997 Act. The recorder discharged
the jury from reaching its verdict on this offence.
Upon invitation from counsel for the Crown the recorder made a
restraining order on acquittal, as permitted under s. 5A of the 1997 Act.
M appealed contending that a restraining order on acquittal should only
be made where there is uncontested evidence upon which it can be
based, otherwise this could contradict the decision of a jury. In the
alternative, counsel argued that the recorder did not state on what
factual basis he made the order.
H
ELD
,
ALLOWING THE APPEAL
, it would be wrong to state that an order
on acquittal could only be made where there is uncontested evidence, as
to do so would be to contradict the will of Parliament. However, it is
clear that the court must always, in open court, state on what factual
basis a person is being sentenced. Here there was no indication what this
factual basis was, and thus it was not possible to assess whether the order
should have been made. Accordingly the Court of Appeal quashed the
order.
C
OMMENTARY
The Court of Appeal notes that this is the first occasion on which it has
had to consider the making of a restraining order following an acquittal
and therefore this case provides some important insights. The first point
is, of course, jurisdiction. Restraining orders following acquittal are civil
proceedings (governed by Part 50 of the Criminal Procedure Rules 2010
(SI 2010 No. 60), discussed by the court at [5]), but s. 5A(5) of the 1997
Act states that a person made subject to the order may appeal an order
as if he had been convicted and a restraining order under s. 5 had been
imposed. Accordingly, the correct avenue for an appeal is, where the
matter was heard on indictment, the Court of Appeal (Criminal Divi-
sion). The Criminal Defence Service (General) (No. 2) Regulations 2001
(SI 2001 No. 1437), as amended, state that for the purposes of repre-
sentation, they are considered to be criminal proceedings.
As a civil order it is clear that the standard of proof for making the
order is the civil standard. In Re B (Children) [2009] 1 AC 11, the House
of Lords was clear that there is only one standard for civil proceedings,
the preponderance of probabilities and, accordingly, this is the threshold
94 The Journal of Criminal Law (2011) 75 JCL 94–114
doi:10.1350/jcla.2011.75.2.687
that the judge should use. The consequences of this are, as the Court of
Appeal notes, that it is quite possible that conduct which was not proven
to the criminal standard as harassment could, applying the civil stand-
ard, demonstrate a need for the order (at [15]). This would not contra-
dict the decision of a jury and would not suggest that a person was
guilty.
The court rejected a suggestion that a comparison could be drawn to
the system of binding a defendant over (at [12]). Counsel for the
appellant had argued that a restraining order on acquittal should rarely
be imposed where the acquittal was on its merits. Counsel suggested
that an order should only be imposed where there was uncontested
evidence and suggested to do otherwise could breach Article 6(2) of the
European Convention on Human Rights (presumption of innocence).
Counsel adduced in support of this contention the case of Minelli v
Switzerland (1983) 5 EHRR 554, but the court observed (at [12]) that this
was a decision where a court refused to refund costs believing that a
person was, in fact, guilty. That is not the case here. It is not that a judge
decides that a person is guilty, indeed orders under s. 5A could be
imposed where it is the judge that orders an acquittal, but rather they
are imposed where the judge believes that the threshold criteria are met.
This does not undermine the presumption of innocence, not least be-
cause it is not a criminal matter (although the use of civil orders that
have criminal consequences continues to remain controversial).
The threshold for an order is contained within s. 5A(1) which states
that a court may make an order ‘if it considers it necessary to do so to
protect a person from harassment by the defendant’. This does not
require that there is proof that harassment has already happened: s. 5A
is directed towards future harm (at [16]). It is necessary that the court is
satisfied to the civil standard that the defendant will harass a victim in
the future. This provides an additional reason why a jury acquittal
cannot prevent a person from being the subject of an order since it is
quite possible that the evidence did not show that a person has already
been harassed, but it may show that it is highly likely harassment will
occur in the future.
The second ground of appeal was more successful for the appellant. A
very simple question was posed: ‘is a judge required to identify the
factual basis for imposing an order?’ (at [17]). The Court of Appeal
replied without hesitation that the answer is ‘yes’. The court stated (at
[18]) that whilst an order is not a sentence of the court (since the person
is acquitted) it is implied within s. 174(1) of the Criminal Justice Act
2003 and the Consolidated Criminal Practice Direction [2007] 2 Cr App R 20
that reasons must be given. Clearly this must be correct. It is important
that a person is aware of why an order is being imposed on him,
especially since breach of the order is a criminal offence. Similarly, the
public at large must be satisfied that justice is being done and this means
that everyone is clear on what basis a person is being the subject of a civil
order. Indeed, it is submitted that it is required by the wording of
s. 5A(1). It will be remembered from the preceding paragraph that the
threshold is that it is ‘necessary’ to impose an order. The courts have
Post-acquittal Restraining Orders
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