Divisional Court
| Published date | 01 August 2011 |
| DOI | 10.1350/jcla.2011.75.4.710 |
| Date | 01 August 2011 |
| Subject Matter | Divisional Court |
Divisional Court
Restraining a Prosecution?
R (on the application of Smith) v Crown Prosecution Service [2010] EWHC
3593 (Admin)
Keywords Prosecution; Harassment; Restraining order; Abuse of power;
Offering no evidence
The claimant sought to have a decision to continue a prosecution
quashed and applied for a mandatory order to enforce an earlier agree-
ment by the prosecution to accept a restraining order of the claimant in
the absence of a conviction. The claimant had been charged with an
offence of harassment against his wife under s. 2 of the Protection from
Harassment Act 1997. The alleged offence occurred during the acri-
monious divorce proceedings between the claimant and his wife. Smith
pleaded not guilty at the plea and directions hearing. The prosecution
indicated that they would offer no evidence at trial and the district judge
asked the Crown and defence to consider whether the matter could be
resolved by a restraining order without a conviction.
A hearing was set on 24 February 2010 to discuss in open court
whether a restraining order following an offering of no evidence could
be pursued. Prior to this hearing the CPS indicated in a letter to the
claimant’s solicitor that the legislation did not permit this possibility.
However, at the directions hearing the matter took a different course.
The district judge presiding over the trial took the view that a restraining
order could be made where the prosecution offered no evidence neces-
sitating an acquittal. This view was made without hearing submissions
on the point. The claimant’s solicitor confirmed that Smith would sub-
mit to a restraining order following an acquittal. The prosecutor present
at this hearing appears to have contacted a senior prosecutor by tele-
phone during the hearing. She was informed that the restraining order
could be a possible disposal of the matter and that the prosecution would
consider any possible terms for the order. The prosecutor then indicated
to the court that she was willing to accept the offer of a restraining order
following an acquittal after the offering of no evidence.
The restraining order could not be made immediately as the claimant
was not present for the hearing that day (non-attendance being not
unusual for claimants at such hearings). The matter was listed again two
days later in order for the claimant to attend and it was ‘anticipated that
the parties would reach agreement if possible on the terms of the
restraining order’ ( at [8]).
At this hearing the CPS stated it no longer wished to accept the offer
of a restraining order and now stated that it wished to proceed with the
prosecution. The matter was adjourned again and at the subsequent
hearing the prosecution produced their reasons for refusing to accept
the restraining order. First, it was argued that according to CPS policy
256 The Journal of Criminal Law (2011) 75 JCL 256–263
doi:10.1350/jcla.2011.75.4.710
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