Major, R v

MR JUSTICE GRIFFITH WILLIAMS: Tara Major was charged on an indictment with an offence of putting a person in fear of violence through harassment, contrary to section 4 of the Protection from Harassment Act 1997 ["the Act"]. At the end of a five day trial at Maidstone Crown Court she was acquitted of count 1, but the jury could not agree on its verdict on the alternative offence of harassment contrary to section 2 of the Act and was discharged from giving a verdict in respect of it.

The trial judge (Mr Recorder George QC) at the invitation of the prosecution, then made a restraining order on acquittal pursuant to the provisions of section 5A of the Act.

Her application to appeal sentence has been referred to the full court by the Registrar. We grant leave.

We consider first the relevant parts of the Act. Protection from Harassment Act 1997:

Although a restraining order on acquittal is a Civil Behavioural Order - see Part 50 of the Civil Procedure Rules 2010 - a right of appeal to this court is provided for in section 5A(5) and Regulation 3(2)(p) of the Criminal Defence Service (General) (No 2) Regulations 2001 (as amended) provides that: "... proceedings under section 5A of the Protection from Harassment Act 1997 relating to restraining orders on acquittal... " are orders made in "criminal proceedings" and so the Court of Appeal or the Registrar has power to grant a representation order in respect of an application for permission to appeal or an appeal from such an order.

As this is the first occasion that a restraining order following acquittal has been considered by this court, our attention has been drawn by the Registrar to regulation 3(2)(q) which provides that:

We consider that the absence of any mention in sub-paragraph (p) to the Crown Court or the Court of Appeal is of no consequence in the light of the clear wording of section 5A(2), section 5(6) and section 5A(4) of the Act which provide the same right of appeal where restraining orders are made on acquittal as in cases where they are made following conviction.

S was at the material time a 16-year-old student who kept a horse at a stable in Leysdown, where the appellant also kept her horse. Her younger sister and the appellant's daughter had been friends and their respective families got on well, but relations deteriorated following a complaint by the appellant about her daughter being bullied. S alleged that on a number of occasions, starting in the summer holidays of 2008 and ending on 28th October 2008, the appellant was threatening and abusive towards her, on occasions causing her distress. She said that she was called a "slag" and a "slut" and on 2nd October 2008 the appellant told her that she was going to get people to beat her up. On that same occasion she told S that her father was a paedophile. There were broadly speaking six separate incidents. A total of five witnesses gave evidence for the prosecution to confirm in part the allegations made by S. Interviewed under caution the appellant denied the allegations which she described as ridiculous. She said that she and her daughter would go out of their way to avoid S and her family and alleged that S had thrown stones at her car damaging it. The appellant gave evidence to that effect and called a number of witnesses who confirmed various details of her account.

To convict the appellant of the section 4 offence the jury had to be sure that she pursued a course of conduct and so there must have been at least two occasions which harassed S and which she knew or ought to have known amounted to harassment of S. In the context of this case the harassment was a course of conduct directed at S which was calculated to cause her alarm and distress. To convict the jury had to be sure additionally that the appellant's conduct caused S to fear that violence would be used against her. The acquittal of the appellant may well be explained by the jury's conclusion that there was only the one occasion on 2nd October 2008 when there was a direct threat of violence.

After the jury had acquitted the appellant of the section 4 offence and been discharged from returning a verdict on the alternative section 2 offence, the Recorder heard submissions from Mr Johnson (counsel for the appellant). Mr Johnson accepted that as Parliament clearly intended that a restraining order could be made following an acquittal, it was difficult for him to argue that the making of an order would be unfair. But he submitted that the court should be cautious about making an order which risked contradicting the verdict of the jury. He submitted that an order should only be made if there was clear evidence of harassment. The Recorder then said:

The grounds of appeal are (1) that the learned Recorder erred in law by imposing a restraining order where the uncontested facts of the case did not provide foundation for such an order and (2) that alternatively the learned Recorder erred in law by imposing a restraining order without making a finding as to the factual basis for imposing that order.

Mr Johnson, for whose concise and cogent submissions this court is grateful, submitted that the power to make a restraining order on acquittal is unique because unlike a bind over order it can be made without the consent of the defendant. In his skeleton argument he submitted, citing R v Middlesex Crown Court ex parte Khan [1997] 161 JP 240, that like a binding over order it should be used rarely where there has been an acquittal on the merits. He submitted that where there has been an acquittal on the merits a restraining order should be made only when there is uncontested evidence to justify it, so as to respect the verdict of the jury. He submitted that in this case there was no uncontested evidence upon which an order could be based. He submitted that the making of such an order breaches the appellant's Article 6(2) rights and cited Minelli v Switzerland 5 EHRR 54 at paragraph 37, but we observe that that was a decision in which an acquitted defendant had been refused his costs on grounds which reflected the court's opinion that he was in fact guilty. In this case the Recorder explained and indeed emphasised that the order was in no way a reflection of the guilt of the appellant.

We cannot accept that an order may only be made on uncontested facts or used only rarely. That would be to ignore the will of Parliament that provided there is a need to protect a victim a restraining order should be made. The Act was intended to build on the provisions of section 4(1)(a) and section 5 of the Public Order Act 1986 which were intended to address the menace of stalking, although it was intended to provide protection as well from disruptive neighbours and those who targeted people because of the colour of their skin: see Director of Public Prosecutions v Dziurzynski [2002] EWHC 1380 (Admin) at paragraphs 27 and 28; but the sanctions required a conviction. Section 5A(1) of the Act was inserted to deal with those cases where there is clear evidence that the victim needs protection but there is insufficient evidence to convict of the particular charges before the court. The victim need not have been blameless and the court's added powers avoid the need for alternative proceedings to protect the victim, added costs and delay.

A restraining order on acquittal may prohibit the defendant doing acts that were not the subject matter of the charge in respect of which he or she was acquitted - see section 5A(1) - and the parties may adduce further evidence relevant to the court's determination as to whether it was necessary to make such an order - see section 5(3) and the Criminal Procedure Rules 50.4(2). These provisions in many respects anticipated the overriding objective of the Criminal Procedure Rules.

The fact that a jury was not sure that the conduct alleged amounted to harassment is not necessarily a ground for concluding that there is no risk of harassment in the future. The section is silent as to the standard of proof which must be satisfied before an order may be made, but the order is a civil order and so the ordinary civil standard of proof applies. Applying that standard a court may well conclude that whereas the conduct alleged has not been proved to the required criminal standard, it has been proved on the balance of probabilities and such a conclusion would not contradict the verdict of a jury or implicitly suggest that the defendant was in fact guilty.

Section 5A addresses a future risk, the evidential basis for such an assessment being the conduct of the defendant. The evidence as to that will usually be the evidence given at trial, but it can be further evidence (see above). The evidence does not have to establish on the balance of probabilities that there has been harassment. It is enough if the evidence establishes conduct which falls short of harassment but which may well in the judgment of the sentencing judge, if repeated, amount to harassment, so making an order necessary. Compliance by a defendant with bail conditions which prohibited conduct with the victim, while a consideration, may not be a ground for not making an order. A court may conclude that compliance with the bail conditions was explained by the defendant's concerns that he or she may be remanded in custody and that without such a sanction the victim would be at risk. For all those reasons, we reject the first ground of appeal.

Is a judge required to identify the factual basis for imposing an order? In short, yes. These proceedings are no different to any other proceedings leading to sentence where the factual basis has to be established and the sentencing judge has to exercise a judgment on the facts. It must not be overlooked that absent a conviction it may not be possible to determine the factual basis for the order.

We observe that whilst a restraining order made on acquittal pursuant to section 5A of the Act is not a sentence, section 174(1) of the Criminal Justice Act 2003 provides that any court passing sentence must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed. We observe also that in respect of binding over orders, the Consolidated Criminal Practice Direction at III.31.4 provides that a court making a binding over order should state its reasons for so doing. In our judgment the requirements of that section and the Consolidated Criminal Practice Direction should be applied when restraining orders on acquittal are made. We observe also that it may be, save in the clearest of cases, to ensure that an impression is not given that the judge is going behind the verdict of the jury, that the judge may want to consider whether the case should be adjourned to the following day so that the matter can be fully considered and reasons for his or her decision given.

We turn to consider whether the reasons given by the Recorder in this case were sufficient. He had the undoubted advantage as the trial judge of having heard the evidence and there can be no doubt that upon that evidence he was clearly satisfied that S, whilst still a young person, needed to be protected from further harassment leading to alarm and distress. But there were, as we indicated earlier in this judgment, a number of allegations, all of which were challenged and in respect of all of which it was said had been made maliciously. We do not know on what particular aspects of the case the Recorder relied and although it would appear that he applied the civil standard of proof that is not readily apparent from his remarks.

While there may well have been good reasons for making the order, in our judgment they are not apparent from the Recorder's remarks and we can therefore reach no conclusion as to whether or not the making of the order in this case was in fact justified. It follows that the second ground of appeal is made out and we quash the restraining order. To that extent the appeal succeeds.

We would add our concerns about the terms of the proforma restraining order used in the Crown Court where orders under section 5A(1) of the Protection from Harassment Act 1997 are made. The printed order is in these terms: