Trott, R. v

On 2 February 2011, in the Crown Court sitting at Croydon, this 30 year old Appellant, for inflicting grievous bodily harm was by direction of the court found not guilty. A Restraining Order under the provisions of section 5A of the Protection from Harassment Act 1997 was imposed for two years, prohibiting him from contacting Adiya Lyons, directly or indirectly, against which by leave of the Single Judge he appeals.

The allegation was that in the early hours of 29 September 2010 the Appellant hit Miss Lyons (then his girlfriend), fracturing her jaw. The defence was that he had not assaulted her; rather, as he said on arrest and in interview, she had turned up uninvited at a party and everyone present had told her to leave. She was drunk. She came into the house and refused to leave. She was holding on to a table and others were trying to drag her out. The table was moving too. She must have hurt herself then, and she did leave.

By the day of trial (2 December 2011), a copy of the 999 tape of Miss Lyons' first call to the police 20 minutes after the incident clearly recounted her saying that she had been injured not by the Appellant but by his friends. The Crown promptly offered no evidence and a formal verdict followed. The Crown (not represented by Mr Cotter who has assisted us today) then applied for the Restraining Order. The Appellant had been in custody since his arrest on 29 September.

Sentencing him, the judge remarked that he should never have been charged or committed, and certainly should not have been kept in custody for as long as he had; something had gone seriously amiss and had given rise to "an outrageous state of affairs". He continued:

Born on 1 April 1981, the Appellant had eight previous convictions comprising 14 offences, including threatening behaviour in 2003, possession of an offensive weapon in 2004 and common assault in 2010, not to mention three cautions, including one in 2006 for an offence against the person.

The Grounds of Appeal are simply that the judge erred in law in imposing the Restraining Order in the circumstances; alternatively, erred in identifying the factual basis for it.

The Appellant's submissions suggest that, following the judge's reading of a second statement from Adiya Lyons in which she said she was scared that the Appellant would still seek to contact her and harass her after his release, the learned judge reached his conclusions. We have already rehearsed the passage in which the judge justified the Order by the inevitable sense of grievance felt by the Appellant that he had been charged, committed and kept in custody -- not by the generating statement of Miss Lyons.

Two authorities are in point. R v Major [2010] EWCA Crim 3016 dealt with the familiar provisions of section 5A(1) of the Protection from Harassment Act 1997, intended to deal with cases where clear evidence was present, the victim needed protection, but there was insufficient evidence for a conviction. The suggestion for the Appellant here is that there was no clear evidence that Miss Lyons needed protection; nor was there insufficient evidence on the particular charge. The effect for the Appellant, it is said, was that he ended up in a worse position post-acquittal than if he had never been committed for trial. As the judge analysed, had the Crown looked into the matter more carefully and expeditiously and decided not to charge him, he could never have been made subject to a Restraining Order because he would not have been before a court which could impose it.

Major is authority for the following propositions: the standard of proof for a post-acquittal Restraining Order is the civil one; the judge should identify the factual basis for making one; the making of an Order is not restricted to cases where it is based on uncontested facts; ordinarily an Order should be made whenever there is a need for protection, even though the victim is not blameless; the making of an Order is not limited to acts subject to a charge; it must be based on evidence, and that may be evidence emerging at the trial and/or other evidence. Obiter, Griffith Williams J said that section 5A addressed a future risk, if the evidential basis for such is the conduct of the defendant. Bringing it to bear on these facts, Mr Cotter who appears for the respondent Crown today but did not appear below, suggests that the judge based his decision on uncontested facts, that is the initial allegation by the complainant, at best unfounded and at worst false; that the Appellant had been remanded in custody for more than four months as a consequence; that he was aggrieved; and that he was about to be released. The judge decided to the appropriate civil standard that it was likely the Appellant would seek to remonstrate with her by way of a course of conduct constituting harassment. There was clear evidence that she needed protection, he submits.

We turn to R v K [2011] EWCA Crim 1843. Mrs K, the estranged wife of the appellant, was the sister of Ms P who saw her sister resisting the appellant's announced intentions to have sex with her. Turbulence ensued. The police were called. The appellant claimed an assault by Mrs K, who was arrested. Cross-allegations flowed. At the hearing not guilty verdicts were entered, and a Restraining Order imposed. Both parties were given an opportunity to make submissions, albeit without prior notice and in the middle of a busy list. The submission was that there was insufficient evidence to satisfy the court that an Order was necessary.

The Court of Appeal said that the imposition of a Restraining Order is a serious matter, and that no consideration seemed to have been given to the provisions of the Criminal Procedure Rules 2010 identifying steps which must be taken to ensure anyone subject to such an order has a proper opportunity to understand what is proposed and why, and make representations at a hearing.

Mr Cotter candidly described as "an imaginative use of his powers" by the judge. It seems to us to be a use which is not well-founded. At its lowest the Appellant, by way of his counsel if nothing else, should have had the opportunity, a warning shot perhaps fired across his bows, to address the court, having reflected, even if only briefly, on whether a Restraining Order were necessary and well-founded. It is plain that none such was given. Of course this was an experienced criminal tribunal, doubtless, as in K, going through a busy list as expeditiously as the interests of justice required. That said, though it is evident that the judge's sympathies were with the aggrieved Appellant, the procedure he followed effectively denied him the opportunity, before it was imposed, to make any submissions on the proprietary of an Order, let alone its terms.

We are entirely persuaded, in part by the submissions of Mr Cotter for the Crown, that this order should be quashed.