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NEUTRAL CITATION NO: [2025] EWCA Crim 1314 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT GUILDFORD HHJ FRASER CP No: 45GD0996723 CASE NO 202500221/A4 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE HOLGATE
MR JUSTICE MARTIN SPENCER
MR JUSTICE CALVER
REX
V
HEDI AMRI
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MISS N TURNER appeared on behalf of the Appellant
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A P P R O V E D J U D G M E N T
MR JUSTICE MARTIN SPENCER: With leave of the single judge the appellant appeals against a restraining order imposed as part of the sentence for an offence of assault occasioning actual bodily harm imposed by His Honour Judge R Fraser, a Circuit Judge sitting in retirement in the Crown Court at Guildford on 10 December 2024. In addition to the restraining order the learned judge made a suspended sentence of imprisonment of nine months suspended for 18 months, combined with 30 days rehabilitation activity requirement and 120 hours unpaid work. He also made a compensation order.
The circumstances of the offence were as follows. At 6.00 pm on 4 September 2023 the complainant, Mr Jablonski was parking his bus at Guildford Bus Station. There were no passengers on board. Three men were standing at the end of the bay, including the appellant and his co-defendant Mr Tallat Matin.
The complainant waved for them to move out of the way. The appellant's group moved but then the co-defendant, Mr Matin started shouting at the complainant through the driver's window. At that point the bus stopped. The complainant got out to explain to the appellant's group that they should not stand in the bus bay for safety reasons. The co-defendant accused the complainant of trying to run him over and said: "Do you fucking know who I am?" The co-defendant then pushed the complainant with both hands. The complainant pushed him back and the co-defendant reacted by punching the complainant in the face with his right fist, breaking his nose. The co-defendant then hit the complainant in the back of the head and on the side of his face before the appellant joined in. The complainant tried to protect himself by covering his head and retreating onto the bus. He was followed onto the bus by the appellant and the co-defendant who continued to punch and kick the complainant. Members of the public and another bus driver intervened pulling the appellant and the co-defendant away. Initially the appellant continued to remonstrate but eventually he and the co-defendant walked away.
The complainant was inspected by an ambulance crew and attended his GP a few days later. He had sustained a broken nose, a cut to the bridge of his nose, a cut below his right eye, swelling to his forehead, lumps on the back of his head, pain and discomfort in his ribs and a nose bleed.
When the appellant was arrested he stated that it was the person next to him who had punched the complainant. In interview he provided no comment to all questions.
The appellant pleaded guilty to the offence of assault occasioning actual bodily harm on a full facts basis when arraigned on the indictment on 20 September 2024.
At the sentencing hearing, after the hearing had commenced, a statement from the Officer in the Case was uploaded to the Digital Case System by the prosecution which confirmed that the officer had attempted to contact the victim but had been unable to speak to him. It was therefore unclear to what extent the victim's views were taken into account by the prosecution in applying for a restraining order.
However, the court had the benefit of a victim personal statement from Mr Jablonski in which he likened his symptoms to post-traumatic stress disorder. He stated that the assault had had a severe impact on his mental health, that he suffered random panic attacks and was not sleeping well. He continued to have physiotherapy and for one month after the incident his boss had to purchase his groceries.
The appellant has 41 previous convictions for 57 offences but as the learned judge stated in his sentencing remarks, these had "all the makings of somebody who was abusing drugs through that period". The offences included acquisitive offences such as shoplifting, committed to finance his drug habit. There was then a nine-year gap coinciding with the appellant coming off drugs, followed by a single offence of battery in October 2023 which was accepted to be a standalone matter and for which the appellant received a community order.
Counsel for the prosecution when opening the case referred to the application for a restraining order which had been uploaded to the Digital Case System and served late. It was dated 10 December 2024, the same date as the sentencing hearing. It stated:
" The terms of the order the prosecutor wants the court to make are: Not to contact directly or indirectly Mr Jablonski. Not to attend Guildford Bus Station/Friary Bus Station off Commercial Road, Guildford, Surrey. Not to use Safeguard Coaches in the Borough of Guildford."
The application did not indicate a period of time for the proposed order. Counsel for the prosecution submitted that the order was proportionate and necessary to protect the complainant who worked multiple routes for Safeguard Coaches. He said:
"They can get the bus, if needed, to a different location and I understand they are both currently unemployed. But your Honour I'm aware you need to make sure the terms are proportionate in regard - and necessary."
Miss Turner, who represented the appellant in the court below and has again represented him in this court, opposed the making of the restraining order. She submitted:
"Of course your Honour should only impose the restraining order is it's necessary to protect the victim from conduct which amounts to harassment or will cause a fear of violence. Mr Amri and the victim in this case are unknown to each other and they were unknown to each other at the time of this incident. It took place in September 2023, so over a year ago. He's been on bail for that whole time and in fact he hasn't had a condition of bail not to contact the complainant, but there's no suggestion that there has been anything - that there has been any contact throughout that time. So there isn’t really any evidence to suggest that it would be necessary to protect him from future harm from Mr Amri. The imposition of a restraining order is a serious thing. It carries serious consequences if it’s breached, and also in relation to the particular terms relating to bus use, it's the same position for Mr Amri. He doesn't drive. He relies on public transport, and he does live in Guildford or in the outskirts of Guildford so it would be disproportionate infringement on his ability to just live his life."
In relation to the restraining order, the learned judge stated this:
"The restraining order - I'm persuaded that some of the prohibitions are necessary to prevent the victim from conduct amounting to harassment from you so I will grant it to this extent, that there will be a prohibition of contacting directly or indirectly, Mr Jablonski, and not to attend Guildford Bus Station because that's exactly where this incident took place. ... It won't include the Friary Bus Station, and it won't include a total exclusion from Safeguard Coaches, and that'll be for a period of three years."
We are very grateful to Miss Turner for her submissions on this appeal in writing. Having referred to the decision of this court in Khellaf [2016] EWCA Crim 1297 she submitted that there was no evidence before the court indicating a risk of future conduct amounting to harassment or causing the victim to fear violence and that the sentencing remarks of the learned judge did not adequately explain why the order was deemed necessary.
Discussion
The starting point is section 360 of the Sentencing Act 2020 which provides as follows:
"Restraining order: availability
This section applies where a court is dealing with an offender for an offence.
The court may make a restraining order under this section against the offender for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which—
amounts to harassment, or
will cause a fear of violence.
But the court may make a restraining order under this section only if it does so in addition to dealing with the offender for the offence."
The predecessor to this section was considered by this Court in Khellaf where an indefinite restraining order had been made against the appellant who had breached a non-molestation order made in respect of his wife (the complainant) on three occasions and had also assaulted her. In the very different circumstances of that case, the court had no doubt that a restraining order was appropriate but considered that the terms of the order in that case were too wide and that an indefinite order was unnecessary and disproportionate, substituting an order for three years.
The court considered that the authorities set out the following propositions:
A court should take into account the views of the person to be protected by such an order as to whether an order should be made. We do not say that there will never be a case where it would be inappropriate to make a restraining order even though the subject of the order does not seek one, but the views of the victim will clearly be relevant. Nor do we say that a court must have direct evidence of the views of the victim. That may prove impossible. The court may be able to draw a proper inference as to those views, or may conclude that a restraining order should be made whatever the views of the victim, although clearly if a victim does not want an order to be made because she wants to have contact, that may make such an order impractical. But we accept that in normal circumstances the views of the victim should be obtained. It is the responsibility of the prosecution to ensure that the necessary enquiries are made.
An order should not be made unless the judge concludes that it is necessary to make an order in order to protect the victim.
The terms of the order should be proportionate to the harm that it is sought to prevent.
Particular care should be taken when children are involved to ensure that the order does not make it impossible for contact to take place between a parent and child if that is otherwise inappropriate."
The circumstances of the present case involved an isolated encounter between two persons previously unknown to each other and who have no ongoing relationship.
We agree with Miss Turner that there was no evidence before the court of a risk of future conduct amounting to harassment or causing the victim to fear violence and that the sentencing remarks of the learned judge did not adequately explain why the order was deemed necessary. It appears to us that the order in the present case was made more in order to give the victim piece of mind but in our view that does not qualify within the terms of the statute which is confined to the prevention of conduct which amounts to harassment or will cause a fear of violence. To put it bluntly, for the appellant to catch a bus which happens to be driven by the victim is not per se conduct amounting to harassment or causing a fear of violence. This order was not in our view necessary in order to protect the victim.
For these reasons we allow the appeal and quash the restraining order. The order in the court below will remain the same in every other respect.
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