R v Muhammad Khurshid

This application for leave to appeal has been referred to the full court by the Registrar. It raises questions as to the procedure adopted when imposing a restraining order upon an acquittal and as to whether, in any event, the statutory criteria were met for that order.

The Crown does not seek to contest the application for leave or either of the proposed grounds of appeal.

In June 2024, the applicant was arrested for allegedly breaching a non-molestation order made by the Family Court on 5 May 2023 ("the Family Court order").

The Family Court order related to the applicant's former wife (the complainant in the criminal proceedings), with whom he had two children, and confirmed an ex parte order made on 3 April 2023. It prohibited the applicant from using or threatening violence against the complainant, or intimidating, harassing or pestering her, or, in either case, instructing, encouraging, or in any way suggesting that any other should do so. The Family Court order was stated to remain in force until 3 April 2024. Provided the applicant did not act in the ways specified, the Family Court order did not prohibit communication between the parties.

The charge against the applicant was that in May 2023, he had repeatedly contacted the complainant, which amounted to harassment in breach of the Family Court order that had been made that month. The applicant denied the allegations and elected to be tried at the Crown Court. He was granted conditional bail; his conditions (which had been varied by agreement pending trial) were that he (i) should not go to the complainant's address, save as arranged for child contact purposes, and (ii) was not to contact the complainant, directly or indirectly, save via the Family Wizard App, or through solicitors in relation to ongoing Family Court proceedings and child contact.

The case was listed for trial (as a floater) in the Crown Court on 7 April 2025; the applicant duly attended court, as did the complainant, but no trial counsel was present for the prosecution. Later in the day, prosecution counsel appeared via CVP and applied to adjourn the trial due to lack of available counsel. The next available date was, however, likely to be July 2026, and the Judge refused the application, although granting the prosecution 48 hours to consider whether to appeal that decision. The Judge reserved the matter to himself and listed it for a mention hearing on 10 April 2025 via CVP; the applicant was not required to attend.

On 10 April 2025, both prosecution and defence counsel attended via CVP as directed. The prosecution indicated they did not intend to appeal the decision of 7 April and consequently offered no evidence against the applicant, who was formally acquitted in his absence.

After the entering of the not guilty verdict the hearing (relevantly) proceeded as follows:

“Judge: ... Now is there a need for a post-acquittal restraining order?

Prosecution counsel: I haven’t made – I haven’t got specific instructions as to applying for one.

...

[there was then an intervention in the court room, where the complainant was in attendance in person and duly introduced herself to the Judge]

...

Judge: ... So thank you very much for coming to court today. I’m sorry about what’s happened in this case, it’s no reflection on you at all but the prosecution has now come to an end. But I can impose, if you ask for it, what’s called a post-acquittal restraining order which means that even though he’s not been convicted of anything, there will still be an order preventing him from bothering you, harassing you, intimidating you, anything of that sought. Now is that something that you wish me to order in this case?

Complainant: Yes, please.

Judge: Okay, ... [then, addressing counsel] So the complainant in that case is at court and I don’t know whether you heard but she – I invited her to introduce herself and address me and she’s asked for a post-acquittal restraining order. It seems to me that there’s evidence on the papers that would be supportive of me making an order in those circumstances. As she’s here today I’m minded to do just that. If the defence want to take some instructions after today’s hearing, it’s always open to them to come back under the slip rule but it seems to me that there’s ample evidence on the papers that it would be appropriate to make an order in, in these terms. That he not contact the complainant directly or indirectly save through solicitors in relation to contact with the children.

...

Complainant: Your Honour, please can I have the option to appeal the decision in regards to the not guilty.

Judge: Well ... it’s not something that you have a right of appeal over. ... But I can give you a restraining order.

...

[The complainant addressed the Judge further regarding the applicant’s acquittal].

Complainant: It’s taken a lot of courage to pluck up the courage to report it to the police. ... this was my only hope that I had that for there to be a trial.

Judge: If you have other allegations to make then I would encourage you to go to the police.

Complainant: I have. There was no evidence.

Judge: Well there’s evidence if it comes from you, if I may say so, that is evidence.

Complainant: But they said there was no evidence to charge.

Judge: Well I can’t comment on that because I don’t know. ..., let me just deal with this issue of a restraining order ... So first of all is there any objection to me making a ... post-acquittal restraining order?

Defence counsel: Your Honour, there is. The evidence on the papers, in my submission, does not show ...

Judge: Yeah.

Defence counsel: ... that my client has been harassing the complainant in this case. The non-molestation order does not prohibit contact between the parties. It prohibited him from harassing and pestering or (inaudible) and the messages in full context, in the context of the fact that the couple were living together in the same home, divorce proceedings had not begun at the stage that he was contacting her and he was in fact attempting to rekindle the relationship and repair it.

Judge: Yes, yes, ...

Defence counsel: (inaudible)

Judge: Yes, but listen, look, just pause a moment. I’m not here to litigate it, I’m not here to litigate it. There’s an application [for] the restraining order – by the complainant. Where is he living now? He’s not living with you now.

Complainant: No. ... There was an occupation order in place but all those messages came after the occupation order was in place

Judge: Right and but he’s been on bail and one of his conditions of bail would have been not to contact you.

Complainant: Yeah.

Judge: And he hasn’t been.

Complainant: He has been contacting me doing the messages through the app ... for ... the children. ... However, I have reported this to the police considering it to be quite abusive his language and his tone. The police again have said because there’s allowed to be contact in relation to the children that has to be – that cannot be charged.

Judge: Right, so the only reason I find that he hasn’t contacted her directly during the course of these criminal proceedings is because there’s been a bail condition preventing him from doing so and so it seems to me that the appropriate course to take is for there to be a restraining order in these terms. That he doesn’t contact the complainant directly or indirectly save through solicitors and in relation to any divorce proceedings or family matters relating to the children for a period of five years.

Defence counsel: Your Honour, may I ask the condition that mirror the present bail condition because the bail condition has specific reference to an app on the Family Wizard app which is (inaudible).

Judge: ..., you’re quite right, that’s something I now know of. So I shall say that the defendant is not to contact the complainant directly or indirectly save via the app used to contact in relation to access for the children or via solicitors of course. ...”

The judge then proceeded to make a restraining order for a period of five years, prohibiting the applicant from contacting the complainant save via solicitors or by the Family Wizard App in relation to access to their children.

The applicant seeks to challenge the restraining order imposed by the judge on two grounds. By ground 1, it is said that the imposition of the order was procedurally improper: although it was clear that the imposition of the order was opposed, the judge did not allow time to hear evidence from both parties (the applicant was not even present in court) or for defence counsel to develop submissions; the necessity for the order was not explained, nor was it said what evidence had been relied on in making it. Further, by ground 2, the applicant objects that the order did not meet the statutory criteria: the history of the proceedings showed that there was no evidence of future risk and there was important context to his exchanges with the complainant, who could, in any event, use alternative means to seek protection.

For the prosecution, it is accepted that a post-acquittal restraining order was made in this case during a hearing that was conducted improperly, the court having failed to adjourn to allow evidence to be adduced and for the defence case to be heard; it is conceded that those failures meant the judge proceeded to make a restraining order without the proper evidential matrix from which to establish its necessity; although the judge said he found the applicant had not contacted the complainant during the proceedings because of the bail conditions, he did not identify the evidential basis relied on for that conclusion and did not provide any other reasoned explanation for making the order. In the circumstances, the prosecution concedes the order made on 10 April 2025 did not meet the requirements of Part 31.2 Criminal Procedure Rules 2020.

While agreeing that the applicant's application and appeal must be allowed, the prosecution does not accept that this is a case where a post-acquittal restraining order could not have been made. In this regard it is observed that this was a domestic case, with a history between the parties that had necessitated the making of a non-molestation order; the complainant had attended court, was willing to give evidence, and had stated that she wanted protection. In the circumstances, it is submitted that the court could properly have made an order if satisfied on the evidence, on a balance of probabilities, that a restraining order was necessary.

The starting point is provided by section 5A of the Protection from Harassment Act 1997 ("the 1997 Act") which states that where a person (“the defendant”) is acquitted of an offence, the court may nevertheless make a restraining order against the defendant by:

Subsection (2A) provides that, in proceedings for a post-acquittal restraining order, both the prosecution and defence may lead any evidence which would be admissible for an injunction under section 3 of the 1997 Act. Provision is made for a restraining order to be varied or discharged (subsection (2B)), allowing that any person mentioned in the order would be entitled to be heard on such an application (subsection (2C)).

Subsection (2D) makes plain that it will be an offence for a defendant to act in the way prohibited by a restraining order made under section 5A. If found guilty the defendant is liable, on conviction on indictment, to imprisonment for up to five years and/or to a fine; or, on summary conviction, to a term of up to six months and/or a fine (subsection (2E)).

Part 31 of the Criminal Procedure Rules 2020 (“CrimPR”) applies to the imposition of behaviour orders, including restraining orders; in particular, Part 31 provides:

“Behaviour orders: general rules

31.2

(1) The court must not make a behaviour order unless the person to whom it is directed has had an opportunity—

(a)

to consider— (i) what order is proposed and why, and (ii) the evidence in support; and

(b)

to make representations at a hearing (whether or not that person in fact attends).

(2)

That restriction does not apply to making—

(a)

an interim behaviour order, but unless other legislation otherwise provides such an order has no effect unless the person to whom it is directed— (i) is present when it is made, or (ii) is handed a document recording the order not more than 5 business days after it is made; ...

...

Evidence to assist the court: special rules

31.4

(1) This rule applies where the court can make on its own initiative-

...

(b)

a restraining order; ...

(2)

A party who wasn’t the court to take account of evidence not already adduced must-

(a)

serve notice on- (i) the court officer, and (ii) every other party,

as soon as practicable (without waiting for the verdict); and

(b)

in the notice, identify that evidence; and

(c)

attach any written statement containing such evidence.”

Specific provision is also made in respect of hearsay evidence, at CrimPR 31.6 and 31.7.

CrimPR 31.11 provides that the court may shorten (or extend) a time limit (even after it has expired) and may allow a notice or application to be given in a different form or presented orally.

Consideration of a court's exercise of its powers under section 5A of the 1997 Act will be informed by the following principles, as made clear in the case-law:

The consequences of making a post-acquittal restraining order in the absence of a fair process was considered by this court in R v Khan [2021] EWCA Crim 1526. Having observed that, although not inevitable (see Bernard v The State of Trinidad and Tobago [2007] 2 Cr. App. R. 22 [27]), a finding that a litigant has not had a fair trial will ordinarily mean that an order will be set aside (Serafin v Malkiewicz [2020] 1 WLR 2455 [49]), the court went on to consider the particular complication arising from the nature of an order made under section 5A of the 1997 Act.

By section 5A(5) it is provided that a person made subject to a post-acquittal restraining order has the same right of appeal against the order as if they had been convicted of the offence before the court and a restraining order had been made under section 5. Thus, although a section 5A order is civil in nature, for the purposes of an appeal it is treated as being a “sentence” following conviction (albeit such orders are not included in the Sentencing Code, see Chapter 3 Sentencing Act 2020). By section 11(3) Criminal Appeal Act 1968, it is provided that, on an appeal against sentence, if the Court of Appeal considers that the appellant should be sentenced differently, it may quash any sentence or order which is the subject of the appeal and, in place of it, may pass such sentence or order as it thinks appropriate (and as the court below had the power to pass or make). As the court observed in Khan:

“35.

s.11(3) limits the orders that the Court of Appeal can make on a “sentence” appeal against a restraining order on acquittal to either quashing the original order, or imposing a fresh restraining order (providing its terms are not more onerous than the terms of the original order). Remitting the application for the restraining order to be reconsidered by the first instance Court is not expressly included as an option.”

Notwithstanding the absence of an express power to remit under section 11(3), the court in Khan held that that did not stand as an impediment to the prosecution making a further application under section 5A of the 1997 Act. The court's reasoning in this regard was explained as follows:

“37.

... The fact that s.5A(5) treats the imposition of a restraining order under the section as the imposition of a “sentence” for the purposes of an appeal does not alter the fact that proceedings under s.5A are civil in nature. If a restraining order under s.5A is quashed by the Court of Appeal, that represents no bar to the prosecution making a fresh application to the Crown Court under s.5A. There is no need for the Court of Appeal formally to remit the case. It is for the prosecution in any case to decide whether to apply for a restraining order under s.5A. When a sentence after conviction is quashed by the Court of Appeal, it is necessary for that Court to impose a lawful sentence in its place. Here, if the Court of Appeal quashes the restraining order under s.5A, there is no requirement to impose another “sentence” in its place. Indeed, where the Court has found that the original proceedings were procedurally unfair, it is likely that the Court will lack a proper evidential basis upon which to do so ... After the restraining order in this case is quashed, the Isleworth Crown Court remains the “court” before which the Applicant was acquitted of the offences with which he was originally charged. It therefore retains jurisdiction to consider an application under s.5A afresh once the original order has been quashed by the Court of Appeal.

38.

We have reached this conclusion simply on the proper interpretation of s.5A. Had it been necessary to do so, we would have been satisfied that the duty to interpret legislation compatibly with the Human Rights Act 1998 would have required such an interpretation, so as to protect the Article 6 rights of both the Applicant and the complainant. Where the Court has determined that a trial process has been unfair and the resulting order must be set aside, the ordinary course is that the proceedings can be heard de novo. We are satisfied that there is nothing in s.11 and s.5A which prevents the Crown Court from hearing and determining a fresh application by the prosecution for a restraining order under s.5A following our decision to quash the original order imposed ....”

In this case, a post-acquittal restraining order was made under section 5A of the 1997 Act at a hearing at which the applicant – with the court’s leave – was not present, and in circumstances in which no prior notice of the making of such an order had been given. The CPS had not indicated that it would seek a restraining order, and prosecuting counsel had no instructions to make such an application at the hearing on 10 April 2025. Both counsel had – again with the court's leave – attended the hearing by video link (by CVP); that was appropriate for this as a mention, but gave rise to difficulties when trying to address points raised by the complainant in response to the judge's invitation to address him on the making of a post-acquittal restraining order. What was, however, made clear, was that the necessity for such an order was contested by the applicant and, as such, the judge could only determine whether to make such an order on evidence; and, if he decided to make such an order, he would then be required to explain his reasons (Brough [22]; Baldwin [37]).

In these circumstances, the course the judge was required to adopt was clear from the guidance provided in the case-law and by the CrimPR; it was, moreover, a course dictated by natural justice: time had to be given to ensure the applicant had proper notice of the proposed order (and the reasons it was said to be required), and to consider the evidence relied on in support; he also had to be provided with the opportunity to adduce evidence and make submissions (Baldwin [37]). Given the lack of notice prior to the hearing on 10 April 2025, the judge ought to have considered adjourning consideration of this issue, giving directions to ensure compliance with Part 31 of the CrimPR (Davinder K [13]). Had the issue arisen after a contested trial, the judge might have considered it appropriate to exercise the discretion afforded under CrimPR 31.11, but this was a case where the prosecution had offered no evidence, the applicant had not had the opportunity to test the evidence against him and adduce his own evidence, and the judge did not have the advantage of having presided over a trial; in those circumstances, different considerations arose (Davinder K [14]; Baldwin [37]).

Instead of adopting the course we have outlined, having asked whether there was any objection to his making a post-acquittal restraining order, the judge effectively curtailed the applicant's counsel's submissions, stating that he was "not here to litigate" the issue. The difficulty was, however, that this was a point that was being litigated, and the applicant had the right to know the case against him, and to be heard. By not ensuring time for the applicant to be properly notified and to consider the case against him, the judge denied him a fair process; by not being prepared to listen to his counsel's submissions, the judge denied the applicant a fair hearing. By nonetheless proceeding to make a restraining order, the judge did so absent the identification of a proper evidential base for establishing the necessity of the order and (perhaps inevitably) failed to explain his reasons for making it.

We acknowledge the points made by the prosecution, to the effect that there might have been a proper basis for making a post-acquittal restraining order in this case. We note the domestic context, and the earlier making of the non-molestation order; we further accept that compliance with bail conditions need not mean that a restraining order is unnecessary, and we bear in mind that an order under section 5A might relate to conduct that could not give rise to a conviction applying a criminal burden of proof, or which has the potential to amount to harassment even if it does not yet meet that test (Major [15] - [16]). In this case, the complainant had attended court, was willing to give evidence, and had stated she wanted protection; had there been an adjournment of the section 5A restraining order issue, proper instructions could have been taken from the complainant, and the appropriate notice (with any accompanying evidence) provided to the applicant if her request for an order was to be progressed. The unfairness of the process adopted in this case did not only impact on the applicant, although, of course, the immediate consequence was that he was made subject to a post-acquittal order of which he had had no prior notice.

In the circumstances, we are satisfied that the applicant's application for leave to appeal is to be granted and his appeal allowed. As a result, the section 5A restraining order made on 10 April 2025 must be quashed. Given, however, the procedure adopted below, there is no evidential basis upon which we could make an order in substitution, although we are equally not in a position to say that no order could properly have been made in this case. In the circumstances, we consider the position is the same as in Khan; our determination of this appeal, and the quashing of the original order, does not prevent the prosecution making an application for a restraining order under section 5A of the 1997 Act, although we direct that, if it decides to do so, it must give notice of its application to the applicant and to St Albans Crown Court within 28 days.