R v Didier Auguste

MR JUSTICE SOOLE: On 26 February 2025 in the Crown Court at Inner London, the applicant, then aged 60, was acquitted of the sole offence on the indictment, namely intentional strangulation of his younger brother, John Auguste, contrary to s.75A(1)(a) Serious Crime Act 2015. This acquittal followed the decision of the Crown to offer no evidence against him. On the same occasion and upon his acquittal, the applicant was made subject to a restraining order pursuant to s.5A Protection from Harassment Act 1997. This prohibited him for a period of five years from contacting his brother or attending the property where they had previously lived together.

By this application, which has been referred to the full court by the Registrar, the applicant seeks leave to appeal against the imposition of the restraining order and for an extension of time (229 days) in order to do so. We grant the necessary extension of time and leave to appeal.

Section 5A provides, as material:

The central principles on such applications have been summarised in R v. McCarren [2023] EWCA Crim 1233; [2024] 1 Cr. App. R. (S.) 27 at [23]. Omitting the authorities cited in support of each proposition, these read:

Further, at [26]:

Mr Lyndon Harris, who did not appear below, submits on behalf of the Crown that principle (3) in McCarren is incorrect. This is because Criminal Procedure Rules 31.3(2) and (3) do not apply to a prosecution application for a restraining order. This is so, both under the 2020 Rules which applied to McCarren and which apply to the present case, and under the succeeding 2025 Rules. Under each set of Rules, the application is made pursuant to rule 31.3(1)(c); whereas rules 31.3(2) and (3) apply only to the other types of order identified in rule 31.3(1)(a).

Conversely, the relevant rules are to be found in rules 31.2(1) and 31.3(6). Under the 2020 Criminal Procedure Rules, these provide:

With certain adaptations to embrace other types of order, rules 31.2(1) and 31.3(6) in the 2025 Criminal Procedure Rules are in similar terms.

We agree with Mr Harris’ submissions as to the rules which apply to a proposal for a restraining order; and therefore that principle (3) in McCarren is not correct. All that said, Mr Harris accepted that there had not been full compliance with the applicable rules, in particular with rule 31.3(6).

From a date in 2015 until these events, the appellant had been living with his brother at 17 Dundas Road, London SW9. It is now clear from the documents which have been produced for the purpose of this application that their mother, Mrs Marie-Therese Auguste, had been a tenant of the property from Lambeth Borough Council pursuant to a tenancy agreement entered in January 2014. Mrs Auguste died in 2015. In April 2015, and pursuant to the relevant provisions of the Housing Act 1985, a succession tenancy was vested in John Auguste, named as Jean France Auguste. The succession reflected John Auguste's Declaration for Succession that, as a member of the former tenant's family, he had resided with his mother at the property for the requisite 12 months before her death. It was at about this time in 2015 that the appellant came to live with his brother at the property.

In the early hours of Boxing Day 2024, John Auguste made two s.9 witness statements to the police, the second providing greater detail than the brief first statement. He said that Didier had been living with him since their mother died. Then, during Covid four years before, his (John's) partner had died. Since that time, the appellant had called him names and said that he was an idiot and a dead man. Despite that, he let Didier stay with him because he was his brother and had nowhere else to go. He then gave an account of their Christmas Day together, which had been uneventful until shortly before midnight. At about 23.40 hours John went into the kitchen to have a glass of whisky and was followed in by Didier. He told Didier that the food was still in the bag and that he should take it out or it would go off. After a brief exchange, Didier "flipped out. He was about a meter away from me and with his left hand ... he grabbed my throat ... I stood up from my chair and tried to push him off me, I could hardly breathe, this lasted for a minute or two. I managed to push him off me. Didier said he wants his flat immediately or else he would stab me to death in the morning, I am not Lambeth Council so I can't get a flat immediately. Then he said if he has to follow me to my work place to stab me he will do. I cannot trust people these days so I took this very seriously. In fear, I went outside and had a smoke and thought long and hard about it, and decided that he needs to go, so went back inside and got my shoes and came to the police station. This whole altercation happened for about 10 minutes. I did not speak to Didier before I came to the police station. Didier has not had a job in 25 years and I pay for all the bills too."

The statement continued that he and Didier had had a discussion, about 3½ years before, about Didier going to get a flat. Didier had not bothered to go to the appointment, so he arranged an appointment. However when the housing officer came through, his brother decided not to arrive on time. He believed he spent his day in the betting office. He described Didier as 'just a normal person, when you look at him', but that he had schizophrenia. The statement concluded: "I do not want him in my house, he needs to go. I can't afford to have him around. This is the reason I came to police station. I feel bad, because I didn't think my own brother would tell me that he is going to stab me or follow me to work and stab me."

The appellant was swiftly charged with the offence of intentional strangulation to which we have referred. On his appearance at Croydon Magistrates Court on 28 December 2024, he was sent for trial at the Crown Court and remanded in custody. At the Crown Court on 27 January 2025 he was arraigned and pleaded not guilty. The PTPH form completed for that hearing stated 'Factual dispute. Defendant denies holding the victim by the throat. Denies doing anything to stop the victim from breathing on 25 December 2024. The victim was the aggressor. Denies applying unlawful force on the victim. Denies force applied was intentional or reckless. Self Defence.'

The judge on that occasion was the same judge who made the subsequent restraining order. In addition to fixing the matter for a two-day trial in September 2025, he fixed a mention hearing for 26 February and noted that this was 'to see if case can be resolved, check attitude of complainant and obtain an earlier trial date if possible.'

By letter dated 21 February 2025 to the appellant's solicitors and headed 'Compliance with judge's direction for consideration of case', the CPS stated that, having considered the case and made contact with the complainant 'The Crown proposes to offer no evidence on the condition that the defendant would agree to a post-acquittal restraining order with the following terms: 1. Not to contact the complainant directly or indirectly; and 2. Not to attend the address: 17 Dundas Road ... ' The letter continued: 'Inherent in the above proposed restraining order, is the requirement for the defendant to make alternative living arrangements. Please advise if the defendant is amenable to this and what living arrangements, if any, may be in place if upon acceptance of the above and release from custody.' The letter was copied to the Court.

At the Crown Court on 26 February this letter was discussed at a conference with his counsel. Following waiver of privilege, counsel has supplied his attendance note. This states that he explained to the appellant the implications of him being rendered homeless and that he would need to speak to the authorities in prison specifically about provision for those in need of temporary accommodation and who have nowhere to go to. The note continues that the appellant's instructions were that he would take the offer made.

The transcript of the exchanges between judge and counsel at the hearing is incomplete because of audibility problems, but records counsel for the prosecution stating that Mr John Auguste had explicitly confirmed that he sought no contact with his brother; and that he would prefer an order to be permanent, alternatively as long as possible. The Crown's position on duration was to the effect that it should be for no more than a period of five years, in the first instance. The judge responded that if John Auguste wanted contact in the future then he could make an application to have the restraining order lifted. The position advanced by counsel for the appellant was that he did not contest that an order was appropriate, but asked the judge to consider whether duration of five years was necessary or whether some shorter period would suffice for the protection that was required for the appellant's brother.

In his ruling, the judge said that: "... having considered the evidence in this case, without needing to make any determination as to whether in fact he committed a criminal offence, I am quite satisfied that the statutory test for making a restraining order on acquittal is made out and that it is necessary and proportionate to do so. In respect of matters, the prosecution confirmed directly with John Auguste, the subject of the restraining order, that he does not want to have any contact with his brother; in fact, his position is he wants to have no contact with him at any point in the future. [Prosecution Counsel] sensibly…accepts that it would not be appropriate today to make an order until further order.' The judge referred to the submission of Counsel for the appellant but concluded that five years was an appropriate duration, observing: 'Firstly, if there is some softening by John Auguste over that period…then he…can make an application before the end of five years to vary or revoke the order. If, after five years, there has been no issue, it seems to me that there is not sufficient to demonstrate that it would be necessary for the order to continue. If there has been a breach of the order, then of course the Court dealing with those proceedings would have an opportunity to extend the order, if it is felt on that occasion it is necessary."

At that point, counsel for the appellant told the judge that arrangements had been made for his client to attend the property with a police officer at a time convenient to his brother to collect his own belongings. For that purpose the final order was granted in revised terms that prohibited the appellant from: "1) contacting John Auguste directly or indirectly save through the Police or third party approved by the Police for the purpose of arranging for some other person to remove his property from 17 Dundas Road - no such contact is to take place after 1 April 2025. 2) attending 17 Dundas Rd, London SW9 6BZ." The Order lasts until 25 February 2030.

The appellant was duly released from custody. An email dated 12 June 2025 from the Homeless Team at Guy's and St Thomas' NHS Foundation Trust sets out an account of what happened next. It states that, following release from prison, he was forced to rough sleep until he was admitted to St Thomas's on 13 May 2025. On admission he was extremely unwell with a viral infection, pleural effusion and aortic thrombosis. After treatment with oxygen, intravenous antibiotics and a right side chest drain he was transferred to the Trust's 'step down' facility where he was occupying a bed. The email records that Lambeth Council had confirmed that 'the tenancy for the property belongs to RDA [i.e. the appellant] and his late mother exclusively.' We observe that the documents subsequently obtained from the local authority do not support that latter statement.

On behalf of the appellant, Ms Violet Smart, who did not appear below, contended that there had been no sufficient compliance with the relevant procedural rules which have been identified in the course of this hearing.

Turning to the substance, Ms Smart submitted that the order failed the critical s.5A(1) test of necessity. The evidence consisted of the two witness statements from John Auguste. There was no visual or corroborative evidence. Further, the evidence and the statements were disputed, as was apparent from the plea which had been entered and from the issues identified in the PTPH form and elsewhere.

The appellant was a man aged 60 with no previous convictions, cautions or reprimands recorded against him. There was no mention in the statements of any previous incidents of physical violence or of future concerns. As appeared from the transcript of the hearing and the ruling, no factual or evidential basis had been identified by the Court when imposing the Order. The judge went no further than stating that he was satisfied that the statutory test for making a restraining order was satisfied, having considered the evidence on the papers.

Further, a restraining order should only be imposed to mitigate against future risk of harassment. In this case the evidence related to no more than a single incident, together with the reference to schizophrenia. Indeed, the closing words of John Auguste's second witness statement suggested that his real concern was not of future harassment, but a desire not to be financially burdened.

Next, the order failed to meet the requirement of proportionality. It appeared to have been known to the parties that the impact of the order would be to make the appellant homeless; and so it turned out, between 26 February and 13 May 2025. It was disproportionate to impose an order which had that effect; and not least in the circumstances of his age, health, character and the conflicting accounts of the Christmas Day incident. Whilst it was acknowledged that the court could not predict or prevent all the consequences of a particular decision, it was reasonably foreseeable that the appellant would be forced to sleep rough if the order was made.

Further, no information was provided to the court about the property at which the appellant had been living since 2015; and in particular as to the tenancy from the local authority. However, in the light of the documents produced since the grounds of appeal were prepared, Ms Smart accepts that the tenancy vested in John Auguste.

As to the duration of the order, a period of five years was in any event excessive for what was a one-off incident between adult family members, with no lasting physical or psychological harm. As with the finding of necessity, the judge had identified neither the evidence nor the reasons for making such an order.

As we have noted, Mr Harris correctly submitted that the relevant procedural requirement were not as set out in the current authorities but he accepted that they had not been fully complied with. He observed that there is no dedicated form for a restraining order on acquittal. He submitted that the CPS letter of 21 February 2025 complied with the substance of the appropriate rules. In the absence of reference to any further material on which the Prosecution wish to rely, it was implicit that the application was made on the basis of the witness statements served in the criminal proceedings. That would have been obvious to the appellant and his advisers. Likewise, in respect of the strict requirement to serve hearsay notices in respect of those statements.

Accordingly, there was compliance with the substance of the rules and no prejudice or injustice to the appellant. Conversely, a requirement of strict compliance with their form would be inconsistent with the overriding objective and might risk injustice.

Turning to the substance, Mr Harris submitted that the necessity for the order was established by John Auguste's two witness statements. The terms of the order were proportionate, because any order would necessarily have required the appellant to leave the address. The length of the order was proportionate, because of the seriousness of the allegations and John Auguste's attitude against a reconciliation.

As to necessity, the fact that there was but a single incident did not lead to the conclusion that an order was unnecessary. The statements detailed an allegation of violence, including strangulation that lasted "a minute or two" and meant that he could "hardly breathe" and a threat to kill with a knife. They also provided some background information of a history of family dispute and tension between the brothers. The second statement asserted that the appellant suffered from schizophrenia, albeit no medical evidence was provided to the court. Further, Mr John Auguste's expression of fears in the witness statement were indeed looking to the future and the future risk which had to be considered.

It was immaterial that the evidence in the witness statements was disputed. That would always be the position in the case of a s.5A order, namely where there had been an acquittal either after a trial or because the prosecution had offered no evidence.

There was no requirement for corroboration before such an order could be made. The test was simply whether an order was necessary 'to protect a person from harassment by the defendant'.

As to the appellant's informed consent, the evidence showed that in the conference on the day of disposal, his counsel had discussed with him the implications of being homeless and advised him to speak to the prison authorities about provision for temporary accommodation after release. Further, the implication from the request for an exception to the order so as to allow the appellant to collect his belongings was that he had somewhere to go. At no point was the issue of homelessness, or the tenancy, raised with the judge.

Further, the transcript showed that his counsel expressly agreed with the judge's summary of the appellant's position on the application. Mr Harris submitted that the order was plainly necessary; and the judge properly made that finding on the evidence in the witness statements. Whilst there was some non-compliance with the Criminal Procedure Rules, this was not material and caused no prejudice to the appellant.

Turning to proportionality, a term prohibiting contact with the appellant's brother was plainly appropriate. As to attendance at the address, if (as was now established) John Auguste was the sole tenant of that property, there could be no proper objection to the appellant being excluded from that address.

It was not suggested to the judge that the appellant was the sole or a joint tenant. In the absence of any such contention, the implication from the witness statements was that John Auguste was the tenant. Nor was it suggested to the judge that an order would or might render the appellant homeless on his release from custody.

The length of the order was also proportionate. The evidence from the witness statements justified the term of five years. Further, the evidence from John Auguste that he would feel comforted by an indefinite order provided relevant information about his attitude to the possibility of reconciliation. It was clear that in his mind there was no such possibility. Given the family connection, the judge was entitled to view this as a situation where a clean break was necessary in order to protect the brother from harassment and/or further violence. In any event, as the judge observed, if John's view changed and he sought a reconciliation, an application to vary or discharge the order could be made.

In conclusion, such procedural errors as were made neither prejudiced the appellant nor invalidated the order. Whilst the appellant's consent did not obviate the need for the procedural safeguards to be observed, his consent, made with the benefit of legal advice, was an important factor. The court should be cautious in taking too strict an approach on the issue of procedures. There would be the risk of a real injustice if a defendant could subsequently go behind the consent he had given to a restraining order in order to secure an acquittal and then leave the complainant without any protection.

In the course of argument we understood Mr Harris to say that it would have been better practice if the CPS letter of 21 February 2025 had not been presented in the way that it was, but had distinguished between a statement that no evidence would be offered and a separate statement that nonetheless an application for a restraining order would be made.

We well understand and respect the decision of the judge at the PTPH hearing on 27 January 2025 to invite the prosecution to consider with the complainant whether this family dispute could be disposed of without a criminal trial. As requested, the CPS duly spoke again to John Auguste.

However, in our judgment, it was at this point that things began to go wrong. First, the consequence was that the enquiry became focused on the wishes of the complainant, rather than satisfaction of the statutory test of necessity.

Secondly, having made those enquiries, the CPS did not make the requisite application for a restraining order, but made an offer to the appellant which sought to exchange the offering of no evidence on the criminal charge for consent to such an order. This offer raised the danger that the focus of each side would be on the respective advantages of the bargain, rather than the legal and evidential requirements for the imposition of a restraining order.

As this court observed in McCarren at [35]: "We recognise that there may in many cases be a pragmatic attraction in resolving a contested trial on terms that include a restraining order after acquittal. However, a restraining order is a significant restriction upon a person's liberty and is not to be regarded as a mere bargaining chip in negotiations between the prosecution and the defence."

Indeed, in the course of argument, Mr Harris observed that the risk of such offers was that a defendant might accept it under pressure in order to avoid a criminal sanction if the prosecution were to continue. That risk is vividly illustrated in the present case by a further note from the appellant’s counsel below, which included: "But the implications of such an order were explained to him and he albeit accepted as a 'get out of jail' opportunity."

We are quite unpersuaded by Mr Harris' broader submission to the effect that compliance with the procedural requirements is secondary to the 'substance' of the matter. This is because the very purpose of the requirements under the relevant Rules is to ensure that any order is justified as a matter of substance: see also the last sentence in McCarren at [23]. Thus the rules provide an essential discipline for prosecutors, and in consequence for the court, so as to ensure that the relevant facts and supporting evidence have been identified and that these properly meet the test of necessity for a restraining order on the terms which are sought. The offer letter of 21 February was quite inadequate for that purpose.

When the matter came before the judge on 26 February, both counsel should have reminded him of the principles which had to be applied when considering whether or not to make a restraining order; including in a case such as this where there was consent save in respect of the length of the order. The judge received no such assistance. In particular, he should have been taken to McCarren and its summary of principles at [23] and indeed to the statutory test in s.5A(1). As we have noted, principle (3) has to be revised. These would have reminded the judge of the need to identify in his judgment the factual basis and reasons for concluding that it was necessary to make the requested order so as to protect John Auguste from harassment by the appellant. This had to include an assessment of the nature and extent of future risk.

In the result, we respectfully consider that the judge did not truly engage with the question of future risk of harassment, nor provide any true reasons for his decision that the order was both necessary and proportionate. Rather, his ruling suggests an undue focus on the expressed wishes of John Auguste not to have contact with his brother, rather than the test of necessity: hence also the reference to the future possibility of the complainant making an application to vary or discharge the order if his view were to soften. As authority has emphasised, most recently in R v. Webb-Johnson [2025] EWCA Crim 1084 at [33], it is not enough that the order is merely desirable from the complainant's point of view.

As to the appellant's housing position once he had been released from custody, neither counsel raised this before the judge. The question of the appellant's future living arrangements having been expressly raised in the CPS offer letter of 21 February, which was then treated as the prosecution application, it needed to be expressly considered before any Order was made.

Contrary to the submissions on behalf of the Crown, we consider that this case demonstrates the importance of compliance in every case with the procedural rules in respect of applications for restraining orders; and not least in cases where the parties present the matter to the court on the basis of consent or substantial consent. Although the relevant rules are in different terms to those which have been previously identified, we consider that their essential substance is similar.

If those rules had been complied with, and the judge had been reminded of all the principles to be applied, we are satisfied that no order would or should have been made. In our judgment there was no sufficient evidential basis to find that there was a future risk of harassment such as to necessitate the imposition of a restraining order.

We also consider that, in contrast to the bargain which it offered, the CPS letter of 21 February should not have gone beyond statements that (i) it would be offering no evidence, but (ii) would be applying for a s.5A restraining order. Such an approach would guard against the plea-bargaining risk to which we have referred.

In all the circumstances, we allow the appeal and quash the restraining order.