Evans , R v

Where a restraining order uses ordinary English words, the court decides whether the words bear an ordinary or special meaning. If they bear their ordinary meaning, their application to proved facts is for the fact-finding tribunal. A criminal context does not require a specially narrow construction of terms such as abusive actions.

Restraining orders may prohibit conduct in reasonably general terms where this is needed to protect against further harassment. A reasonable misapprehension of an order’s scope may amount to a reasonable excuse under section 5(5) of the Protection from Harassment Act 1997, but the defendant must first raise an evidential basis for that excuse.

The appellant was convicted in the Crown Court at Cardiff of breaching a restraining order, contrary to section 5(5) of the Protection from Harassment Act 1997. The order prohibited her from being abusive by words or actions towards specified neighbours.

The conviction arose from an incident in which she moved her car so that a tradesman’s van visiting a neighbour was blocked between her car and the neighbour’s car. She appealed on the grounds that no reasonable jury could regard this as an abusive action, and that the jury should have received further direction on reasonable excuse.

The central issues were the proper interpretation of ordinary language in a restraining order and the circumstances in which a specific direction on reasonable excuse is required.

Decision

1. The appeal was dismissed. The judge correctly left it to the jury whether, in its ordinary sense and against the history between the neighbours, the deliberate blocking of the van was an abusive action directed towards the protected neighbour.
2. The approach in Cozens v Brutus [1973] AC 854 applies to a court order as well as to legislation. Whether words are used in an ordinary or special sense is a question of law. Where, as here, the words bear their ordinary meaning, the tribunal of fact decides whether they apply to the proved conduct. The issue should be withdrawn only if no reasonable jury could find that the conduct fell within the order.
3. The criminal context did not justify a strained or narrow construction of abusive actions. The phrase was understandable to an ordinary person. Nor did the more specific prohibitions in the order require the general prohibition to be read narrowly. Courts may use reasonably general terms in restraining orders because harassment can take many forms, and section 5(2) of the Protection from Harassment Act 1997 does not require every prohibited act to be specified with exactitude.
4. Under section 5(5), a reasonable misapprehension of an order’s scope can be a reasonable excuse. The defendant must, however, first raise an evidential basis for that issue. If raised, the prosecution must prove the absence of reasonable excuse and the jury may require a tailored direction. The appellant gave no evidence and raised no other evidential basis for reasonable excuse. The judge’s direction that the prosecution had to prove its absence was therefore sufficient.

• Court of Appeal (Criminal Division). Dismissed the appeal against conviction for breach of a restraining order.
• Crown Court at Cardiff. On 25 May 2004, convicted the appellant of acting in breach of the order. On 6 August 2004, imposed a £1,000 fine, with 45 days’ imprisonment in default.
• Cwmbran Magistrates’ Court. On 8 November 1999, convicted the appellant of harassment and made the restraining order forming the basis of the later charge.