Barber v Crown Prosecution Service

An offence under section 5(5) of the Protection from Harassment Act 1997 is one of strict liability and does not require proof of mens rea. The prosecution must nevertheless prove the existence and terms of the restraining order. Formal documentary proof is not essential. Admissible evidence, including an accused’s admission or confession, may establish the order and its terms. Evidence from a police interview is admissible under section 76 of the Police and Criminal Evidence Act 1984 where it is relevant to that issue.

The appellant was convicted by the South Worcestershire Justices of breaching a restraining order by playing loud music. The prosecution relied, among other evidence, on the appellant’s police interview to establish the existence and terms of the order. The justices concluded that documentary production of the order was unnecessary and that the interview evidence proved the order.

On appeal by way of case stated, the central issues were whether the offence was one of strict liability, whether the order had to be formally proved under rule 68 of the Magistrates’ Courts Rules 1981, and whether the evidence adduced was sufficient.

1. The appeal was dismissed.
2. The offence of breaching a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997 is one of strict liability. Proof of mens rea is unnecessary.
3. The prosecution was required properly to prove the existence and terms of the restraining order. The requirement was not one of formal proof in a particular documentary form. A certified copy of the court record was one possible method, but it was not the only method.
4. Under section 76 of the Police and Criminal Evidence Act 1984, a relevant confession or admission could be given in evidence unless excluded under that section. The appellant’s answers in interview were capable of amounting to an admission that the order had been made and that it contained the terms described by the police officer.
5. The appellant’s possible misunderstanding as to whether the order remained in force concerned, at most, the statutory defence of reasonable excuse. It did not prevent the interview from constituting evidence of the order’s existence and terms.
6. The justices were entitled to conclude that the order and its terms had been proved to the criminal standard. They were also entitled to find the alleged breach proved, which was not challenged on appeal.

The questions posed in the case stated were answered accordingly: yes, the offence was one of strict liability; formal proof under rule 68 was unnecessary, although proper proof was required; admissible evidence had been adduced; and the justices were entitled to be satisfied that the order had been proved.

1. High Court (Administrative Court): On 25 October 2004, the appeal by way of case stated was dismissed.
2. South Worcestershire Justices: The appellant was convicted on 16 April 2004 and fined £50, with £50 costs, for breaching the restraining order.