Shaw v Director of Public Prosecutions

On a subsequent application to discharge a restraining order made under the Protection from Harassment Act 1997, the applicant must show a material change in circumstances. The court need not rehear the original merits afresh on every application. The question is whether events occurring since the previous decision mean that continuing the order is no longer necessary or appropriate. This follows from the continuing validity of an order made until further order, the principle of finality in litigation and the need to prevent wasteful or abusive repeat applications.

The appellant appealed by way of case stated against District Judge Cooper’s refusal, on 27 September 2004, to discharge a restraining order made against him in 1999 under section 5(1) of the Protection from Harassment Act 1997. The order prohibited contact with his wife and continued until further order. Earlier applications to discharge it had been refused.

The District Judge considered that a change of material circumstances was a primary consideration under section 5(4), although the statute contains no express requirement to show such a change. The central issue was whether a subsequent applicant must establish a change in circumstances since the previous dismissal, and whether the court must conduct a full evidential hearing on the merits each time.

1. Appeal dismissed. The District Judge was correct to treat material change of circumstances as a primary consideration on the application under section 5(4) of the Protection from Harassment Act 1997.
2. Section 5(4) contains no express requirement for a change in circumstances. However, section 5(3) permits an order to continue until further order. In the absence of an appeal, such an order remains valid according to its terms.
3. Accordingly, on a subsequent application the applicant must show that something has changed since the earlier decision, so that continuation of the order is no longer necessary or appropriate. The court is not required to redetermine the merits of the original order or earlier discharge decisions afresh.
4. The principle is supported by Regina v Nottingham Justices, ex parte Davis [1980] 71 Crim App R 178, concerning successive applications for bail. The distinction between finite bail decisions and a restraining order made until further order does not displace the need to show changed circumstances.
5. Permitting repeated applications without such a change would undermine finality in litigation, waste judicial resources and potentially amount to an abuse of the court’s process. The appellant’s application was therefore properly dismissed.
6. The respondent withdrew its application for a contribution towards costs. An order was made for detailed assessment of the appellant’s costs for the purposes of the Legal Services Commission.

• High Court (Administrative Court) — appeal by way of case stated dismissed, affirming the District Judge’s decision of 27 September 2004.
• Nottingham Magistrates’ Court — repeated applications to discharge the restraining order were refused, including the application determined on 27 September 2004.