Picken, R. v

On an unchallenged basis of plea, a sentencing court may rely on the complainant’s account except to the extent that it conflicts with that basis. It may in particular take account of the effect of the offender’s conduct upon the complainant.

A sentence for harassment involving fear of violence must reflect the actual violence, the reasonably caused fear, relevant previous offending and offending committed during a community order. A restraining order under section 5 of the Protection from Harassment Act 1997 should not be made without establishing a materially affected victim’s position where credible information indicates that the victim may wish to continue the relationship. The court should not substitute its own view of that choice.

The applicant pleaded guilty to putting his former partner in fear of violence through harassment and to common assault. The offences involved threats with knives, threats to kill, and a minor assault. He also admitted breach of a community order.

On 12 June 2006, the sentencing judge imposed two years’ imprisonment for the harassment offence, three months’ imprisonment concurrently for common assault, and a five-year restraining order under section 5 of the Protection from Harassment Act 1997. The order prohibited contact with the complainant and attendance near her home.

The applicant sought leave to appeal against both the custodial sentence and the restraining order. The central issues were whether the sentence was excessive and whether the order could properly be made without first establishing the complainant’s wishes.

1. The court refused leave to appeal against the custodial sentence. The two-year sentence was perhaps severe but was not excessive. The court took account of the basis of plea, while holding that the complainant’s statement remained relevant except where inconsistent with it. In particular, it could be used to establish the serious and wholly reasonable fear caused by the applicant’s conduct.

2. The sentencing assessment properly included the actual violence, the threats with knives, the complainant’s fear of injury or death, the offending during a community order, and the applicant’s substantial record of violence and conduct causing fear. The court had borne in mind the guidance in R v Liddle and Haynes [1999] 3 All ER 816, but distinguished it because the cases considered there involved breaches of restraining orders without violence.

3. Leave was granted and the appeal allowed in respect of the restraining order. The order had a considerable effect on the complainant as well as the applicant. Counsel had indicated that she might wish to resume the relationship, yet the sentencing judge had no confirmed information about her wishes.

4. In those circumstances, the judge should have adjourned the question under section 5 of the Protection from Harassment Act 1997 so that the police could speak to the complainant. If satisfied that she wished to continue the relationship, it would have been inappropriate to make the order. It was not for the judge to decide that she should not continue it. The court set aside the five-year restraining order rather than leave it in force pending an application for discharge.

• Court of Appeal (Criminal Division) — in [2006] EWCA Crim 2194, leave to appeal against the custodial sentence was refused. Leave was granted in respect of the restraining order, and the appeal was allowed to set that order aside.
• Sentencing court — on 12 June 2006, imposed two years’ imprisonment for harassment causing fear of violence, a concurrent three-month sentence for common assault, and a five-year restraining order. The court is not stated in the judgment.