Major, R v

Under section 5A(1) of the Protection from Harassment Act 1997, a restraining order may be made after an acquittal where it is necessary to protect a person from future harassment. The order is civil in character and the ordinary civil standard of proof applies.

The evidence need not prove past harassment on the balance of probabilities. Conduct falling short of harassment may justify an order if its repetition could amount to harassment and make protection necessary. The order does not contradict an acquittal. However, the judge must identify the factual basis for the order and give reasons sufficient to permit appellate review.

The appellant was tried at Maidstone Crown Court for putting a person in fear of violence through harassment, contrary to section 4 of the Protection from Harassment Act 1997. She was acquitted of that count. The jury did not reach a verdict on the alternative section 2 harassment offence.

After the acquittal, the Recorder made a 12-month restraining order under section 5A. It prohibited direct or indirect contact with the complainant, a 16-year-old fellow horse-owner. The appellant challenged both the legal basis for an order following an acquittal and the Recorder’s failure to identify the facts supporting it.

1. The appeal was allowed in part. The court rejected the submission that a restraining order on acquittal may be made only rarely or only on uncontested evidence. It nevertheless quashed this order because the Recorder had not identified the factual basis on which he found it necessary.

2. Section 5A(1) of the Protection from Harassment Act 1997 is directed to future risk. Parliament intended an order where protection is necessary, even though the evidence does not establish the charged offence to the criminal standard. The civil standard of proof applies. A court may find conduct proved on that standard despite an acquittal, without impugning the jury’s verdict. It may also act on conduct which falls short of harassment if repetition could amount to harassment and make an order necessary.

3. The evidence will usually be that heard at trial, but further admissible evidence may be received. Compliance with bail conditions is relevant but does not prevent an order. The court may conclude that compliance was secured by the risk of remand and that the protected person would otherwise remain at risk.

4. A judge making an order on acquittal must establish and state its factual basis and reasons. The court held that the reasoning requirements reflected in section 174(1) of the Criminal Justice Act 2003 and the practice concerning bind-over orders should be applied. In a contested case, an adjournment may assist the judge to consider the evidence and avoid any appearance of going behind the acquittal.

5. Here, all material allegations were disputed. The Recorder’s remarks did not reveal which allegations he accepted or whether he applied the civil standard. The Court of Appeal therefore could not determine whether the order was justified. It quashed the order. The court also gave obiter guidance that the Crown Court pro forma should be reviewed because wording referring to further conduct and fear of violence did not reflect section 5A(1).

• Court of Appeal (Criminal Division): Leave was granted and the appeal against the restraining order was allowed in part. The order was quashed: [2010] EWCA Crim 3016.
• Maidstone Crown Court: The appellant was acquitted of the section 4 offence. The jury did not reach a verdict on the alternative section 2 offence. The Recorder then made a 12-month restraining order under section 5A of the Protection from Harassment Act 1997.