Richards, R. v

For an offence of breaching a non-molestation order under Family Law Act 1996, the prosecution must prove the absence of a reasonable excuse. A defendant who admits conduct prohibited by the order does not bear the legal burden of proving that excuse on the balance of probabilities.

Where the jury is directed that the defendant bears that burden and reasonable excuse is the sole live issue, the resulting conviction is unsafe and must be quashed. Authorities on materially identical reasonable-excuse provisions should be applied consistently.

The appellant was convicted at Maidstone Crown Court, by a majority verdict, of breaching a non-molestation order. The order prohibited him from contacting the complainant and from going within 25 metres of specified premises.

He admitted going to the premises but said that he had a reasonable excuse because he was concerned for the safety of his sons. The trial judge directed the jury that he had to establish that excuse on the balance of probabilities. The appeal concerned whether that direction correctly allocated the burden of proof under section 42 A of the Family Law Act 1996.

1. Appeal allowed; conviction quashed. The direction placed the burden of proof on the appellant in relation to the only issue at trial. The conviction was therefore unsafe.
2. Section 42 A(1) of the Family Law Act 1996 makes breach of a non-molestation order an offence when committed without reasonable excuse. Once reasonable excuse was in issue, the Crown had to prove its absence. The appellant did not have to establish its existence on the balance of probabilities.
3. The court accepted that section 42 A was materially in the same terms as section 1(10) of the Crime and Disorder Act 1998 and section 5(5) of the Harassment Act 1997. The approach in R v Dorothy Evans [2004] EWCA Crim. 3102 and R v Charles [2009] EWCA Crim. 1570 accordingly applied. Those decisions made clear that the burden lay on the Crown.
4. The court stated that the ruling should make the allocation of the burden clear in future cases involving these materially equivalent provisions.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction as unsafe because the jury had been misdirected on the burden of proof.
• Crown Court at Maidstone: The appellant was convicted, by a majority verdict, of breach of a non-molestation order and received a suspended sentence with an unpaid work requirement.