Kapotra v R.

A restraining order after an acquittal under Protection from Harassment Act 1997 may be made only where sound evidence establishes that it is necessary to protect a person from harassment. Such an order is serious because its breach is a criminal offence.

Where the court raises a proposed order of its own motion, the procedural safeguards in Part 50 of the Criminal Procedure Rules 2010 ordinarily require proper notice of the proposed order and its evidential basis, with a proper opportunity to challenge the evidence and make informed representations. The power to relax procedure does not displace those fundamental safeguards. In the absence of an established evidential basis, an adjournment should be considered so that those requirements can be met.

The appellant was charged at Woolwich Crown Court with sexual assault and common assault arising from an incident involving his estranged wife and her sister. After the prosecution offered no evidence, not guilty verdicts were entered.

The trial judge then imposed a restraining order under section 5A of the Protection from Harassment Act 1997, prohibiting contact with both women. The evidence before the court consisted principally of the sister’s written statement. Assertions about earlier allegations and a historic caution were not supported by evidence of their underlying facts.

On appeal, the appellant accepted that the judge had power to make the order but contended that necessity had not been established and that the procedural requirements in Part 50 of the Criminal Procedure Rules 2010 had not been observed.

1. Appeal allowed. The restraining order was quashed.

2. Section 5A(1) of the Protection from Harassment Act 1997 permitted a restraining order after acquittal only if necessary to protect a person from harassment by the defendant. The available material did not provide a sound evidential basis for finding that necessity in respect of either protected person.

3. The order was serious because breach could itself constitute a criminal offence under sections 5(5) and 5(6) of the Act. That seriousness reinforced the safeguards prescribed by Part 50 of the Criminal Procedure Rules 2010.

4. When the judge indicated, on the court’s own initiative, that a restraining order might be made, the hearing should have been adjourned to permit the procedural steps required by the Rules. The parties should have been given written notice identifying the evidence relied upon. Any hearsay evidence required compliant notice, and a party seeking to cross-examine its maker had to follow the applicable procedure.

5. The discretion in rule 50.9 to shorten time limits or permit a different form of notice had to be exercised consistently with the fundamental requirement of proper notice, disclosure of the evidential basis, and a proper opportunity to address the evidence and make informed representations. Following a trial, that discretion might properly be considered where the defendant’s representative had specifically had that opportunity. It could not cure the absence here of both procedural compliance and an established evidential foundation.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the restraining order.
• Woolwich Crown Court: After the prosecution offered no evidence and not guilty verdicts were entered on the two counts, the judge made a restraining order under section 5A of the Protection from Harassment Act 1997.