AJR v R.

A verdict of not guilty by reason of insanity is an acquittal for the purpose of section 5A of the Protection from Harassment Act 1997. A restraining order following such an acquittal nevertheless requires proof that the defendant is likely to pursue a course of conduct amounting to harassment. A single incident does not meet that statutory requirement.

The statutory requirement that an order be necessary for protection from harassment is stringent. Any order must be precisely tailored to the demonstrated risk and should not be used as an adjunct to mental-health powers.

The appellant was found not guilty by reason of insanity of attempted murder and wounding offences committed against his seven-month-old daughter during an acute deterioration in his mental health. Harrow Crown Court imposed a two-year supervision order and a five-year restraining order under section 5A of the Protection from Harassment Act 1997.

He appealed against the restraining order. He contended that a special verdict was not an acquittal for section 5A, that the statutory conditions for an order were absent, and that the order unjustifiably interfered with Article 8 rights. The central issue was whether section 5A permitted, and justified, a restraining order on these facts.

1. Appeal allowed. The restraining order was quashed.

2. A verdict of not guilty by reason of insanity is, in its ordinary meaning, an acquittal. It therefore falls within section 5A of the Protection from Harassment Act 1997. The contrast with a finding that an unfit accused did the act charged supported that conclusion, although the court did not decide whether section 5A applies to that latter finding.

3. The power under section 5A was not available merely because the original incident was grave or because a future relapse in mental health was feared. Following R v Mark Smith [2012] EWCA Crim 2566, the court had first to be satisfied that the defendant was likely to pursue a course of conduct amounting to harassment under section 1. The single incident involving the daughter was not a course of conduct within section 7. The evidence also did not establish likely repetition.

4. Section 5A requires an order to be necessary to protect a person from harassment. That requirement must not be diluted. Although unnecessary to the disposition, the court added that such an order must be carefully framed, tailored to the persons and risks established, and should take account of the views of an adult proposed to be protected. The welfare concerns concerning the children could instead be addressed by agreement with the local authority or, failing agreement, through the family courts under the Children Act 1989.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the restraining order: [2013] EWCA Crim 591.

• Harrow Crown Court: Following a special verdict of not guilty by reason of insanity, imposed a two-year supervision order and a five-year restraining order.