Jose, R. v

A restraining order following an acquittal under section 5A of the Protection from Harassment Act 1997 requires a proper factual basis for finding both that the defendant is likely to pursue a course of conduct amounting to harassment and that the order is necessary to protect the proposed protected person. Necessity must not be diluted, because the order criminalises otherwise lawful conduct.

Harassment requires persistent, seriously oppressive conduct targeted at an individual; conduct causing alarm or distress does not automatically suffice. The court must give reasons based on findings it has actually made. It cannot uphold an order by relying on findings that might have been made. The post-conviction reference to fear of violence in section 5 does not govern an order after acquittal under section 5A.

The appellant was acquitted in the Crown Court at Aylesbury of possessing a bladed article in a public place. The prosecution nevertheless sought, and the judge made, a two-year restraining order under section 5A of the Protection from Harassment Act 1997 to protect a neighbour of the appellant’s former partner.

The order prohibited contact with the neighbour and attendance at her address. The judge relied principally on the appellant’s admission that, while angry, he had kicked the neighbour’s door and on bad feeling between them. The appellant appealed, contending that the statutory requirements for an order following acquittal had not been established.

1. Appeal allowed. The restraining order was quashed. The judge had not made findings capable of establishing the statutory conditions for an order under section 5A of the Protection from Harassment Act 1997.

2. The court applied the principles in Smith [2012] EWCA Crim 2566. Before making an order after acquittal, the court must be satisfied that the defendant is likely to pursue a course of conduct amounting to harassment and that an order is necessary to protect the proposed protected person. Harassment is not established merely because conduct may alarm or distress. It requires persistent conduct of a seriously oppressive nature directed at an individual and causing fear or distress.

3. The judge did not find that the appellant was likely to repeat his conduct or to pursue a course of harassment. On the contrary, the judge said that the appellant probably would not return to cause trouble. Nor did the judge find that the order was necessary, describing it instead as appropriate and reasonable. The appellate court had to assess the legality of the order by reference to the findings actually made, rather than findings which might have been available on the evidence.

4. The judge also failed to identify and explain an adequate factual foundation for the order, contrary to the guidance in Lawrence [2012] EWCA Crim 1164 and Major [2010] EWCA Crim 3016. Further, references to protecting the neighbour from fear of violence wrongly imported language from section 5, which concerns orders after conviction and is not replicated in section 5A.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the restraining order: [2013] EWCA Crim 939.
• Crown Court at Aylesbury: On 25 January 2013, acquitted the appellant of possessing a bladed article and made a restraining order under section 5A of the Protection from Harassment Act 1997.