Herrington, R v

A restraining order under section 5 of the Protection from Harassment Act 1997 cannot be used to prevent a competent adult from freely choosing to remain in a relationship with a violent partner. Serious concern about further domestic abuse does not displace that adult’s autonomy. Nor should a criminal court use such an order to keep parents apart for a child’s protection, since the family court is equipped to make the necessary welfare assessment. Protection for probation staff must be sought directly for those staff. The restraining order was therefore quashed.

The appellant was sentenced by the Recorder of York to 12 months’ imprisonment for assaults on his partner and another man, committed shortly after his release from custody, and for breach of a non-molestation order. The judge also imposed a three-year restraining order under section 5 of the Protection from Harassment Act 1997, prohibiting contact with the appellant’s partner.

The partner was supporting the appellant and wished to continue their relationship. The probation service assessed him as presenting a high risk, including to the couple’s child and to probation staff. The appeal concerned only whether those risks could justify the restraining order despite the partner’s autonomous wish to remain with him.

1. Appeal allowed. The restraining order was quashed. The custodial sentences and all other orders remained in force.
2. A restraining order could not lawfully be used to stop an adult from deciding freely whom to live with. The court accepted the approach in R v Brown [2012] EWCA Crim. 1152. Although the appellant’s history and the recent violence gave grave cause for concern, his partner was an adult entitled to make her own decision. Her unambiguous wish was that the order be revoked. The criminal court could not use the order to protect her against the consequences of that free choice.
3. The risk to the couple’s child did not justify maintaining an order that compelled the parents to live apart and not communicate. Assessment of the risk, the protective measures required, and the child’s best interests required evidence from the parents and appropriately qualified social workers. Those matters should be addressed by the family court, which was the proper forum for any necessary protective proceedings.
4. Concern for probation staff could not justify an order whose practical object was to keep the appellant and his partner apart. If protection for staff was needed, the probation service could seek an order directed to that purpose, whether by a restraining order or an order of the County Court.
5. The sentencing judge had acted with good intentions and on a well-founded fear of harm. Those considerations did not supply a lawful basis for the order.

• Court of Appeal (Criminal Division): Allowed the appeal against the restraining order and quashed it: [2017] EWCA Crim 889.
• Recorder of York: On 1 March 2017 imposed a total sentence of 12 months’ imprisonment and a three-year restraining order under section 5 of the Protection from Harassment Act 1997.