Kirby, R v

Where an appeal against convictions for breaching a non-molestation order raises an arguable issue about whether the order was validly made, the Court of Appeal may extend time and grant leave so that the issue can be determined by a full court. An asserted restriction in Family Law Act 1996 provisions governing who may apply for such an order was sufficiently arguable to justify that procedural course. The court did not determine the validity of the order or the convictions at this stage.

The appellant had pleaded guilty on two indictments to breaches of a non-molestation order and received custodial sentences in 2014 and 2015. The order had been made on 25 March 2014 under Family Law Act 1996 section 42, on the local authority's application.

On a renewed application, he sought an extension of time and leave to appeal his convictions. He contended that the local authority was not a person associated with him for the purposes of section 42(2), read with section 62, and that the order was therefore invalid. The central issue for the full court was whether that alleged defect could invalidate the convictions.

1. The court granted an extension of time, leave to appeal, and a representation order for junior counsel. The appellant's contention that the second non-molestation order may have been defective gave rise to an arguable appeal.

2. The issue arose because the order was made under Family Law Act 1996 section 42 on a local authority's application. The appellant relied on section 42(2), which permits an application by a person associated with the respondent, and section 62, which defines that expression. He submitted that the definition appeared to exclude public bodies.

3. The court made no determination on the construction of those provisions, the validity of the order, or whether the guilty-plea convictions should be quashed. Those questions were left for the full court.

4. It directed the appellant to report any application to set aside the 2014 order, notify the local authority of the appeal, provide the 2013 order, and serve the order on the local authority and prosecution.

• Court of Appeal (Criminal Division) — in [2018] EWCA Crim 598, granted an extension of time and leave to appeal, without deciding the substantive challenge to the convictions.
• Crown Court — the appellant pleaded guilty on two indictments to breaches of a non-molestation order and received sentences of 12 weeks' and five months' imprisonment respectively.