AD, R. v

An extended sentence is justified where the offender presents a significant continuing risk of serious harm and an extended period of post-release supervision is essential, even if other protective measures may also be available.

A restraining order under Protection from Harassment Act 1997 must protect an identified person or a sufficiently identifiable group. It cannot impose restrictions for the protection of an indeterminate class equivalent to the public at large. A criminal behaviour order may instead impose appropriately tailored restrictions on contact with children where its statutory conditions are met. On sentence appeal, a procedural failure to seek such an order below does not prevent the Court of Appeal substituting it where the Crown Court had the general power to make it.

The appellant pleaded guilty in the Crown Court at Canterbury to three offences of administering noxious substances to her four-year-old child and to child cruelty. The sentencing judge imposed concurrent extended sentences of eight years, comprising five years’ custody and a three-year extension period. She also made an indefinite restraining order prohibiting unsupervised contact with any child under 16 and work involving contact with children.

The appellant challenged the finding of dangerousness and the need for an extended sentence. Following concerns raised by the Court, she also challenged the restraining order’s lawfulness. The central issues were whether the extended sentence remained necessary and whether the Court could replace an unlawful restraining order with a criminal behaviour order.

1. The appeal against the extended sentence was dismissed. The judge was entitled to find that the appellant posed a significant risk of serious harm to any child with whom she might come into contact. The psychiatric evidence was compelling. An extended sentence was necessary to provide an unusually long period of supervision after release, and remained necessary whether or not a restraining order was in force.

2. The appeal against the restraining order was allowed. Under section 5 of the Protection from Harassment Act 1997, an order must protect the victim or another person identified in the order. Applying Smith [2012] EWCA Crim 2566, the court held that “any child under 16” was an impermissibly broad and unknown class. The order effectively sought to protect the world at large. The broader protection available under sexual harm prevention orders could not be transplanted into a restraining order for non-sexual offending.

3. The court quashed the restraining order and substituted an indefinite criminal behaviour order under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014. The appellant’s deliberate poisoning of her child satisfied the harassment, alarm or distress condition. The order would help prevent repetition, including after the extended-sentence licence period ended. The child-barring regime did not adequately address unpaid babysitting within a personal relationship.

4. Section 11(3) of the Criminal Appeal Act 1968 did not prevent substitution. The Crown Court had the general power to make a criminal behaviour order. The absence of a prosecution application below was a procedural impediment, not a limit on that power. The prosecution’s detailed appellate submissions sufficiently fulfilled the procedural purpose of an application.

5. The substituted order was to be entered as an order of Canterbury Crown Court. It prohibited unsupervised contact with children under 16, subject to defined exceptions for inadvertent contact, informed parental or guardian consent, social-services approval, or a Family Court order.

• Court of Appeal (Criminal Division): By [2019] EWCA Crim 1339, dismissed the sentence appeal but allowed the appeal against the restraining order, quashing it and substituting an indefinite criminal behaviour order.
• Crown Court at Canterbury: On 28 June 2018, imposed concurrent extended sentences of eight years and made the restraining order subsequently quashed on appeal.