Baldwin, R. v

A post-acquittal restraining order under Protection from Harassment Act 1997 may be made even where the prosecution has offered no evidence. It is a civil order, determined to the civil standard, and is directed to the future risk of harassment.

However, the court must identify the admissible evidence relied upon, give the defendant a fair opportunity to answer it and explain why the order is necessary. Where relevant facts are disputed, a final order will usually require oral evidence. Current evidence about the protected person’s circumstances may be required to assess both necessity and duration.

The appellant was acquitted at Newcastle Crown Court after the complainant did not attend to give evidence and the prosecution offered none. The trial judge nevertheless made a restraining order on acquittal under section 5A of the Protection from Harassment Act 1997, prohibiting direct or indirect contact with the complainant.

The appellant appealed against that order. The central issue was whether the judge could properly find the order necessary without identifying the evidence relied upon, resolving relevant factual disputes, or considering current evidence of any risk of future harassment.

1. Appeal allowed. The restraining order was set aside. A judge was entitled to consider making an order after an acquittal where the complainant had not supported the prosecution. Such an order may be important for a person who still needs protection. It is civil in nature and may be made even if the prosecution has offered no evidence.
2. Section 5A of the Protection from Harassment Act 1997 nevertheless requires an evidence-based finding that an order is necessary to protect an identified person from future harassment. The civil standard applies. The statutory requirement of necessity must be addressed and explained. The defendant must have a fair opportunity to know the proposed order, the evidence supporting it, and to adduce evidence in response, consistently with the Criminal Procedure Rules 2020.
3. The judge had not clearly identified the evidential status of the material relied upon. It was unclear whether the complainant’s statement and the police statements were relied on, and whether contested evidence had been proved. The judge’s apparently inconsistent findings illustrated the unfairness arising from that failure. For a final order, relevant factual disputes will usually require oral evidence. The court must also identify the evidence establishing necessity, as recognised in R v Major [2010] EWCA Crim 3016.
4. There was also no current evidence concerning the complainant’s circumstances, despite the incident having occurred about 18 months earlier and the appellant having been subject to bail conditions during that time. That evidence was relevant to whether an order remained necessary and, if so, to its duration. A fresh application could be made to the appropriate court if supported by current evidence of a risk of harassment.

• Court of Appeal (Criminal Division) Allowed the appeal and set aside the post-acquittal restraining order: [2021] EWCA Crim 703.
• Newcastle Crown Court Entered not guilty verdicts after the prosecution offered no evidence, then made a restraining order on acquittal under section 5A of the Protection from Harassment Act 1997.