R v Babajide Oriyomi Oshosanya

A restraining order following acquittal under section 5A of the Protection from Harassment Act 1997 does not require proof of the substantive offence of harassment. The statutory question is whether, on the evidence, there is a risk of future harassment such that an order is necessary to protect the proposed protected person.

The court need not find that the person actually fears future harassment, nor apply the requirement for fear that violence will occur which governs the substantive stalking offence. A defendant must have a fair opportunity to adduce evidence, but an order is not unfair merely because the defendant did not give oral evidence where that opportunity was available and not taken.

The appellant was acquitted at St Albans Crown Court after the prosecution offered no evidence on a charge of stalking involving fear of violence or serious alarm or distress. Following the acquittal, the judge made a five-year restraining order protecting the appellant’s wife, her sister and her sister’s husband.

The evidence described alleged violence and threats during the marriage, subsequent unwanted contact, and visits by the appellant to addresses connected with his wife and children. The appellant appealed the order, contending that there was no qualifying course of conduct against the sister or brother-in-law, that the protected persons needed to fear a future event would occur, that he should have been permitted to give oral evidence, and that the order was excessive.

The central issue was whether the evidence made a restraining order necessary for protection under section 5A of the Protection from Harassment Act 1997.

1. Appeal dismissed. The judge was entitled to conclude that a five-year restraining order was necessary to protect the appellant’s wife, her sister and her brother-in-law.
2. The requirements of the substantive harassment offence were not the test for an order under section 5A(1) of the Protection from Harassment Act 1997. Although the offence under sections 1(1) and 7(3) requires a course of conduct amounting to harassment on at least two occasions, section 5A(1) requires the court to consider whether an order is necessary to protect a person from harassment by the defendant.
3. The relevant inquiry was whether the evidence established a risk of future harassment such that protective restraint was necessary. It did not directly concern the subjective nature of a protected person’s fears and did not require proof that the person actually feared harassment. On the evidence, the judge had made no error of principle in finding that risk. The evidence in any event showed that the wife, sister and brother-in-law had feared harassment.
4. The requirement, applicable to the substantive stalking offence, that a person fear violence will be used did not govern the section 5A inquiry. The appellant’s reliance on R v Qosja, Robert [2016] EWCA Crim 1543 therefore did not assist him.
5. Section 5A(2A) permitted the defence to adduce further admissible evidence. The defence had an opportunity to take instructions and lead evidence, but neither sought an adjournment nor applied to call the appellant. In those circumstances, the judge did not err by making the order without the appellant’s oral evidence.
6. The five-year duration was neither manifestly excessive nor erroneous in principle. Child-contact issues remained for the Family Court, and the appellant could apply to vary or discharge the order if circumstances later justified that course.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1794, dismissed the appeal and upheld the five-year restraining order made following acquittal.
• Crown Court at St Albans: Acquitted the appellant after the Crown offered no evidence on the stalking charge, then imposed a five-year restraining order under section 5A of the Protection from Harassment Act 1997.