R v Robert McCarren

A restraining order following an acquittal under section 5A(1) of the Protection from Harassment Act 1997 may be made only where the court considers it necessary to protect a person from future harassment by the defendant. Necessity must rest on an identified evidential basis and cannot be inferred from an unreasoned order or from a complainant’s wish to feel better protected.

Consent to an order does not itself establish the statutory threshold. Where the conduct relied on is non-harassing communication about a child, and an existing protective order remains in force, there may be no sound basis for finding a future risk requiring a further restraining order.

The appellant was acquitted after the Crown offered no evidence on three counts of breaching a non-molestation order. The alleged breaches consisted of messages sent through a co-parenting application and concerning his son.

On the day of the acquittal, the Crown sought, and the appellant through counsel agreed to, a five-year restraining order preventing contact with his former wife. The Crown stated only that she would feel better protected after her existing non-molestation order expired. The appellant appealed against the restraining order.

The central issue was whether there was a sound evidential basis for finding that a restraining order was necessary to protect his former wife from future harassment.

1. Appeal allowed; restraining order quashed. Section 5A(1) of the Protection from Harassment Act 1997 permits an order after acquittal only if it is necessary to protect a person from harassment by the defendant. The statutory inquiry concerns future risk, assessed by reference to the defendant’s conduct.

2. The trial judge made no finding that the order was necessary and gave no reasons identifying evidence capable of supporting such a finding. The Court of Appeal could not assume that an unstated finding had been made.

3. On the material placed before the judge, necessity was not established. The only stated reason was that the appellant’s former wife would feel better protected after an existing non-molestation order expired. That did not demonstrate either a present or future risk of harassment. The messages relied on were accepted by the Crown, and found by the court, not to be vexatious or harassing. They concerned the appellant’s son and were sent through an approved application.

4. The court followed the requirement, stated in R v Major [2010] EWCA Crim 3016, that the factual basis and reasons for a restraining order must be identifiable. Consent could not supply the missing evidential basis for necessity. It was unnecessary to determine the factual dispute about whether the appellant had received informed legal advice before consenting.

5. The correction to the judgment confirms that Criminal Procedure Rule 31.3(2) and (3) did not apply. The applicable procedure was rule 31.3(6), which was followed, so no procedural error occurred. That correction did not affect the decision, which rested solely on the absence of a sound basis for finding necessity.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the restraining order imposed on acquittal.
• Crown Court at Preston: After the Crown offered no evidence on three counts of breach of a non-molestation order, entered not guilty verdicts and imposed a five-year restraining order on acquittal.