R v Gino Mari

A restraining order made following an acquittal is a civil order directed to future risk. It may be made only where the statutory condition of necessity is established on the evidence and on the civil standard of proof.

Where the court considers imposing such an order after no evidence has been offered, procedural fairness and the Criminal Procedure Rules require the proposed subject to know the order and evidential basis proposed, and to have a fair opportunity to answer it. A prohibition on contact with children requires evidence that it is necessary and proportionate. A general observation about domestic abuse cannot replace that evidence or justify a lengthy and draconian restriction.

The appellant was tried in the Crown Court at Harrow for strangulation alleged against his former partner, with whom he had children. When the complainant did not attend the relisted trial, the prosecution offered no evidence and the judge directed an acquittal.

On the same day, the Crown Court imposed a five-year restraining order. It prohibited contact with the complainant and the children, while allowing contact to be sought indirectly through specified intermediaries. The appellant challenged the restriction concerning the children as unnecessary, disproportionate and internally inconsistent. A later application under the slip rule had been refused.

The central issue was whether the post-acquittal order restricting contact with the children was justified by evidence, necessity and compliant procedure.

1. Appeal allowed. The court varied the restraining order by removing the prohibition on the appellant contacting the children. The unchallenged restraint protecting the complainant remained in force for five years.
2. Under Protection from Harassment Act 1997, section 5A, a restraining order after acquittal is a civil order. It does not determine guilt, is decided on the civil standard, and concerns future behaviour which may amount to the relevant course of conduct. The statutory requirement that an order be necessary to protect a person from harassment must be applied, rather than treated as a formality.
3. A restraining order on acquittal is a criminal behaviour order for the purposes of the Criminal Procedure Rules. Where the prosecution seeks one, or the judge considers one after no evidence has been offered, the proposed subject must be able to consider what is proposed, why it is proposed, and the evidence relied on, and must have an opportunity to adduce evidence against it. The required safeguards had not been applied to the restriction concerning the children.
4. The restriction on contact with the children was unsupported by evidence from them, their mother, or anyone acting for them about its desirability or impact. There was also no evidence that it was necessary. The existing restraint on contact with the complainant already prevented further domestic abuse between the adults. The judge's general observation that domestic violence is child abuse could not establish necessity in these circumstances.
5. It was also inappropriate to make the criminal restraint subject to an order of the Family Court. A criminal court must impose such an order because it is necessary, not because a family court might consider a similar measure desirable. Its five-year duration would have prevented contact during the children's transition from childhood and was draconian, particularly after acquittal and where the prosecution had not sought that restriction.

The amended order prohibited direct or indirect contact with the complainant, while permitting the appellant to seek agreement about contact with the children through his sister, Social Services or solicitors.

• Court of Appeal (Criminal Division). Allowed the appeal and varied the restraining order to remove the restriction on contact with the children.
• Crown Court at Harrow. On 22 March 2023, after the prosecution offered no evidence and the appellant was acquitted, imposed a five-year restraining order. At a later slip-rule hearing, the court refused to vary the order.