R v Jason Daniel Clark

For an offence of breaching a non-molestation order made without notice, the prosecution must prove that the defendant was aware of the order’s existence when the prohibited conduct occurred. It need not prove awareness of every term. An apparently valid court order remains binding unless and until set aside. A possible defect in service or wording may instead be relevant to reasonable excuse. At the no-case-to-answer stage, evidential inconsistencies capable of resolution by the jury do not justify withdrawing the case.

The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003 against a terminating ruling by a recorder at the Crown Court at Lewes, sitting at Hove. The respondent faced six alleged breaches of a non-molestation order made without notice under section 42 of the Family Law Act 1996.

The recorder ruled that there was no case to answer, holding that the order’s wording did not comply with the Family Procedure Rules 2010 and that the evidence could not prove awareness of the order’s terms. The central issues were whether formal service or awareness of the full terms was required for criminal liability, and whether the evidence was sufficient for the case to be left to the jury.

1. Appeal allowed. For liability under section 42A(2) of the Family Law Act 1996, the prosecution had to prove that the defendant was aware of the existence of the order when the relevant conduct occurred. It did not have to prove awareness of the order’s precise terms as an element of the offence.
2. The evidence was capable of establishing that the order and accompanying documents were sent to, and received by, the defendant by WhatsApp before the charged conduct. An apparent mistake in one message about the date of the hearing did not make the evidence incapable of proving service. The evidence as a whole was capable of supporting the necessary findings by the jury.
3. The Family Court order permitted service by WhatsApp. Even if its wording failed to comply with rule 6.19(3) of the Family Procedure Rules 2010, it remained valid and binding unless and until set aside. The principle stated in R v Kirby [2019] EWCA Crim 321; [2019] 4 WLR 131 applied. Any defect, or ignorance of precise terms, might bear on reasonable excuse, but was not a basis for ruling that there was no case to answer.
4. The recorder therefore erred in law in applying the second limb of the R v Galbraith test. The evidence provided an ample basis for a jury to find awareness of the order’s existence, and potentially awareness of some specific prohibitions.
5. The ruling was reversed and the Crown Court proceedings were directed to continue. The trial was to begin again before a different judge at a different court centre. Reporting restrictions under section 71 of the Criminal Justice Act 2003 were discharged, subject to preserving the anonymity of persons involved.

• Court of Appeal (Criminal Division): the prosecution’s application for leave to appeal was allowed. The terminating ruling was reversed and the Crown Court proceedings were directed to continue.
• Crown Court at Lewes (sitting at Hove): the recorder upheld a submission of no case to answer on six alleged breaches of a non-molestation order. The jury was discharged after the appeal was not expedited.