R v D

A restraining order may be imposed after an acquittal only where the evidence establishes a risk of future harassment and the order is necessary to protect the person concerned. Proof that a previous offence occurred is not required. However, past distress caused by learning that another person was abused does not itself establish a risk of future harassing conduct. Where a judge relies on conduct falling short of an acquitted offence, that conduct must be identified. Historical allegations, without evidence of future risk or subsequent inappropriate behaviour, may be insufficient.

The appellant was convicted in the Crown Court at Kingston upon Thames of attempting to sexually assault his older daughter, C1. He was acquitted of two alleged sexual assaults against his younger daughter, C2. Despite the acquittals, the judge imposed a restraining order under section 5A of the Protection from Harassment Act 1977 prohibiting contact with C2.

Permission was granted to appeal against that order. The central issue was whether the evidence established that an order was necessary to protect C2 from a future course of conduct amounting to harassment.

1. Appeal allowed. The restraining order protecting C2 was set aside.
2. Section 5A of the Protection from Harassment Act 1977 permits an order following an acquittal where it is necessary to protect the person from harassment. Proof that an offence occurred is unnecessary. The relevant question is whether the evidence establishes a risk of future harassment, namely conduct causing alarm or distress. The court applied the approach stated in R v Oshosanya [2023] 1 Cr App R (S) 34.
3. The judge was entitled to recognise the distress C2 suffered on learning that C1 had been abused. That distress did not itself establish a risk that the appellant would engage in future conduct causing distress to C2.
4. The judge also referred to inappropriate conduct towards C2, but accepted the jury’s verdict that the appellant was not guilty of sexual assault and did not identify the other conduct, falling short of the alleged offence, which was said to demonstrate a future risk of harassment.
5. The relevant conduct was historic. The alleged conduct towards the daughters occurred between approximately 2011 and 2016. C2 was now an adult, did not live with her parents, and there was no evidence of inappropriate conduct since 2016. The judge was wrong to treat the appellant as having been on bail for most of that period: bail ran only from 7 December 2022 to the acquittal on 29 February 2024. The low likelihood of reoffending in the pre-sentence report also did not establish the necessary future risk.
6. In the absence of evidence of future risk, the statutory necessity requirement was not met.

• Court of Appeal (Criminal Division) — [2025] EWCA Crim 104: appeal against the restraining order allowed and the order set aside.
• Crown Court at Kingston upon Thames: the appellant was convicted of attempted sexual assault against C1, acquitted of two sexual assaults against C2, and made subject to a restraining order protecting C2.