R v Muhammad Khurshid

A post-acquittal restraining order under the Protection from Harassment Act 1997 may be made only where the statutory necessity test is established on admissible evidence. The defendant must receive proper notice of the proposed order, its reasons and supporting evidence, and a fair opportunity to adduce evidence and make representations. Where the prosecution offered no evidence and the issue first arises after acquittal, the court should ordinarily adjourn and give directions under the Criminal Procedure Rules 2020. The court must explain the factual basis and reasons for any order. Compliance with bail conditions does not itself show that protection is unnecessary. If an order is quashed for procedural unfairness, a fresh application may be made to the Crown Court.

The applicant was prosecuted at St Albans Crown Court for allegedly harassing his former wife in breach of a Family Court non-molestation order. After the prosecution’s application to adjourn the trial was refused, it offered no evidence and the applicant was acquitted in his absence.

The judge then made a five-year post-acquittal restraining order at the complainant’s request. The applicant challenged the order on procedural and substantive grounds, arguing that he had received no proper notice, had no effective opportunity to answer the application, and that the statutory necessity requirement was not established. The central issues were whether the procedure was fair and whether the order could lawfully be made on the evidential basis available.

1. Disposition. Leave to appeal was granted and the appeal was allowed. The post-acquittal restraining order was quashed. The Court could not substitute an order because there was no proper evidential basis before it. It could not conclude that no order might properly have been made.
2. Under section 5A of the Protection from Harassment Act 1997, a restraining order may be made after acquittal where protection is necessary. The civil standard applies. Conduct may justify protection even though it would not support a criminal conviction, and compliance with bail conditions does not necessarily make an order unnecessary: R v Major [2010] EWCA Crim 3016.
3. Where necessity is contested, the issue must be determined on admissible evidence, and the judge must identify the factual basis and explain the reasons for making the order: R v Brough [2011] EWCA Crim 2802; R v Baldwin [2021] EWCA Crim 703. Part 31 of the Criminal Procedure Rules 2020 requires notice of the proposed order, its basis and supporting evidence, together with an opportunity to adduce evidence and make informed representations.
4. The power to shorten or vary procedural requirements under rule 31.11 cannot displace natural justice. Where no evidence was offered at trial and the defendant had no opportunity to test the evidence or adduce evidence, the judge should ordinarily adjourn and give directions to secure compliance with Part 31: R v Davinder K [2012] 1 Cr. App. R. (S.) 88.
5. The judge’s failure to give notice, allow a proper hearing, identify an evidential basis or explain his reasons rendered the process unfair. Following R v Khan [2021] EWCA Crim 1526, quashing the order did not prevent the prosecution making a fresh application under section 5A. The prosecution was directed to give notice of any such application to the applicant and St Albans Crown Court within 28 days.

• Court of Appeal (Criminal Division): granted leave to appeal, allowed the appeal and quashed the post-acquittal restraining order. A fresh application under section 5A of the Protection from Harassment Act 1997 remained possible.
• Crown Court at St Albans: after the prosecution offered no evidence, the applicant was acquitted in his absence. The judge then imposed a five-year restraining order.