R v Robert Selvage

For an offence under the Sentencing Act 2020, section 363(1), reasonable excuse involves a two-stage burden. The defendant must raise the issue evidentially. The prosecution must then make the jury sure that the conduct was not covered by a reasonable excuse. A conviction following a material misdirection placing a persuasive burden on the defendant is unsafe where the defence was not left according to law, even if the breach and underlying facts were admitted. Disagreement with, or inconvenience caused by, a restraining order may not amount to reasonable excuse, particularly where lawful alternative channels of communication exist.

Following a trial at the Crown Court at Chelmsford, Robert Selvage was convicted on 17 February 2025 of breaching a restraining order. He admitted the order, the communications and the breach, but relied on reasonable excuse, saying that he wished to re-establish contact with his children. The Recorder directed the jury that he had to prove reasonable excuse on the balance of probabilities. The prosecution accepted that this direction was wrong but disputed that the conviction was unsafe. The central issues were the effect of the misdirection and whether a retrial should be ordered.

The court granted leave to appeal and allowed the appeal.

1. Under section 363(1) of the Sentencing Act 2020, the defendant bears only an evidential burden to raise reasonable excuse. Once that issue is raised, the prosecution bears the burden of satisfying the jury so that they are sure that the defendant had no reasonable excuse. The court relied on R v Evans [2004] EWCA Crim 3102, R v Chambers [2009] EWCA Crim 1570, R v Damji [2020] EWCA Crim 1774 and R v Leslie Arden [2022] EWCA Crim 906. Those decisions concerned materially identical precursor provisions.
2. The Recorder’s direction imposed the wrong burden and standard of proof. Although the appellant’s breach, knowledge of the order and factual account were admitted or unchallenged, the issue of reasonableness remained for the jury. The court could not assume that the error made no practical difference. The conviction was therefore unsafe and was quashed.
3. The court observed that reasonable excuse might not extend to disagreeing with, or choosing to flout, a restraining order, particularly where the order provided lawful routes for communication. It also observed that an excuse might relate only to some communications and not to messages unrelated to child contact. These matters had not been properly left to the jury.
4. A retrial was ordered on the single count. A fresh indictment was directed within 28 days, with re-arraignment within two months. The venue was left to the presiding judge of the South Eastern circuit.
5. The case was remitted to the Crown Court under section 5A(3) of the Protection from Harassment Act 1997 to consider whether to proceed under the restraining-order-on-acquittal provision. Bail was granted on conditions mirroring the former order. The court directed that the prescribed routes for indirect contact remained available, but that reasonable excuse was irrelevant to the unqualified bail condition.
6. The court also directed that the standard order and sentencing remarks be sent to the prosecution and any Crown Court judge dealing with sentencing, following R v AB [2021] EWCA Crim 692.

1. Court of Appeal (Criminal Division): appeal allowed, conviction quashed and retrial ordered; the case was remitted to the Crown Court for consideration under section 5A(3) of the Protection from Harassment Act 1997. [2025] EWCA Crim 1536
2. Crown Court at Chelmsford: conviction on 17 February 2025 for acting in breach of a restraining order.