R v DFB

A restraining order following an acquittal is civil in nature, but it may be made only where the statutory conditions are met and the defendant has a fair opportunity to consider and challenge the proposed order and supporting evidence. Where the prosecution relies on new or hearsay evidence after offering no evidence at trial, the Criminal Procedure Rules require that evidence to be identified and properly served. Procedural unfairness at the original hearing is not cured by a later variation. The appropriate remedy is to quash the order, after which a fresh application may be made under section 5A of the Protection from Harassment Act 1997.

The appellant was prosecuted in the Crown Court at Lewes for alleged offences against his former partner, including rape, sexual assault and controlling or coercive behaviour. The prosecution offered no evidence after the complainant withdrew her support, while maintaining that her earlier accounts were truthful.

Following the acquittal, the Crown Court made a restraining order under section 5A of the Protection from Harassment Act 1997. The order was later varied and shortened. The appellant appealed, arguing that the prosecution had not properly identified or served the evidence relied upon, including hearsay evidence, or explained why the order was necessary. The central issues were whether the hearing was procedurally unfair and whether the later variation cured any defect.

Appeal allowed and restraining order quashed.

1. Section 5A of the Protection from Harassment Act 1997 permits a court, following an acquittal, to make a restraining order where it considers the order necessary to protect a person from harassment. The order is civil in nature and does not reflect on the defendant’s guilt. The civil standard of proof applies, but the statutory conditions must be met and fairly explained.

2. Under Criminal Procedure Rules 31.2, the defendant must have an opportunity to consider what order is proposed, why it is proposed and the evidence in support, and to make representations at a hearing. Rules 31.3 and 31.4 require the proposed prohibitions and any new evidence to be identified and served. Where hearsay is relied upon, the applicable procedures under rules 31.6, 31.7 and 31.8 must be observed.

3. R v Picken [2006] EWCA Crim 219 was factually different. It did not establish that a complainant must positively request or formally consent to a restraining order. The complainant’s position is relevant, but the statutory question is whether protection from future harassment is necessary.

4. The principles stated in John Baldwin [2021] EWCA Crim 703 applied. Although the evidence supporting the order was powerful, the process was procedurally unfair because the defendant had not been given the structured opportunity required by the Rules to consider and challenge the evidence supporting necessity.

5. The later variation did not cure the original unfairness. Following Khan [2021] EWCA Crim 1526, quashing the order did not prevent the CPS from making a fresh section 5A application to the Crown Court, which retained jurisdiction.

• Crown Court at Lewes: After the prosecution offered no evidence, HHJ Jeremy Gold KC made a restraining order under section 5A of the Protection from Harassment Act 1997. The order was later varied and shortened.
• Court of Appeal (Criminal Division): The appeal was allowed and the restraining order was quashed. The court held that the procedural unfairness was not cured by the later variation. A fresh application could be made to the Crown Court.