R v Didier Auguste

A post-acquittal restraining order under the Protection from Harassment Act 1997 requires evidence establishing that the order is necessary to protect a person from future harassment by the defendant. The complainant’s wish for no contact, or the desirability of an order from that person’s perspective, is insufficient by itself. The court must identify the factual and evidential basis for the order, assess future risk and address proportionality. Consent does not remove procedural safeguards. An application must comply with the applicable Criminal Procedure Rules, and a restraining order must not be used as a bargaining chip in negotiations about offering no evidence.

The applicant was acquitted in the Crown Court at Inner London after the prosecution offered no evidence on a charge of intentional strangulation. On acquittal, the Crown Court imposed a five-year restraining order under section 5 A of the Protection from Harassment Act 1997, prohibiting contact with the applicant’s brother and attendance at their former home. The applicant sought an extension of time and leave to appeal, challenging procedural compliance, necessity, proportionality and the duration of the order. The appeal also raised the significance of the applicant’s consent and the effect on his housing arrangements.

1. Disposition. The court granted the extension of time and leave to appeal. It allowed the appeal and quashed the restraining order.
2. Applicable test. Section 5 A(1) of the Protection from Harassment Act 1997 requires the court to consider that an order is necessary to protect a person from harassment by the defendant. The inquiry concerns future risk and must be grounded in the defendant’s conduct and the evidence. The complainant’s preference for no contact is not a substitute for the statutory test. The court applied the principles in R v. McCarren [2023] EWCA Crim 1233, subject to correcting its procedural principle concerning the applicable rules.
3. Procedure. For a proposed restraining order, the relevant provisions were rules 31.2(1) and 31.3(6) of the Criminal Procedure Rules 2020, with the application made under rule 31.3(1)(c). Rules 31.3(2) and (3) did not apply. The procedural requirements were essential safeguards. They required the proposed order and supporting material to be identified so that the court could assess necessity. Consent did not dispense with those requirements.
4. Application. The prosecution’s offer to provide no evidence in exchange for consent to a restraining order wrongly focused attention on the bargain rather than the statutory requirements. The judge did not adequately assess future risk, identify the factual basis for the order or give sufficient reasons for necessity and proportionality. The principle that an order must be more than merely desirable from the complainant’s perspective was reaffirmed by reference to R v. Webb-Johnson [2025] EWCA Crim 1084.
5. The applicant’s future living arrangements, including the foreseeable housing consequences of exclusion from the property, also required express consideration. On the evidence, there was no sufficient basis to find a future risk of harassment necessitating an order. The court further indicated that a prosecutor should separately state that no evidence would be offered and that an application for a restraining order would be made.

• Court of Appeal (Criminal Division): granted an extension of time and leave to appeal, allowed the appeal and quashed the five-year restraining order.
• Crown Court at Inner London: acquitted the applicant after the prosecution offered no evidence and imposed a five-year restraining order under section 5 A of the Protection from Harassment Act 1997.