(1)If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.
(2)If an application is made under section 42(3) in relation to a restraint order or an order under section 41(7) the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—
(a)the person who applied for the order;
(b)any person affected by the order.
(3)On an appeal under subsection (1) or (2) the Court of Appeal may—
(a)confirm the decision, or
(b)make such order as it believes is appropriate.
Cases considering section 43 6
[2014] EWCA Crim 1244 · 25 June 2014
The court applied its statutory power on an appeal from refusal to vary or discharge a restraint order, allowing the appeals and making the appropriate varied or quashing orders. (see [13]; [34])
The court treated the power to make an appropriate order as permitting consideration of a transitional arrangement while a fresh restraint application was pursued on new evidence. (see [33])
[2011] EWCA Crim 143 · 8 February 2011Interprets
The court construed the power to confirm a decision or make any appropriate order as sufficiently wide to suspend the effect of its quashing order while a fresh Crown Court application was made. (see paras [27]; [111]-[116])
[2024] EWCA Civ 255 · 15 March 2024
A person affected by an order made on an application concerning a restraint order has a right of appeal. This forms part of the protections available to third parties. (see paras [15]; [31])
What each judgment says about section 43 is in the case-law panel in the full Act.
92.There is a general right of appeal against any order of the High Court in section 16 of the Supreme Court Act 1981. It applies to restraint orders made by the High Court and orders ancillary to them. The general right of appeal in the 1981 Act does not, however, apply to the Crown Court. Therefore, it has been necessary to create a specific right of appeal in the Act in relation to restraint orders made (or not made) by the Crown Court.
93.It is important to note that there is no right of appeal against the Crown Court’s decision to make a restraint order. The appeal lies only against the Crown Court’s decision to vary or discharge an order (or not to vary or discharge it). A person dissatisfied with a restraint order must first apply to the Crown Court for its variation or discharge before any appeal to the Court of Appeal is possible. This is because most restraint orders are likely to be made ex parte so the Crown Court will not have had the opportunity of hearing the defendant unless he applies to vary the restraint order.