Neutral Citation Number: [2006] EWCA Crim 2917
Case No: 2006/04613
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MERTHYR TYDFIL
HIS HONOUR JUDGE CURRAN

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 November 2006
Before :

LORD JUSTICE PILL
MR JUSTICE TEARE
and
THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE CRIMINAL APPEAL COURT)
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Between :

	The Queen	Respondent	
	and		
	Mark Anthony Bradfield	Appellant	

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MR SIMON HUGHES  for the Appellant
MR IEUAN REES for the Respondent

Hearing date : 14 November 2006
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Judgment
The Recorder of Cardiff :
1.	This is an appeal, by leave of the single judge, against the refusal by His Honour Judge Curran sitting in the Crown Court at Merthyr Tydfil to vary a restraining order. It is necessary to refer to the background of the case in some detail.
2.	The appellant and Debra Phillips were in a relationship for some three years, during which time, they had two children together. That relationship ended in August 2001 when Ms Phillips ordered the appellant out of the house they occupied at 4 Porth Place, Porth in the Rhondda Valley. Thereafter he called at the house on many occasions and was verbally abusive to Ms Phillips but of greater concern to her was a series of events which led her to the conclusion that someone was entering her house in her absence. Her concerns were such that she had CCTV cameras installed and so it was that the appellant was caught on camera entering the house on 7th March 2004 and moving from room to room going through drawers and on 22nd March 2004, when he was seen to steal a pair of underwear briefs before going upstairs where he masturbated, sitting on her bed and ejaculated on to the bedclothes. Following his arrest, police officers found a number of photographs at his home at 61 Eirw Road, Porth, of Ms Phillips, her sister and the appellant with their heads cut out. When Ms Philips was shown these photographs she said “it makes me think he is warped”. In her witness statement, she said of the incidents caught on CCTV, “This whole incident has made me feel dirty, knowing he has been in my house and through all my things. I can’t wait to thoroughly clean the house. I don’t know what I have done to deserve this. I feel trapped and invaded”. 
3.	On 11th June 2004, in the Crown Court at Merthyr Tydfil, the appellant pleaded guilty to an offence of burglary and theft of underwear [count 1], an offence of damaging property [count 2] and to an offence of harassment, contrary to section 2 of the Protection from Harassment Act 1997, committed to the Crown Court in accordance with the provision of section 41 of the Criminal Justice Act 1988.. He was sentenced on 9th July 2004 by Her Honour Judge Eleri Rees to concurrent community rehabilitation orders for 12 months for the offences of burglary and damaging property and to a restraining order for the offence of harassment.
4.	The restraining order, which was expressed to be without limit of time, restrained the appellant “from communicating, whether directly or indirectly, other than through solicitors or under the terms of a court order or by whatsoever means with the complainant, Deborah Ann Phillips, from entering or approaching within 500 yards the areas of Porth Place, Porth, Rhondda”.
5.	The appellant has complied with the terms of the restraining order, although compliance has been made the more easy by reason of his employment as a long-distance lorry driver which took him away for long periods of time. However, on 16th May 2006, he lost that employment following his conviction of an excess alcohol offence and consequential disqualification from driving  for three years. He applied for a variation of the restraining order to enable him to attend at the offices of the Department of Health and Social Security and the Job Centre in Porth – the former is within a very short distance of Porth Place, the latter is further away but within 500 yards of Porth Place – and to use public transport – the railway station is within 500 yards of Porth Place and because of a one-way traffic system in the town, buses pass within yards of the home of Ms Phillips.
6.	The application was listed before His Honour Judge Curran on 3rd August 2006 when he adjourned the application for enquiries to be made of Ms Phillips. When told of the application she said she opposed a variation and wrote a letter dated 10th April 2006, the terms of which were incorporated in a witness statement dated 13th August 2006;  it was that statement which the learned judge considered when the application was listed before him on 14th August 2006.
7.	On 14th August 2006, for reasons to which we will refer later, he refused the application and it is against that refusal that the appellant sought and was granted leave to appeal.
Jurisdiction

8.	While section 5(4) of the Protection from Harassment Act 1997 provides that the prosecutor, the defendant or any other person mentioned in the order may apply to the court which made a restraining order for it to be varied or discharged by a further order, it makes no provision for an appeal and so the issue arose as to whether a refusal to vary a restraining order is a sentence for the purposes of section 9 of the Criminal Appeal Act 1968. All the examples listed in section 50(1) of the 1968 Act, which provides that “sentence” in relation to an offence includes any order made by a court when dealing with an offender, are of orders and not of refusals to make an order and the Divisional Court decision in Lee v Leeds Crown Court [2006] EWHC 2550 (Admin) may provide authority for the conclusion that a refusal to vary is not a “sentence” or order.  The resolution of this issue is by no means straightforward and while Mr Rees, who was only alerted to the issue the day before the hearing of the appeal had carried out some researches, we did not have the benefit of full and detailed submissions.  We have decided it is unnecessary to resolve the issue because the appeal can proceed (with the necessary extension of time) as an appeal against the original order, It seems the single judge may have anticipated the problem when giving leave because he treated the application as an application to appeal against the original order and granted the necessary extension of 2 years, 1 month and 1 week.  However, we would not want this case to be taken as authority either for the proposition that the court has jurisdiction to hear an appeal against a refusal to vary a restraining order or that extensions of time should routinely be granted to permit appeals against what may be long-standing orders.
The Application

9.	The learned judge considered the witness statement of Ms Phillips, in which she set out her objections at some length. After providing information from others (all unidentified) of the appellant’s heavy drinking, she said:
“My fears even now are that in a drunken rage, Mr Bradfield would further break the existing restraining order (just as he broke his bail conditions while awaiting trial) and bring untold misery to my family, especially my children who have gone through enough in their young lives. A shorter distance from my home would undoubtedly bring misery and discomfort within the home, creating the effect of a goldfish bowl. Mr Bradfield has chosen to have no contact with our children since his sentencing 2 years ago, even though supervised access was suggested to him by my solicitor at the time. ..I understand the restrictions imposed on Mr Bradfield are making his life a little less simple than he would like but I feel any problems Mr Bradfield has, he has brought on himself and should have no bearing on our lives whatsoever. The trauma my children and I have suffered during the past few years will never entirely leave us but we are continuing to live our lives as best we can. My ultimate goal is to ensure that my children are safe, secure and above all happy in and around their own home and environs.”
10.	No evidence was called before the learned judge who heard representations only from counsel for the appellant.  In his Ruling, the learned judge said:
“In a situation like this the court has some sympathy for the defendant, as I made clear when the application was originally made before me. But I was the one who pointed out that in a situation like this, the subject of the Restraining Order is entitled to make an application to the court that the person in whose favour the Order is made, and for whose protection the Order is made, is also entitled to be heard. And I adjourned the application in order to see what Deborah Ann Phillips’ approach to the matter was.  I was told, at an interim hearing following the adjournment, that she had been evincing considerable distress at the idea of a variation of the Order, when spoken tot by a police officer about it. And I adjourned the application again in order that a proper section 9 statement should be taken from her setting out her position; and that is now before the court. And indeed it incorporates what was in effect a letter written by Ms Phillips, presumably for the sight of the court, dealing with her approach to the matter is(sic).  Mr Rees rightly points out that a number of matters in the letter are hearsay, in the sense that Mrs Phillips is referring to incidents which have occurred, which have been reported to her by other people. It has not been suggested that the defendant has broken the Order in any way, and that is the basis upon which I approach the application.  At the same time however, while the court obviously has to have consideration for the effects of the Order on the defendant, it also has a duty to consider the effects of the Order on the victim. And I reminded myself of the particular history which led to the making of the Order, and the conviction in the first place, because I was not at the end of the day the sentencing judge. And therefore, “while I set aside and ignore much of what is said by Deborah Ann Phillips in her letter, in the sense that it is material revealed to her by third parties who are not identified and who are not before the court, and it is therefore inadmissible hearsay”, the fact remains that the whole episode had a profound effect upon her. It continues to have some effect upon her. And she views with dread, I think that is the only word which one can describe it, a variation of the Order which would allow the defendant to go within the 500 yards prohibited zone. And it is clear that she derives considerable support and encouragement and feels a considerable sense of safety and security, as a result of the Order as it presently stands.  And in the circumstances, weighing everything up as I have to do, I have come to the conclusion that the interests of the victim have to be given priority in this case, and I will not in those circumstances vary the Restraining Order.”

The Grounds of Appeal

11.	It was submitted that the learned judge erred in one or more of the following respects:
(1)	he failed properly or at all to consider that the existing Order is unfair in that it seriously reduces the capacity of the Defendant to seek employment and/or restricts his ability to travel to any such employment.

(2)	he failed properly or at all to consider that the existing Order, by restricting the defendant’s ability to travel, puts him at a disadvantage in the labour market.

(3)	he failed properly or at all to conduct a proper hearing in to the defendant’s application to vary by (a) admitting hearsay and/or failing to allow the defendant to test the complainant’s evidence by cross-examination and/or (c) failing to accept any evidence from the defendant himself to contradict the hearsay evidence contained in the complainant’s statement. It is submitted that in the circumstances the hearing was not conducted within the rules of natural justice.

12.	We consider the third ground of appeal first.  As is clear from the underlined passage in the Ruling to which we referred in paragraph 10 above, the learned judge expressly ignored all the hearsay and so that evidence did not have to be tested by cross-examination or contradicted by evidence from the defendant. Mr Rees, who accepted that Ms Phillips is clearly genuine in her anxiety about future contact with the defendant did not pursue his natural justice argument, in our view rightly, having regard to the learned judge’s approach to ignore the inadmissible hearsay evidence and to the lack of evidence to which we refer in paragraph 15 below.  
13.	Contrary to Mr Rees’ submissions it is clear from the learned judge’s Ruling that he did have regard to the problems faced by the defendant who has to use public transport and who is looking for employment – he said  “the court has some sympathy for the defendant”. We observe the defendant may be deserving of more sympathy had he not brought the change in his circumstances upon himself.
14.	As it is agreed Ms Phillips has a continuing anxiety about future contact between her and the children and the appellant, the learned judge had to consider the balancing exercise of affording her the continuing protection of a restraining order while at the same time not prejudicing the appellant’s employment opportunities and his ability to travel by public transport. 
15.	Upon inquiry of Mr Rees, there was no evidence put before the learned judge on behalf of the appellant; we express our surprise that the learned judge was not, by way of example, provided with evidence from the Job Centre about the times when the appellant would be required to attend or of any alternative arrangements (or lack of them) for him to attend at another Job Centre, with a map to define the streets he would have to walk on, the bus routes and, most importantly, with a draft of the variations proposed - indeed, all this court was provided with by way of assistance was an aerial photograph of central Porth with marked thereon the home of Ms Phillips and a nearby bus-stop, the DHSS office, the Job Centre and the railway station. In the circumstances, it is not surprising  the learned judge concluded, in the absence of detailed proposals for variation which addressed Ms Phillips’ continuing anxieties and concerns, that her interests had to be given priority. In the judgment of this court, he was entirely correct to do so.
16.	The appeal is therefore dismissed. Mr Rees informed the court that the appellant has recently obtained employment so the proposed variations as to visits to the Job Centre and the DHSS offices are not presently necessary. If any application is made in future, the appellant and those acting for him, would be advised to support it with evidence.