No: 2010/5034/A5 
Neutral Citation Number: [2010] EWCA Crim 3016
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 1 December 2010
 
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES 
MR JUSTICE CALVERT SMITH 
MR JUSTICE GRIFFITH WILLIAMS 
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R E G I N A 

v 

TARA MAJOR
 
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Mr A Johnson appeared on behalf of the Appellant
Miss B Todd appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE GRIFFITH WILLIAMS:  Tara Major was charged on an indictment with an offence of putting a person in fear of violence through harassment, contrary to section 4 of the Protection from Harassment Act 1997 ["the Act"].  At the end of a five day trial at Maidstone Crown Court she was acquitted of count 1, but the jury could not agree on its verdict on the alternative offence of harassment contrary to section 2 of the Act and was discharged from giving a verdict in respect of it.
2.	The trial judge (Mr Recorder George QC) at the invitation of the prosecution, then made a restraining order on acquittal pursuant to the provisions of section 5A of the Act.
3.	Her application to appeal sentence has been referred to the full court by the Registrar.  We grant leave.
4.	We consider first the relevant parts of the Act.  Protection from Harassment Act 1997:
"1  Prohibition of harassment 
 (1) A person must not pursue a course of conduct—
 (a) which amounts to harassment of another, and 
 (b) which he knows or ought to know amounts to harassment of the other.
 (2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
...  
2  Offence of harassment  
 (1) A person who pursues a course of conduct in breach of section 1(1) or 1A is guilty of an offence.
 (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
3 Civil Remedy 
 (1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question... 
4 Putting people in fear of violence 
 (1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
 (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.
... 
 (4) A person guilty of an offence under this section is liable—
 (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or 
 (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
 (5) If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2.
 (6)The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (5) convicted before it of an offence under section 2 as a magistrates’ court would have on convicting him of the offence. 
5  Restraining orders 
... 
 (2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from conduct which—
 (a) amounts to harassment, or 
 (b) will cause a fear of violence 
prohibit the defendant from doing anything described in the order.
 (3) The order may have effect for a specified period or until further order.
 (3A) In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3.
 (4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
 (4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).
 (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.
 (6) A person guilty of an offence under this section is liable—
 (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or
 (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
 (7) The court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.
5A Restraining orders on acquittal (inserted by section 12(5) of the Domestic Violence Crime and Victims Act 2004 and in force from 30th September 2009)
 (1) A court before which a person ('the defendant') is acquitted of an offence may, if it considers it necessary to do so to protect a person from 
Harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.
 (2) Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one.
...  
 (5) A person made subject to an order under this section has the same right of appeal against the order as if—
 (a) he had been convicted of the offence in question before the court which made the order, and 
 (b) the order had been made under section 5.
7 Interpretation of this group of sections 
 (1) This section applies for the interpretation of sections 1 to 5.
 (2) References to harassing a person include alarming the person or causing the person distress.
 (3) A 'course of conduct' must involve‑ 
 (a) in the case of conduct in relation to a single person (see section 1(1)) conduct on at least two occasions in relation to that person.
...  
 (4) 'Conduct' includes speech."
It will be noted that section 7(2) apart, the Act contains no definition of "harassment".
5.	Although a restraining order on acquittal is a Civil Behavioural Order ‑ see Part 50 of the Civil Procedure Rules 2010 ‑ a right of appeal to this court is provided for in section 5A(5) and Regulation 3(2)(p) of the Criminal Defence Service (General) (No 2) Regulations 2001 (as amended) provides that: "... proceedings under section 5A of the Protection from Harassment Act 1997 relating to restraining orders on acquittal... " are orders made in "criminal proceedings" and so the Court of Appeal or the Registrar has power to grant a representation order in respect of an application for permission to appeal or an appeal from such an order.
6.	As this is the first occasion that a restraining order following acquittal has been considered by this court, our attention has been drawn by the Registrar to regulation 3(2)(q) which provides that: 
"proceedings before the Crown Court or the Court of Appeal [our emphasis] relating to serious crime prevention orders and arising by virtue of sections 19, 20, 21 or 24 of the Serious Crime Act 2007 are criminal proceedings."
7.	We consider that the absence of any mention in sub‑paragraph (p) to the Crown Court or the Court of Appeal is of no consequence in the light of the clear wording of section 5A(2), section 5(6) and section 5A(4) of the Act which provide the same right of appeal where restraining orders are made on acquittal as in cases where they are made following conviction. 
The allegations 
8.	S was at the material time a 16‑year‑old student who kept a horse at a stable in Leysdown, where the appellant also kept her horse.  Her younger sister and the appellant's daughter had been friends and their respective families got on well, but relations deteriorated following a complaint by the appellant about her daughter being bullied.  S alleged that on a number of occasions, starting in the summer holidays of 2008 and ending on 28th October 2008, the appellant was threatening and abusive towards her, on occasions causing her distress.  She said that she was called a "slag" and a "slut" and on 2nd October 2008 the appellant told her that she was going to get people to beat her up.  On that same occasion she told S that her father was a paedophile.  There were broadly speaking six separate incidents.  A total of five witnesses gave evidence for the prosecution to confirm in part the allegations made by S.  Interviewed under caution the appellant denied the allegations which she described as ridiculous.  She said that she and her daughter would go out of their way to avoid S and her family and alleged that S had thrown stones at her car damaging it.  The appellant gave evidence to that effect and called a number of witnesses who confirmed various details of her account.  
9.	To convict the appellant of the section 4 offence the jury had to be sure that she pursued a course of conduct and so there must have been at least two occasions which harassed S and which she knew or ought to have known amounted to harassment of S.  In the context of this case the harassment was a course of conduct directed at S which was calculated to cause her alarm and distress.  To convict the jury had to be sure additionally that the appellant's conduct caused S to fear that violence would be used against her.  The acquittal of the appellant may well be explained by the jury's conclusion that there was only the one occasion on 2nd October 2008 when there was a direct threat of violence.  
10.	After the jury had acquitted the appellant of the section 4 offence and been discharged from returning a verdict on the alternative section 2 offence, the Recorder heard submissions from Mr Johnson (counsel for the appellant).  Mr Johnson accepted that as Parliament clearly intended that a restraining order could be made following an acquittal, it was difficult for him to argue that the making of an order would be unfair.  But he submitted that the court should be cautious about making an order which risked contradicting the verdict of the jury.  He submitted that an order should only be made if there was clear evidence of harassment.  The Recorder then said:
"I am satisfied that this is a case where it is necessary to protect S from harassment by the defendant.  It seems to me that the sensible thing to do is to do as the Crown suggest, and for me to make an order under section 5A of the Protection from Harassment Act (1995) [sic], that the defendant is not to contact directly or indirectly S.  I am going to limit it for a period of 12 months, by which time S will be 18.  I do not believe that the order would be necessary thereafter.  
This is plainly not to be taken as a finding of any form of guilt against the defendant, because she has been acquitted on the principal matter.  But I do not believe that this restriction will, in fact, impose any unfair form of restriction on the defendant's activities in any event, any more than has the bail condition hitherto."
The condition of the appellant's bail was that she was prohibited from contacting directly or indirectly S and the restraining order was drawn up in those terms.
11.	The grounds of appeal are (1) that the learned Recorder erred in law by imposing a restraining order where the uncontested facts of the case did not provide foundation for such an order and (2) that alternatively the learned Recorder erred in law by imposing a restraining order without making a finding as to the factual basis for imposing that order.  
12.	Mr Johnson, for whose concise and cogent submissions this court is grateful, submitted that the power to make a restraining order on acquittal is unique because unlike a bind over order it can be made without the consent of the defendant.  In his skeleton argument he submitted, citing R v Middlesex Crown Court ex parte Khan [1997] 161 JP 240, that like a binding over order it should be used rarely where there has been an acquittal on the merits.  He submitted that where there has been an acquittal on the merits a restraining order should be made only when there is uncontested evidence to justify it, so as to respect the verdict of the jury.  He submitted that in this case there was no uncontested evidence upon which an order could be based.  He submitted that the making of such an order breaches the appellant's Article 6(2) rights and cited Minelli v Switzerland 5 EHRR 54 at paragraph 37, but we observe that that was a decision in which an acquitted defendant had been refused his costs on grounds which reflected the court's opinion that he was in fact guilty.  In this case the Recorder explained and indeed emphasised that the order was in no way a reflection of the guilt of the appellant.
13.	We cannot accept that an order may only be made on uncontested facts or used only rarely.  That would be to ignore the will of Parliament that provided there is a need to protect a victim a restraining order should be made.  The Act was intended to build on the provisions of section 4(1)(a) and section 5 of the Public Order Act 1986 which were intended to address the menace of stalking, although it was intended to provide protection as well from disruptive neighbours and those who targeted people because of the colour of their skin: see Director of Public Prosecutions v Dziurzynski [2002] EWHC 1380 (Admin) at paragraphs 27 and 28; but the sanctions required a conviction.  Section 5A(1) of the Act was inserted to deal with those cases where there is clear evidence that the victim needs protection but there is insufficient evidence to convict of the particular charges before the court.  The victim need not have been blameless and the court's added powers avoid the need for alternative proceedings to protect the victim, added costs and delay.  
14.	A restraining order on acquittal may prohibit the defendant doing acts that were not the subject matter of the charge in respect of which he or she was acquitted ‑ see section 5A(1) ‑ and the parties may adduce further evidence relevant to the court's determination as to whether it was necessary to make such an order ‑ see section 5(3) and the Criminal Procedure Rules 50.4(2).   These provisions in many respects anticipated the overriding objective of the Criminal Procedure Rules.
15.	The fact that a jury was not sure that the conduct alleged amounted to harassment is not necessarily a ground for concluding that there is no risk of harassment in the future.  The section is silent as to the standard of proof which must be satisfied before an order may be made, but the order is a civil order and so the ordinary civil standard of proof applies.  Applying that standard a court may well conclude that whereas the conduct alleged has not been proved to the required criminal standard, it has been proved on the balance of probabilities and such a conclusion would not contradict the verdict of a jury or implicitly suggest that the defendant was in fact guilty.  
16.	Section 5A addresses a future risk, the evidential basis for such an assessment being the conduct of the defendant.  The evidence as to that will usually be the evidence given at trial, but it can be further evidence (see above).  The evidence does not have to establish on the balance of probabilities that there has been harassment.  It is enough if the evidence establishes conduct which falls short of harassment but which may well in the judgment of the sentencing judge, if repeated, amount to harassment, so making an order necessary.  Compliance by a defendant with bail conditions which prohibited conduct with the victim, while a consideration, may not be a ground for not making an order.  A court may conclude that compliance with the bail conditions was explained by the defendant's concerns that he or she may be remanded in custody and that without such a sanction the victim would be at risk.  For all those reasons, we reject the first ground of appeal.
17.	Is a judge required to identify the factual basis for imposing an order?  In short, yes.  These proceedings are no different to any other proceedings leading to sentence where the factual basis has to be established and the sentencing judge has to exercise a judgment on the facts.  It must not be overlooked that absent a conviction it may not be possible to determine the factual basis for the order.  
18.	We observe that whilst a restraining order made on acquittal pursuant to section 5A of the Act is not a sentence, section 174(1) of the Criminal Justice Act 2003 provides that any court passing sentence must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed.  We observe also that in respect of binding over orders, the Consolidated Criminal Practice Direction at III.31.4 provides that a court making a binding over order should state its reasons for so doing.  In our judgment the requirements of that section and the Consolidated Criminal Practice Direction should be applied when restraining orders on acquittal are made.   We observe also that it may be, save in the clearest of cases, to ensure that an impression is not given that the judge is going behind the verdict of the jury, that the judge may want to consider whether the case should be adjourned to the following day so that the matter can be fully considered and reasons for his or her decision given.  
19.	We turn to consider whether the reasons given by the Recorder in this case were sufficient.  He had the undoubted advantage as the trial judge of having heard the evidence and there can be no doubt that upon that evidence he was clearly satisfied that S, whilst still a young person, needed to be protected from further harassment leading to alarm and distress.  But there were, as we indicated earlier in this judgment, a number of allegations, all of which were challenged and in respect of all of which it was said had been made maliciously.  We do not know on what particular aspects of the case the Recorder relied and although it would appear that he applied the civil standard of proof that is not readily apparent from his remarks.
20.	While there may well have been good reasons for making the order, in our judgment they are not apparent from the Recorder's remarks and we can therefore reach no conclusion as to whether or not the making of the order in this case was in fact justified.  It follows that the second ground of appeal is made out and we quash the restraining order.  To that extent the appeal succeeds.  
21.	We would add our concerns about the terms of the proforma restraining order used in the Crown Court where orders under section 5A(1) of the Protection from Harassment Act 1997 are made.  The printed order is in these terms:
"This order is made to protect [there is then a space for the victim's name to be inserted] from further conduct which amounts to harassment or will cause fear of violence." 
It may be that the word "further" would need to be deleted from the order to reflect the amendment to section 5(2) of the Act by the Serious Organised Crime and Police Act 2005, omitting the word "further" from the phrase "further conduct".  We are concerned also that the words "or will cause fear of violence" offend the provisions of section 5A(1) and they too should be removed.  We invite those who are responsible for the provision of this order to have regard to those observations and to consider whether an amendment is required.