“Consent Is Not Enough” – The Evidential Necessity Requirement for Restraining Orders on Acquittal

Introduction

The Court of Appeal (Criminal Division) decision in Webb-Johnson, R. v ([2025] EWCA Crim 1084) revisits the conditions under which a restraining order may be imposed on a defendant who has been acquitted of a criminal charge. The appellant, Mr Neil Webb-Johnson, faced an indictment for stalking contrary to s 4A Protection from Harassment Act 1997 (PHA 1997). When the Crown ultimately offered no evidence, the trial judge entered a formal verdict of not guilty but—with the consent of the parties—imposed a three-year restraining order under s 5A PHA 1997.

On appeal, the single permitted ground was that the trial judge failed to consider whether there was a significant risk of harassment … in the future, given the six-year gap since any alleged misconduct. The Court of Appeal allowed the appeal, quashed the restraining order, and in doing so laid down an important clarification: an order under s 5A requires positive evidence establishing necessity, and that requirement is not displaced by the defendant’s agreement to the order.

Summary of the Judgment

• The Court held that the restraining order lacked an evidential foundation proving its necessity.
• Neither contemporaneous witness statements nor properly-served hearsay notices addressed why protection was still required six years after the last alleged contact.
• The notice of intention to apply under CrimPR 31.3 was “couched in broad terms” and did not identify the facts relied upon.
• While a defendant’s consent carries weight, agreement alone cannot create the evidence that statute demands.
• The Court quashed the order and reaffirmed the principles in Major, Baldwin, McCarren and Dennis, refining them by stressing the evidential threshold even in uncontested cases.

Analysis

1. Precedents Cited

1. R. v Major [2010] EWCA Crim 3016 – First major authority establishing that a restraining order on acquittal is justified only if “necessary” to prevent future harassment and that the civil standard of proof applies.
2. R. v Baldwin [2021] EWCA Crim 703 – Required the prosecutor to file a detailed CrimPR 31.3 notice and emphasised identification of evidence supporting necessity.
3. R. v Buckley [2023] EWCA Crim 84 – Stated that courts must evaluate future risk rather than past misconduct alone.
4. R. v McCarren [2023] EWCA Crim 1233 – Provided a succinct six-point synopsis (quoted at [21]) of the governing principles.
5. R. v Dennis [2014] EWCA Crim 2331 – Approved brevity in rulings where facts are uncontested, but did not negate the need for evidence.

Although Dennis was invoked by the Crown to justify the judge’s short ruling, the Court of Appeal distinguished it: brevity is acceptable only where evidence of necessity is already apparent. Here, it was entirely absent.

2. Legal Reasoning

The Court’s reasoning hinged on the statutory word “necessary” in s 5A(1) PHA 1997. Necessity has two limbs:

1. Evidential foundation – What facts demonstrate a continuing risk?
2. Proportionality assessment – Is the proposed prohibition no more than is required?

In Webb-Johnson there was:

• No allegation of post-2018 misconduct.
• No complainant statements seeking protection.
• No hearsay notices regarding any oral fears expressed by the Cookes.
• A bare assertion of “residual fears” and the defendant’s willingness to agree.

Consequently, the factual vacuum could not satisfy the civil standard. The Court also reminded that breaching a restraining order carries up to five years’ imprisonment (s 5A(2D)–(2E)), reinforcing why judges must scrutinise applications, however convenient they appear for the parties.

3. Impact of the Decision

• Heightened evidential discipline. Prosecutors must ensure CrimPR 31.3 notices identify concrete facts and attach statements. “Skeleton” notices risk rejection.
• Defence strategy. Even if a client is minded to consent, advisers must consider whether a sustainable evidential basis exists; otherwise the order may later be quashed, potentially exposing the client to future litigation costs or contempt allegations.
• Judicial approach. Trial judges can no longer rely on a united front from counsel. They must actively interrogate the file for material establishing necessity, particularly where years have elapsed since any alleged behaviour.
• Future appeals. Webb-Johnson equips appellants with authority to challenge “consensual” restraining orders that were rubber-stamped without proof of current risk.
• Policy implications. The ruling may lead the CPS to gather up-to-date impact statements from complainants as standard practice before inviting an order on acquittal.

Complex Concepts Simplified

Restraining Order on Acquittal (s 5A PHA 1997)

Unlike a conventional restraining order after conviction (s 5), s 5A enables a court to impose an order even when the defendant is found not guilty, provided it is “necessary” to protect a person from future harassment. The order:

• Is civil in nature but breach constitutes a criminal offence.
• Can be made at the magistrates’ or Crown Court.
• Must be proportionate and specify clear prohibitions.

Civil Standard of Proof

The court decides necessity on the balance of probabilities (more likely than not), not “beyond reasonable doubt.” However, conclusive evidence is still required.

Criminal Procedure Rule 31.3 Notice

Prosecutors seeking a restraining order must serve a formal notice:

1. Summarising the material facts.
2. Identifying the evidence relied upon.
3. Attaching any additional statements.
4. Setting out the precise terms and duration of the order.

Hearsay Notice

If the prosecution intends to rely on out-of-court statements (e.g., an officer reporting what a complainant said), a hearsay notice must be served so the defence can challenge admissibility or ask for the witness to attend.

Conclusion

Webb-Johnson establishes a pivotal refinement to the law on restraining orders after acquittal: the defendant’s consent does not dilute the court’s duty to verify an evidential basis for necessity. Judges must look beyond convenience or mutual agreement, especially where time has passed and no fresh incidents are alleged. The ruling reinforces procedural safeguards, protects individual liberty, and ensures that restraining orders—serious constraints backed by criminal sanction—are imposed only when justified by demonstrable, current risk. Going forward, prosecutors, defence practitioners, and courts alike must bring a sharper evidential focus to any application under s 5A PHA 1997.