Introduction

In R v AVG [2024] EWCA Crim 1672, the Court of Appeal (Criminal Division) addressed the threshold for criminal liability for alleged breaches of a non-molestation order made without notice under section 42 of the Family Law Act 1996. The prosecution appealed, pursuant to section 58 of the Criminal Justice Act 2003, against a terminating ruling of “no case to answer” by a recorder sitting at the Crown Court at Lewes (Hove). The central issues were:

• Whether formal service, or knowledge of the detailed terms of the order, is a prerequisite to criminal liability for breach of a without-notice non-molestation order under section 42A(2) of the Family Law Act 1996.
• Whether an asserted irregularity in the Family Court’s service provision (including digital service via WhatsApp) rendered the order unenforceable in criminal proceedings.
• Whether the trial judge was right to uphold a submission of no case to answer under the test in R v Galbraith.

The Court (Holroyde LJ, Vice-President, Sir Stephen Irwin, and Hilliard J) allowed the prosecution’s appeal, reversed the terminating ruling, and ordered a retrial before a different judge and at a different court centre. The judgment provides authoritative clarification on the meaning of “aware of the existence of the order” in section 42A(2), the status of orders that may be irregularly served, and the proper approach to “no case” submissions in this context.

Summary of the Judgment

The Court of Appeal held that:

• For a without-notice non-molestation order, section 42A(2) requires proof that the accused was aware of the existence of the order at the time of the conduct. It does not require proof that the accused knew all the detailed terms or that the order had been formally served in accordance with every procedural prescription.
• Evidence was capable of proving that the defendant received the order and was aware of its existence (including via WhatsApp), and that any misstatement (“tomorrow” for the hearing date) was a minor, jury-assessable discrepancy.
• Even if there had been an irregularity in service under the Family Procedure Rules, the order remained valid and binding unless and until set aside. The recorder erred in treating asserted non-compliance as defeating the prosecution at the no case stage.
• The recorder wrongly concluded the evidence could not prove awareness or service, and thus erred in law under both limbs of Galbraith. The ruling was reversed, and the case remitted for retrial.

The Court further commented on case management: reasons for a terminating ruling should ordinarily be given in the absence of the jury to preserve the ability to continue the trial if an expedited appeal succeeds. Reporting restrictions under section 71 of the 2003 Act were discharged, but anonymity of the individuals was preserved.

Background and Facts

After the complainant ended her relationship with the defendant on 1 March 2024, a deputy district judge in the Brighton Family Court granted a without-notice non-molestation order on 19 March 2024. The order prohibited communications and attendance at the complainant’s home and included a penal notice. Crucially, the order stated it would be effective once personally served on the defendant or once he was made aware of its terms “by personal service or otherwise.”

The prosecution alleged that the defendant was served via WhatsApp on 22 April 2024 and that he breached the order by phone calls, text messages, and attending the complainant’s home—culminating in an arrest on 27 April while intoxicated. The defence accepted certain conduct but maintained the defendant did not know of the order’s existence or its terms.

The recorder upheld a no case to answer submission, reasoning that:

• Proper service was a prerequisite for liability.
• The Family Court’s “or otherwise” form of service conflicted with the Family Procedure Rules, rendering the order’s service defective.
• The prosecution could not prove the defendant knew the terms of the order.

The prosecution appealed under section 58 of the Criminal Justice Act 2003.

Statutory Framework and Rules

• Family Law Act 1996, sections 42, 45(1) (non-molestation orders; without-notice orders) and 42A(1)–(2) (criminal offence of breach; for without-notice orders, liability only if the accused was aware of the existence of the order at the time of the conduct).
• Family Procedure Rules 2010, Part 6 (service). Rule 6.19 permits alternative service methods and requires specification of method/place, deemed date, and acknowledgment period.
• Criminal Justice Act 2003, sections 58 (prosecution appeals against terminating rulings), 61 (powers on appeal), 67 (grounds to reverse), and section 71 (reporting restrictions).

Precedents Cited and Their Influence

R v Kirby [2019] EWCA Crim 321; [2019] 4 WLR 131

Kirby restates a long-standing principle: a person must obey an apparently valid court order unless and until it is set aside. The Court of Appeal in AVG applied this principle to emphasise that even if the Family Court’s directions about service were arguably irregular, the order remained binding for criminal law purposes unless quashed or varied in the proper forum. Thus, alleged technical defects in service do not, at the threshold, defeat liability for breach.

R v Galbraith [1981] 1 WLR 1039

Galbraith provides the familiar test for ruling on a submission of no case to answer. The Court held that the recorder erred in concluding that the evidence was incapable of supporting the prosecution case. The WhatsApp service, corroborating records, and the complainant’s evidence provided material on which a properly directed jury could convict; the inconsistencies (e.g., one “tomorrow” reference) were for the jury to evaluate, not a basis to withdraw the case.

Legal Reasoning

1. Section 42A(2) sets a knowledge threshold of “existence,” not “terms.”

   The statute requires proof that, at the time of the alleged conduct, the accused was aware that a non-molestation order existed. Parliament’s choice of words was deliberate: an accused cannot sidestep liability by avoiding reading the document. Whether ignorance of particular terms might amount to a “reasonable excuse” is an evidential and fact-specific matter for trial, not a gatekeeping basis for no case to answer.

2. Alternative digital service can be effective; minor inconsistencies go to weight, not admissibility or sufficiency.

   The prosecution evidence was capable of proving that the order was sent via WhatsApp and that the defendant received it. The complainant’s account, the process server’s statements and screenshots, and phone records supported this. A single inconsistency in wording about the hearing date was a jury issue. On that evidence, the recorder’s conclusion that service or awareness could not be proved was not reasonably open under Galbraith.

3. Orders bind unless set aside; alleged FPR irregularities do not negate criminal enforceability.

   Invoking Kirby, the Court held that even if the Family Court’s form of order (including “or otherwise” language) departed from the exact letter of FPR 6.19, the order was valid and binding unless set aside. The possibility of technical irregularity did not entitle the criminal court to treat the order as a nullity. Arguments about irregular service may, at most, bear on “reasonable excuse” if supported by defence evidence; they are not a bar to the case proceeding.

4. Recorder’s errors under Galbraith and case management.

   The recorder erred in law by requiring proof of knowledge of the terms and by treating purported FPR non-compliance as dispositive. He also erred in holding there was no case to answer on both Galbraith limbs despite sufficient evidence to leave to the jury. Separately, he gave reasons for his terminating ruling in the jury’s presence—foreclosing any possibility of continuing the trial on an expedited appeal—and declined a short adjournment to secure a material witness. The Court registered concern about these case management choices.

Impact and Practical Significance

Clarified legal rule

• The prosecution need only prove the defendant was aware of the existence of the without-notice non-molestation order at the time of the alleged breach. Proof of formal service or knowledge of every term is not a prerequisite to criminal liability under section 42A(2).
• Digital methods (e.g., WhatsApp) may effectively bring the order to the defendant’s attention, especially where the Family Court has permitted service “by personal service or otherwise,” and where evidential material (screenshots, call logs) corroborates awareness.
• Alleged defects in service or form do not undermine criminal enforceability unless and until the order is set aside in the Family Court.

For prosecutors

• Gather clear, timestamped proof of digital service: screenshots showing dates/times, messaging headers, delivery/read indicators where available, and call logs corroborating contact.
• Seek to elicit circumstantial evidence of awareness: admissions in communications, references to hearings, or statements implying constraints on contact.
• Anticipate “reasonable excuse” arguments and consider how to rebut them, but resist attempts to convert irregularity arguments into threshold bars at the no case stage.

For defence practitioners

• Technical challenges to service will seldom defeat the prosecution at the threshold. The focus should be on contesting awareness of existence and, where appropriate, adducing evidence of “reasonable excuse.”
• If the Family Court order is thought defective or inappropriate, a prompt application to vary or set aside in that jurisdiction is the proper route; absent that, the order remains binding.
• When awareness is contested, scrutinise digital proof carefully (metadata, continuity, device attribution) and explore inconsistencies that could raise reasonable doubt before the jury.

For judges and case management

• Reserve detailed reasons for terminating rulings until the jury is absent to preserve the possibility of continuation if an expedited section 58 appeal succeeds.
• Where a material witness (e.g., a process server) is temporarily unavailable, short and proportionate adjournments should be considered; refusal may risk an appealable error, especially if the missing evidence is central and uncontested in substance.
• Avoid characterising allegations of repeated breaches of protective orders as “trivial”; proportionality in listing is important, but such cases involve personal safety and the integrity of court orders.

Broader policy implications

• The judgment advances victim protection objectives by discouraging deliberate ignorance of protective orders and validating modern service modalities.
• It preserves fairness by keeping “reasonable excuse” as a live issue at trial, rather than a threshold bar, ensuring defendants can explain why apparent non-compliance might not be criminal in the circumstances.

Complex Concepts Simplified

• Non-molestation order: A Family Court injunction under section 42 FLA 1996 prohibiting harassment, pestering, threats, or contact with an associated person (often a former partner). Breach is a criminal offence under section 42A.
• Without notice order (ex parte): Made without the respondent present, often to provide immediate protection. For breach prosecutions, section 42A(2) requires proof the accused knew the order existed when the conduct occurred.
• Penal notice: A warning on an order that breach may amount to a criminal offence or contempt, with potential imprisonment or fines.
• Service and substituted/alternative service: The formal process of bringing court documents to a party’s attention. The FPR permit alternative methods (including electronic) where directed by the court, specifying method, deemed date, and response period.
• “Orders bind unless set aside” (Kirby principle): Even if there is a suspected procedural irregularity, an order must be obeyed unless a court varies or quashes it. Ignoring an order invites criminal or contempt consequences.
• “Terminating ruling” and section 58 CJA 2003: A ruling that would otherwise bring the prosecution to an end (e.g., upholding no case to answer). The prosecution can appeal such rulings with an acquittal undertaking, and the Court of Appeal can reverse erroneous rulings.
• Galbraith test: A case should go to the jury if there is evidence on which a reasonable jury, properly directed, could convict. Only if the evidence is so weak or inconsistent that no reasonable jury could convict should the judge stop the case.
• Reasonable excuse: A statutory defence in section 42A(1). The accused may argue there was a legitimate, reasonable justification for the conduct (e.g., exceptional circumstances). It is a matter for the jury on the facts.
• Reporting restrictions: Statutory and court-imposed limits on publication to protect fairness or privacy. Here, restrictions were discharged, but anonymity of the persons involved remains required.

Procedural Observations and Guidance

• Reasons for terminating rulings should ordinarily be delivered in the absence of the jury to keep a pathway open for an expedited appeal and possible resumption of trial.
• Court time management must be balanced with fairness: parties should have minimal reasonable opportunity to prepare witnesses and present critical evidence.
• When digital service is relied upon, best practice includes keeping complete screenshots showing dates/times, preserving metadata where possible, and securing witness availability of the process server.

Reporting and Anonymity

The Court discharged the default reporting restrictions under section 71 of the Criminal Justice Act 2003 and permitted publication of the judgment as approved. However, the parties remain anonymised in the judgment, and any report must not include additional identifying information about the defendant, complainant, or process server.

Conclusion

R v AVG establishes a clear and practicable rule for prosecuting breaches of without-notice non-molestation orders:

• Awareness of the existence of the order is sufficient to found criminal liability under section 42A(2) FLA 1996; knowledge of specific terms is not a threshold requirement.
• Digital or alternative service that makes an accused aware of the order can be evidentially sufficient; minor inconsistencies are jury matters.
• Orders must be obeyed unless set aside. Alleged procedural defects in service do not void an otherwise apparently valid order for criminal purposes.
• Trial judges must apply Galbraith carefully and avoid withdrawing cases from the jury where there is a realistic evidential basis on which a jury could convict.

The decision strengthens the enforceability of protective orders and aligns criminal procedure with the realities of modern communication, while maintaining fairness through the availability of a “reasonable excuse” defence at trial and the ability to challenge or vary orders in the Family Court. It will guide future prosecutions and case management decisions in the increasingly common context of digital service of protective injunctions.